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Civil-Rights Official Urges Broadening of Title IX Protection

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Washington--The chairman of the U.S. Commission on Civil Rights last week urged the Congress to pass with clarifications legislation designed to restore the broad scope of Title IX of the Education Amendments of 1972.

But the presidents of Grove City College and two other independent colleges, calling the proposed "civil-rights act of 1984" a dangerous step toward erasing the traditional distinctions between private and public education, urged the Congress to reject such a proposal.

Senator Orrin G. Hatch, Republican of Utah and chairman of the Senate Judiciary Subcommittee on the Constitution, which held hearings on the proposal last week, prefaced the witnesses' testimony by saying: "None of us, including the Administration, is enthusiastic about criticizing legislation with so estimable a title as 'the civil-rights act of 1984.'

"The issues before us, however, in the context of this legislation are not those relating to civil rights," he continued, "but rather those relating to traditional lines of distinction between the public and private sectors, and between the federal and state and local governments."

And noting that "Congress has an obligation to make clear ... what we mean," Senator Hatch called S 2568 "a lot more than ... a simple overrul[ing] of the Grove City [College v. Bell] case."

Narrowing Effects

Clarence M. Pendleton Jr., chairman of the civil-rights commission, expressed the commission's support for legislation overturning the narrowing effects of the Grove City opinion on Title IX and other civil-rights statutes.

According to Mr. Pendleton, "Such coverage is important because federal tax dollars should not support discrimination" and because "the Supreme Court's interpretation of 'program or activity' is likely to be applied to the 'program or activity' language in these other statutes as well."

In its February ruling, the Court adopted a position advocated by the Reagan Administration, that Grove City College was required to comply with Title IX only in the "program or activity" within the institution that received federal aid--in this case, the college's student-aid program--and not on an institutionwide basis. (See Education Week, March 7, 1984.)

S 2568, which is a direct and bipartisan response to the Court's narrow reading of the anti-discrimination statute, seeks to restore to Title IX, Title IV of the Civil Rights Act of 1964, Section 504 of the Rehabilitation Act of 1973, and the Age Discrimination Act of 1975 their pre-Grove City institutionwide scope by replacing the term "program or activity" with "recipient."

Clarify Ambiguities

Explaining that the civil-rights commission has not taken a specific stand on S 2568, Mr. Pendleton urged the committee members to spell out what mechanisms would be used to enforce whatever legislation is approved.

Linda Chavez, staff director of the commission, described a staff study in which the statutes as amended by S 2568 were applied to a number of circumstances to determine their effect.

That analysis suggested, Ms. Chavez said, that the language of the amended statutes could be very ambiguous in cases in which funding programs, types of recipients, and their services differ from those in the traditional education setting.

"Because these statutes encourage voluntary compliance, clarity in the scope of recipients' obligations is especially important," she said. "Not only recipients but participants in federally aided activities have an overriding interest in as clear a bill as you can produce."

Among the ambiguities of that bill that require clarification, she said, are the definition of the word "recipient" and the conditions under which funding would be terminated. In addition, she expressed concern that "the federal regulations enforcing these statutes apply an 'effects' test, rather than the 'intent' test generally used under the Constitution in determining whether discrimination is occurring."

Federal Entanglement

Charles MacKenzie, president of Grove City College, told the committee that discrimination was not at issue in the Grove City case before the Supreme Court. "So far as Grove City is concerned," he said, "this case has involved only its attempt to avoid entanglement with the federal government. Once government secures a foothold, limiting further intrusion is virtually impossible."

Mr. MacKenzie said he feared that if S2568 is approved in its pre-sent form, "any meaningful distinction between private and public education will be lost."

And he asked the Congress to "find some other way to eradicate discrimination without destroying the autonomy of private colleges and universities."

Bruce C. Hafen, president of Ricks College and of the American Association of Presidents of Independent Colleges and Universities, a group of 165 private colleges and universities from 40 states with total enrollment of 330,000 students, also testified against the proposed measure.

Noting that colleges like his and those in his organization have remained self-reliant because of "an intense desire to remain independent of governmental control ... [and] to pursue distinctive educational missions," Mr. Hafen decried the bill's "extreme intrusiveness" into the values and practices of such institutions.

"In general, Title IX, as broadened by S2568, would tend to establish an official orthodoxy about value questions relating to the roles of the sexes in society, matters of sexual morality, and attitudes about marriage and family life," he said. "Church-related colleges and universities desire independence not so they can discriminate, but so they can be discriminating--about many of life's ultimate questions."

Mr. Hafen called on the Congress to redraft the bill to take into consideration "the many serious questions it leaves unresolved." Among the amendments he proposed were a broadening of the religious exemption in Title IX and a revision of the definition of the term "recipient" to exclude colleges receiving no direct federal assistance and whose students receive no "campus-based" benefits.

'Bureaucratic Harrassment'

George Roche, president of Hillsdale College, which is involved in a lawsuit almost identical to the Grove City case, told the committee that "the sobering lessons of [the college's] nine-year ordeal of litigation and bureaucratic harrassment under a tortured interpretation of Title IX ... could be re-enacted thousands of times throughout our society if this bill becomes law."

Calling the bill an attempt to "kick down doors that are already open," Mr. Roche said it would "weaken in a very real way, the pluralism, diversity, and broad-based institutional stability of American life, the stability and adaptability that have been the source of our marvelous openness and youthfulness as a society over the past two centuries."

Such a denigration of distinctions between public and private sectors, he said, threatens the nation's political, economic, and social success.

'Autonomy and Independence'

Both Mr. MacKenzie and Mr. Roche said their institutions plan to limit their acceptance of students who receive federal assistance.

Mr. MacKenzie of Grove City College said he has begun announcing to incoming students that the college has reluctantly decided not to matriculate students who receive Pell Grants.

"We are convinced that this decision is essential if we are to maintain our autonomy and independence," he said.

And Mr. Roche of Hillsdale College told the Congress that the college will no longer accept student tuition if it has federal strings attached.

Both college presidents said they would attempt to make private-sector funds available to those students who would be deprived of federal aid.

Senator Hatch told the witnesses that he is considering introducing an amendment to S 2568 that would exempt from coverage institutions that receive only federal assistance for students.

All three college presidents said they could probably support such an amendment, which Mr. Roche called "a vast improvement over the bill as it stands."

'Weakening Is Serious'

A panel of civil-rights advocates that appeared shortly before the conclusion of the hearing presented the only unequivocally favorable testimony in support of the bill.

Marcia D. Greenberger, a lawyer with the National Women's Law Center, told the committee that the Supreme Court's narrow interpretation of the scope and coverage of Title IX "seriously impair[s] the law's effectiveness as a tool to end sex discrimination in education."

"Given the fact that Title IX is the only federal law which protects both students and employees in education," she noted, "its weakening is particularly serious."

Ms. Greenberger called Mr. Hafen's comments on the relation of Title IX to the roles of sexes and matters of sexual morality, marriage, and family a sign of "a fundamental lack of understanding about what Title IX requires" and urged the Congress to move quickly to pass S 2568.

'Bureaucratic Nightmare'

David Tatel, a former director of the office for civil rights in the Department of Health, Education, and Welfare, reiterating the comments he made last month in a hearing before the House Judiciary Subcommittee on Civil and Constitutional Rights and the House Education and Labor Committee, noted that the Court's interpretation of Title IX under Grove City would precipitate "a bureaucratic nightmare" in which institutions would be forced to hire accountants to trace funds to their programs and lawyers to argue the process.

Pointing out that "all legislation has ambiguities," Mr. Tatel expressed his support for S 2568. "Institutions that receive federal funds," he said, "ought not discriminate."

And William Taylor, director of the Center for National Policy Review, reacted to the testimony of earlier witnesses by pointing out that S 2568 does not change or complicate existing methods of implementation, does not permit the termination of funds that do not support discrimination, and does not broaden the existing definition of federal assistance.

"A lot of the arguments I have heard this morning are really arguments about the fundamental bases of Title IX, Title VI, 504, and the Age Discrimination Act," he said.

"States have a right to be somewhat free. That right does not encompass a right to discriminate against their citizens."

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