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Conflicting Rulings May Send Title IX Questions to High Court

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A federal appeals court in Philadelphia has ruled that Grove City College, a private institution that accepts no direct federal aid but whose students receive federal tuition grants, must comply with federal laws barring sex discrimination in education.

Because that decision conflicts with other recent federal court decisions, the U.S. Supreme Court will almost surely be asked to determine the circumstances under which educational institutions and their component programs must comply with Title IX of the Education Amendments of 1972.

Justified in Denial

The U.S. Court of Appeals for the Third Circuit also held in its Aug. 12 decision that the Education Department (ed) is justified in denying the tuition grants to students who attend the small Pennsylvania college because the school refuses to sign a document assuring the government that it complies with Title IX.

Spokesmen for the college have said it is very likely that the school will ask the Supreme Court to overturn the Third Circuit ruling.

At least two other lawsuits involving the scope of Title IX, one brought against Temple University, the other against the University of Richmond, are also working their way through the lower federal courts.

Civil-rights advocates said last week that the Third Circuit's decision in Grove City College v. Bell is significant because the federal appeals court ruled that entire educational institutions, and not just their component programs and activities that receive federal funds directly, are subject to Title IX.

Title IX states, in part, that "no person in the United States shall, on the basis of sex, be excluded from participation in, be denied the benefits of, or be subjected to discrimination under any education program or activity receiving federal financial assistance."

A number of federal district and appeals courts have issued conflicting rulings on the so-called "program specific" nature of Title IX.

In addition, the Reagan Administration is currently reassessing ed regulations that extend Title IX restrictions against sex discrimination to entire educational institutions. Secretary of Education Terrel H. Bell has said he favors narrowing the coverage of Title IX to only those parts of schools and colleges that directly receive federal aid.

Earlier this year, the Supreme Court, in North Haven Board of Education v. Bell, held that ed's authority to enforce Title IX's anti-discrimination restrictions is subject to the law's program-specific nature. The Court, however, declined to define precisely what a "program" is with respect to Title IX enforcement. (See Education Week, May 26, 1982.)

In the Grove City case, the Third Circuit conceded that "Title IX's provisions, on their face, are program-specific."

"We cannot agree, however, that Congress intended to limit the purpose and operation of Title IX by a narrow and illogical interpretation of its program-specific provisions," the panel of judges continued.

They went on to say that "where the federal government furnishes indirect or non-earmarked aid to an institution ... the institution itself must be the 'program."'

"Were it otherwise, and if it had to be demonstrated that each individ-ual component of an integrated educational institution had in fact received the particular monies for a particular purpose, no termination sanction could ever effectively be imposed," the judges said.

The appeals panel reasoned that "the remedy to be ordered for failure to comply with Title IX is as extensive as the program benefitted by the federal funds involved."

"Because the federal grants made to Grove's students necessarily inure to the benefit of the entire College, the 'program' must be defined as the entire institution of Grove City College," the panel said. "However 'program' may be defined when a direct federal grant is involved ... we are not persuaded that where non-earmarked or indirect funding is involved, those statutes proscribing discrimination should be rendered ineffective and without force."

In making that decision, the court rejected a federal district judge's reasoning in a recent Title IX case involving the University of Richmond.

Barred from Investigation

In that case, University of Richmond v. Bell, the U.S. District Court for the Eastern District of Virginia on July 8 barred ed from investigating the university's athletic department because it does not receive direct federal aid.

The court also enjoined ed "from investigating any other programs or activities at an educational institution" within the court's jurisdiction "absent a showing that such said program or activity is the recipient of direct federal financial assistance."

In the Richmond case, U.S. District Judge D. Dortch Warriner rejected ed's claim because the Supreme Court, in the North Haven case, "devised no nexus test for determining when a nondirect recipient program is nevertheless 'benefitting' from federal assistance so as to bring it within the Court's program-specific ruling."

"While a strained reading of the ed regulations might result in a conclusion that the regulations are not inconsistent with" the North Haven decision, the judge said, "a fair reading indicates that the ed has attempted to create an institutional approach in its regulations. ... The ed's practice in this matter under the guise of their regulations is contrary to the language of the governing statute, the intent of Congress in enacting Title IX, and the program-specific ruling of North Haven."

Judge Warriner said that he could not countenance "the ed's attempt to bootstrap itself through its regulations to make, by necessary implication, all programs and activities of a private university subject to its control when any program or activity within the institution, or the institution, or the students themselves receive what it determines to be 'federal financial assistance."'

A spokesman for ed said last week that the department has not yet decided whether to appeal Judge Warriner's ruling in the Richmond case.

Earlier this month, the chairman of the U.S. Commission on Civil Rights warned Secretary Bell in a letter that Judge Warriner's ruling in the Richmond case, if left uncontested, could be interpreted as exempting elementary- and secondary-school programs funded under the new federal education block grant from compliance with Title IX and related civil-rights statutes protecting the rights of the handicapped and minorities.

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