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School-Wide Application of Title IX Called Original Intent of Congress

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Washington--Former Senator Birch Bayh, who was an original sponsor of Title IX of the Education Amendments of 1972, last week called the Supreme Court's ruling in Grove City College v. Bell "a mistaken interpretation."

"There is no doubt whatsoever in my mind that the Supreme Court's decision in Grove City College v. Bell leaves Title IX and, by implication, the other statutes related to it, weaker than we intended them to be," said Mr. Bayh, who testified during the second round of hearings on the bill before the House Judiciary Subcommittee on Civil and Constitutional Rights and the House Education and Labor Committee.

"I simply want to stress that I have no doubt that we did intend institution-wide coverage for colleges and universities," said the Indiana Democrat. He urged the Congress to enact legislation to make that intent clear once and for all.

In its February ruling in the Grove City case, the Court held that the Pennsylvania college was required to comply with Title IX only in the "program or activity" within the in-stitution that received federal assistance--in this case, the college's student-aid program--and not on an institution-wide basis. (See Education Week, March 7, 1984.)

Under the proposed bill, the language in Title IX and three other anti-discrimination statutes would be changed to delete the reference to "program or activity" and substitute the term "recipient."

HR 5490 and S 2568 would affect Title VI of the Civil Rights Act of 1964, Section 504 of the Rehabilitation Act of 1973, and the Age Discrimination Act of 1975, which prohibit discrimination on the basis of race, disability, and age, respectively, in programs or activities receiving federal assistance.

Congressional Intent

Representative Peter W. Rodino Jr., Democrat of New Jersey and chairman of the House Judiciary Committee, also testified on behalf of the proposed legislation.

"From my experience and deep involvement in the debate and passage of the 1964 [civil-rights] act and the other, subsequent legislation that HR 5490 will clarify, I know well what Congress intended with those laws," said Representative Rodino.

"Until last year, every Administration and every court correctly read Congressional intent: that the laws were to be interpreted broadly to cover all the activities of recipients of taxpayer money," he said.

Representative Rodino charged that the labeling of the proposed legislation by Administration officials as "radical" was "rhetoric [that] has a familiar ring" and is part of the "subtle kind of assault on tenets that have been well accepted."

"The same terms were used two years ago by the Reagan Administration when it fought extension of the Voting Rights Act," he said. "As with the Voting Rights Act, there is nothing radical about HR 5490. It merely restores the law to where it was before the Grove City decision."

When asked whether he could identify any Administration-based attempts to strengthen civil-rights law, Mr. Rodino responded, "I regret to say that I cannot find [any]. I haven't seen a scintilla of effort."

Civil-Rights Directors

A panel of former directors of the office for civil rights in the Department of Health, Education, and Welfare also spoke on behalf of the bill. All civil-rights officials responsible for administering the anti-discrimination statutes, they said, believed the statutes' original sponsors intended institution-wide coverage.

Cynthia G. Brown, who served as the director of ocr from 1980 to 1981, said she was surprised by the Supreme Court's February ruling. "The decision was surprising because every Administration that has been charged with enforcing Title IX, as well as Title VI of the Civil Rights Act of 1964--after which Title IX was modeled--has interpreted coverage of these anti-discrimination laws in the same broad manner," she said.

"Unless HR 5490 is adopted, federal civil-rights enforcement will be permanently damaged," Ms. Brown said. "That would be terribly unfortunate because, while there has been great progress in providing equal opportunity for program beneficiaries of institutions receiving federal fund support, the job is not completed. And it may never be if the narrow interpretation of the Supreme Court is allowed to stand."

'Bureaucratic Nightmare'

Joining Ms. Brown in her support were David Tatel, director of ocr from 1977 to 1979, and F. Peter Libassi, who served as director from 1966 to 1968.

Mr. Tatel testified that the Court's interpretation of Title IX would bring about "a bureaucratic nightmare" in which institutions would be forced to hire accountants to trace funds to their programs and lawyers to argue the process.

Mr. Libassi advised the Congress to "resist the temptation to tinker with" the bill by amending or changing it, and to bring it to a floor vote quickly.

Joseph L. Rauh Jr., counsel for the Leadership Conference on Civil Rights, testified on behalf of the 160 civil-rights, women's, religious, labor, handicapped, senior citizens', and other organizations that make up the conference.

"If Congress fails to act and if the Grove City College case is allowed to stand," he said, "there is no longer any federal law which comprehensively prohibits sex discrimination in education."

"We are united in our belief that the enactment of HR 5490 ... is a necessary prerequisite to further civil-rights advancement in our country," he said on behalf of the conference.

Opposition to Bill

Only one voice of opposition was raised during the four days of hearings on the proposed civil-rights act. Representative John N. Erlenborn, Republican of Illinois and ranking minority member on the Education and Labor Committee, asked why the language in Title IX had not been originally worded to imply institution-wide coverage.

"This question could have been settled long before the Supreme Court reached its decision," Mr. Erlenborn said, by amending the law to include the term "institution."

"We must be more careful about using words that have the meaning that they intend," he added.

Countering Representative Erlenborn's charge, Mr. Bayh asserted that "the previous language was as plain as the nose on my face," and added that passing the proposed legislation would not be "just a lesson in English" but a reaffirmation of the intent of Title IX as those who proposed it saw it.

"We should never, under any circumstances, turn the clock back once we have had the courage to pass strong laws that made discrimination tough to get away with," Mr. Bayh said.

"Here we are, nearly 30 years to the day after the Supreme Court's decision in Brown v. Board of Education with an opportunity as a nation to reaffirm the strength of our commitment to equality of opportunity," he said. "Twenty years after the passage of Title VI, we have an opportunity to reaffirm what we meant when we said as a nation that the benefits of federal money carry the obligation not to discriminate.''

No Charge of Discrimination

Representative Erlenborn said that Grove City College was never accused of discrimination and that the college's refusal to fill out forms did not prove discrimination. "Discrimination was not the question in Grove City," he charged.

But the college refused to take the steps necessary to show that it did not discriminate, responded Mr. Bayh. "It never got far enough that they were charged with discrimination," he said.

Representative William D. Ford, Democrat of Michigan, added that the college was covered by Title IX because it received more than $1 million in Pell Grants and was, indeed, "entangled with the federal government. ... They've been doing everything but getting married. They've been having all the fun."

Representative Ford called on President Reagan to "close the gender gap" by "having a big signing ceremony" before the 1984 Presidential election.

Mary F. Berry, one of two Democratic holdovers on the new U.S. Commission on Civil Rights, also urged passage of the bill, arguing that federal anti-discrimination enforcement activities have substantially diminished since the Supreme Court's ruling. The commission's chairman, Clarence M. Pendleton Jr., was also scheduled to testify but did not appear.

The bill is scheduled to be considered by the full Judiciary Committee on May 23.

The Senate Education, Arts, and Humanities Subcommittee plans to begin hearings on its version of the bill this Thursday. Secretary of Education Terrel H. Bell will outline the Administration's official position on the measure at that time, Education Department officials said last week.

Press reports earlier this month indicated that a number of high-ranking Administration officials disagreed on whether to support or oppose the bill. (See Education Week, May 16, 1984.)

The White House responded to the reports by stating that the issue was still being studied and that no final decisions had been made on it.

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