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High Court Asked To Enforce Title IX 'Surgically'

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Washington--A Justice Department lawyer told the U.S. Supreme Court last week that the federal law barring sex discrimination in education should be applied "surgically" to the component parts of a school or college, not to institutions generally.

Acting Solicitor General Paul M. Bator told the Justices during oral arguments in Grove City College v. Bell (Case No. 83-792) that they need only to rule on the narrow question of whether the college's financial-aid department is a recipient of federal aid because about 20 percent of its students receive federal grants.

"The Court's decision does not have to spill over," the Administration lawyer said. Title IX of the Education Amendments of 1972 "doesn't say that the college has to receive funds, only that it conducts a program that receives financial aid."

Mr. Bator outlined the Administration's position in what observers generally agree is one of the most important civil-rights cases to be heard by the Court this term. The Court's decision, expected to be handed down next spring, could affect the reading not only of Title IX but also of similar laws prohibiting bias against the handicapped and members of minority groups.

The dispute over Title IX's scope revolves around a phrase in the law stating that any educational "program or activity" receiving federal aid must comply with the law's anti-discrimination provisions. Federal regulations define institutions that receive any amount of federal aid, either directly or indirectly, as the "program or activity" affected by the law. This position was accepted by the Nixon, Ford, and Carter Administrations and, initially, by the Reagan Administration. The current Administration, however, changed its position shortly before the Grove City case reached the Court and now argues that only those parts of a school or college that receive aid directly--and not the college as a whole--must comply with the law.

Although the college does not participate in the aid program as such, some of its students receive federal Pell Grants through the Education Department's alternative distribution system. Under this plan, students receive funds directly. Normally, Pell Grants funds are given directly to colleges without passing through students' hands.

For their students to receive these funds, colleges are required to sign a form assuring that they will not discriminate on the basis of sex and that they will abide by all current and future Title IX regulations.

It was Grove City's decision not to sign this form that resulted in the government's filing suit against the college and subsequent lower-court decisions denying aid to its students.

Last week's arguments were somewhat unusual in that no parties argued in defense of the federal government's longstanding "institutional approach" to Title IX enforcement. But briefs supporting that position were filed with the Court by numerous civil-rights organizations and a bipartisan group of U.S. representatives and senators.

The Administration's decision to switch its position in the case marked the second time that it took the highly controversial step of abandoning longstanding federal civil-rights policy while arguing a case before the Court. Last year, in a case involving Bob Jones University and the Goldsboro (N.C.) Christian Schools, the Administration argued unsuccessfully that the Internal Revenue Service did not have the right to deny tax-exempt status to private educational institutions that practice race discrimination. (See Education Week, June 1, 1983.)

Complicated Issue

The issue of Title IX's scope has been complicated not only by the Administration's change in position but also by conflicting lower-court opinions on the meaning of "program or activity." In addition, last year the Court noted in North Haven Board of Education v. Bell, a case concerning the applicability of the law to employment practices, that Title IX is a "program-specific" statute, but it expressly declined to define that term. (See Education Week, May 26, 1982.)

According to Mr. Bator, when the Congress passed the law in 1972, it was concerned not only with "eliminating discrimination in all of its forms, but also about the breadth of federal intervention in education."

"Federal regulations are always a situation of overkill," the Administration lawyer said. "Congress opted in 1972 for a more surgical form of regulatory intervention; it was worried about regulation on a pervasive basis. Congress, no doubt, intended to end discrimination in the handing out of financial aid."

"Then what other areas are not covered?" asked Associate Justice Byron White. "If a student takes out a loan and attends 20 or 30 classes, are all of those classes covered?"

"Our position is that the money does not follow the student around from class to class," answered Mr. Bator. "The money does not follow the student to the athletic department, for example."

But, he quickly added, athletic scholarships "cannot be a device for favoring men over women."

"What about employment?" Justice White asked.

"Title IX deals with employment on the same program-specific basis,'' he answered.

Mr. Bator also came under intense questioning by Justice White on the issue of the Administration's switch in position in the case. "We are not trying to hide the fact that there has been a restudy of this matter," the lawyer said.

He then defended the Administration's new position, calling it "the middle ground" between the positions taken by the college, which says it is not covered by Title IX at all, and the U.S. Court of Appeals for the Third Circuit, which ruled that the entire institution was covered by the law.

"The circuit court said this was all or nothing, and that has resulted in these diametrically opposed positions," he said. "It is that dilemma that we seek to resolve, the premise that this is an all-or-nothing situation."

Later, Mr. Bator said the Administration "respects Grove City's sincerity when it says it does not want to be engulfed in the federal government's embrace simply because some of its students show up with federal dollars in their pockets."

"But all it needs to do to avoid this problem is to say to its students, 'Don't take the federal money, we will give you our own,"' he continued.

"But wouldn't that discriminate against recipients of federal grants?" asked Chief Justice Warren E. Burger.

"Not if the college gives its students an equal amount of aid," Mr. Bator said. "Colleges must be allowed to opt out of the program. All we are asking Grove City to do is not discriminate in its distribution of financial aid. That is not a harsh quid pro quo."

David M. Lascell, the lawyer representing Grove City, said the college prides itself on not seeking federal aid, adding that the decision has resulted in increased efficiency and lower costs for students. The main question at hand, he said, is whether the college is a "recipient of aid" as defined by the law and the regulations.

"'Receive' has a plain meaning; it is not a word most people have difficulty understanding, save for lawyers arguing a case," Mr. Lascell said. "Receive, in public understanding, means to get funds, and Grove City does not do that. It has made a conscious decision not to participate in aid programs."

"What is at issue here is whether we must expel our students or bow to federal regulations," Mr. Lascell concluded.

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