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Rights Coverage Is Not Institutionwide Under Chapter 2, Federal Panel Rules

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Washington--An internal legal panel in the Education Department has made a little-publicized decision that could narrow to one the number of precollegiate federal programs that trigger civil-rights enforcement on an institutionwide basis.

As a result of the panel's ruling--that a South Carolina school district receiving Chapter 2 funds need not abandon single-sex gym classes--the Education Department is reviewing a policy its office for civil rights promulgated following the U.S. Supreme Court's 1984 decision in Grove City College v. Bell, which narrowed the reach of Title IX and other similarly worded rights laws to only those "programs or activities" of an educational institution that directly receive federal funding.

The policy, distributed in a July 1984 memorandum to the regional ocr offices by Harry M. Singleton, assistant secretary for civil rights, said that in light of the Court's recent decision the Education Department would view only two federal programs--Chapter 2 block grants and impact aid--as triggering institutionwide civil-rights coverage.

But the quasi-judicial review panel--a seven-member board of nongovernment lawyers appointed by the secretary of education and charged with ruling on exceptions filed by school districts or ocr to decisions made by administrative law judges--said last month that ocr could not require the Pickens County, S.C., schools to drop their single-sex gym policy because the district's Chapter 2 funds are not specifically used for physical-education programs.

Now, if the ocr review does not produce a contrary opinion, the panel's ruling will effectively become departmental policy. The department had 20 days following the panel's ruling in which to formally appeal it to Secretary of Education William J. Bennett, but did not do so. A spokesman for the Secretary said he was also not involved in the current informal policy review within ocr

Civil-rights leaders last week said they feared that a shift in department policy would substantially weaken civil-rights enforcement in elementary and secondary schools.

"I think there is going to be a drastic cutback in enforcement and the department will use this decision as their justification," said Antonio J. Califa, until recently a senior official in the department's office for civil rights.

Pickens County Case

Since the 1979-80 school year, the Pickens County district has offered its students the choice of participat-ing in single-sex classes rather than coeducational classes, to which some parents had objected.

ocr charged following a May 1980 compliance review that the school district violated Title IX, which bars discrimination against women students, by offering the sex-segregated physical-education classes. Following that determination, officials attempted to convince the district to abandon its practice for several years before instituting enforcement proceedings, according to a spokesman for ocr

In the first ruling on the department's charges, in January 1985, an administrative-law judge found that there was "no question but that sex discrimination, such as Title IX and its implementing regulations prohibit, does exist and is the policy in schools of the Pickens County District."

But the judge also ruled that, as a consequence of the Grove City decision, the department did not have jurisdiction over the district's physical-education program because it received no federal funding.

In appealing that ruling to the internal reviewing authority, ocr argued that the statutory purpose of Chapter 2 is broadly defined and the funds are not program-specific, and therefore the entire elementary- and secondary-education program in the Pickens County district should come under the department's jurisdiction.

The reviewing authority rejected the department's contention that Chapter 2 funds are not earmarked for specific programs, because, it said, districts list specific programs in their applications for Chapter 2 assistance and must use the federal funds they receive for those programs.

Relying on the Supreme Court's guidance in Grove City, the reviewing authority said that the department's enforcement powers were limited to the specific programs for which the school had requested Chapter 2 funding.

"There is no statute that says that ocr is subject to our authority," said Richard Slippen, executive director of the reviewing authority. "But as a practical matter they must abide by our findings because we will ultimately be deciding the appeals to any cases they file."

He also noted that the reviewing authority's decision serves as a binding legal precedent for the administrative-law judges that first rule on civil-rights cases.

At the very least, the department would no longer be able to exercise jurisdiction over a district's extracurricular activities, sports teams, and physical-education programs, according to Cynthia G. Brown, former assistant secretary for civil rights in the department and now co-director of the Equality Project, a civil-rights research group.

"If they try to continue to assert institutionwide coverage, it is very likely that the first district they file a complaint against will challenge them and force the issue to be litigated in federal court," she said.

"There is no question in my mind that this decision is very much in line with Singleton's and Bennett's philosophy to narrow enforcement of Title IX regulations," said Mr. Califa, who now works with the American Civil Liberties Union.

Most of the nation's school districts receive some Chapter 2 funds, and have therefore been required to comply with civil-rights regulations under the department's Grove City interpretation, said Phyllis McClure, director of the Washington branch of the naacp Legal Defense and Educational Fund Inc.

If the ruling stands, she said, only the 2,900 districts that receive impact-aid grants would be required to comply with civil-rights laws institutionwide. "In the other 13,000 districts, the only civil-rights protection would be in their federal programs," and that would leave the department's civil-rights enforcement policy looking like "Swiss cheese," she added.

Policy Review

According to Patricia Healy, a spokesman for ocr, Mr. Singleton thought the reviewing authority's decision was "well reasoned" and thus did not formally appeal it. No date has been set for completion of ocr's own review, she said.

The current review will not affect the department's policy that impact-aid grants trigger institutionwide coverage, she said.

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