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Justice Dept. Backs Narrow Reading of Title IX

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Washington--The Reagan Administration was harshly criticized last week for its decision to argue before the Supreme Court for a narrow interpretation of the law that aims to bar sex discrimination in education.

Numerous civil-rights groups issued statements castigating the Administration for its position, which was outlined in a legal brief filed with the Court on Aug. 5 in Grove City College v. Bell. In addition, a bipartisan group of 47 representatives and three senators filed an unusual "friend-of-the-court" brief with the Court last week arguing that the Administration's stance seriously misinterprets the intent of the law, Title IX of the Education Amendments of 1972.

At issue in the Grove City case is the right of the Education Department to cut off funds to the small, independent college in Pennsylvania because it refuses to sign a statement assuring the government that it will not practice gender discrimination.

College Questions Compliance

The college contends that it does not have to comply with Title IX, which prohibits any educational "program or activity" receiving federal financial assistance from discriminating on the basis of sex, because it receives no aid directly. The government argues that the law applies to the college because some of its students receive federal tuition grants.

The dispute between the civil-rights groups and the Administration centers on the Administration's interpretation of the "program or activity" clause in the statute.

Previous administrations have contended that when a school or college receives any amount of federal aid of any type, the institution itself is the "program or activity" receiving aid and, therefore, it must comply with the law universally.

But in the brief that it filed with the Court last week, the Reagan Justice Department rejected that longstanding position and said that the college need only comply with Title IX in its financial-aid department because that department is the only direct recipient of federal aid.

"The 'education program or activity' that receives these federal grants is the college's financial aid program, and it is that program that must comply with the requirements of Title IX," the Justice Department said in its brief. "Consequently, subjecting schools whose students receive federal aid to the requirements of Title IX satisfies the statute's program-specific nature."

Furthermore, the department said that the U.S. Court of Appeals for the Third Circuit "[did] not properly construe the statute" when it ruled last summer that a student's receipt of federal grants obligated the college to comply with the law in all of its programs.

Acceptance of the appeals court's reasoning "would wholly obliterate the 'program or activity' limitations contained" in the law, the department said. "Since Title IX coverage does not depend on the amount of federal aid received, the proposition advanced by the court of appeals would mean that if one student paid for his education with one dollar of [federal] funds, the entire school would automatically be subject to Title IX.

"In sum, the question of Title IX coverage should be resolved not by following to the end the economic ripples generated by federal aid, but by a common-sense discernment of what, in the most natural way, can be considered the educational 'program or activity' assisted by federal aid," the department continued. "Under that approach, we believe that the natural candidate as the 'program or activity' of Grove City assisted by federal student aid is the college's entire financial aid program."

'Absence of Rights'

Margaret Kohn, a lawyer for the National Women's Law Center who has filed a "friend-of-the-court" brief in the case, said that such an interpretation of Title IX threatens to produce a "patchwork of rights and the absence of rights" in schools and colleges across the country.

"You would have a situation where your rights would be protected in one classroom because it receives federal funds but not in another because it doesn't," Ms. Kohn said.

She also pointed out that federal laws barring discrimination on the basis of race and handicap contain similar "program-specificity" clauses and, therefore, could be affected by the Court's decision in the Grove City case.

"Regrettably, the Administration's position goes beyond sex discrimination," she said. "If the Court accepts this position, it would certainly take the teeth out of Title IX and most other civil-rights statutes."

Ms. Kohn added that she has filed a motion with the Court requesting permission to offer oral arguments supporting the longstanding interpretation of Title IX when the case is heard. That is expected to occur sometime this winter.

Recent actions in the Congress also support the position taken by Ms. Kohn and her allies.

'Sense of the House'

On Aug. 5, the House Education and Labor Committee approved a "sense of the House" resolution reaffirming the Congress's intention that Title IX and the regulations issued under it "should not be amended or altered in any manner which would lessen the comprehensive coverage of such statute in eliminating gender discrimination throughout the American educational system." The full House is expected to act on the resolution in September. An identical resolution is pending before the Senate Subcommittee on Education, Arts, and the Humanities.

The positions outlined in the resolutions are largely echoed in the brief filed with the Court by the Congressional supporters of Title IX last week.

"The question in this case is whether Congress intended that Title IX be given the comprehensive interpretation necessary to eliminate sex discrimination from educational institutions," the representatives and senators said. "The answer is clearly yes, irrespective of whether an institution receives direct or indirect aid to all or some of its programs.

"[We] strongly urge this Court to reject [Grove City's] effort to limit the protections afforded by Title IX just as Congress has rejected it: only a broad and comprehensive application of Title IX comports with the intention of Congress," they continued. "Where an institution such as [Grove City] receives the general benefit of federally subsidized tuition payments, it cannot avoid the imposition of Title IX's prohibition against gender discrimination by contending that the prohibition applies only to those expenditures that are directly traced to a federal dollar that was given to the institution for a specific purpose."

Later in the week, Attorney General William French Smith sent a letter to Senator Bob Dole, Republican of Kansas and one of the supporters of the brief, expressing "disappointment" with those positions.

"Congress makes the law and we have the sworn duty to enforce it the way it is--not the way we or others think it should be," the Attorney General said. "It is not the job of the Department of Justice to argue in favor of the interpretation which we like as a matter of policy or which reflects the latest Gallup poll. Instead, our decision must be--and was--determined by what we believe Congress's policy decisions to have been."

"We concluded two years ago that when Title IX refers to 'any education program or activity receiving federal financial assistance,' it means 'program or activity,"' he continued. "That is, we think the statute on its face requires program specificity."

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