Educators Begin Assessing Grove City Ruling

By Tom Mirga — March 07, 1984 10 min read

Washington--Educators and civil-rights officials generally agreed last week that the impact of the U.S. Supreme Court’s decision limiting the scope of the federal law barring sex discrimination in federally aided education programs will vary from school to school across the country.

According to the officials, the presence or absence of state-level sex-equity laws, coupled with the type of aid received by the schools, will largely determine the effect of the Court’s ruling.

See page 13 for the textof the Court’s decision.

But during a rare press conference late last week, William Bradford Reynolds, the assistant attorney general for civil rights, said that “as a practical matter, the decision will have little or no effect at all.”

In addition, Mr. Reynolds noted that “philosophically and personally” he would have no objections to legislation expanding the scope of law.

In its 6-to-3 decision, the Court held that a private college in Pennsylvania that eschews federal assistance cannot be forced to comply with Title IX of the Education Amendments of 1972 in all of its programs because some of its students receive federal grants.

"[W]e have found no persuasive evidence suggesting that Congress intended that the [U.S. Education] Department’s regulatory authority follows federally aided students from classroom to classroom, building to building, or activity to activity,” wrote Associate Justice Bryon R. White for the majority.

The ruling represented a major victory for the Reagan Administration, which successfully argued in Grove City College v. Bell (Case No. 82-792) that the school’s financial-aid department alone must comply with the law’s nondiscrimination provisions.

In arguing the case before the Court, the Administration repudiated the position it took in the lower courts that institutionwide Title IX coverage is triggered when a school or college receives any amount and any type of federal aid. That position had also been taken by three previous Administrations.

A number of women’s-rights advocates condemned the Court’s ruling, contending that it “cuts the guts” out of the 12-year-old statute and will encourage schools and colleges to resume discrimination against women and girls in athletics and other traditionally male-dominated fields.

They also contended that antidiscrimination statutes to protect the handicapped and minorities are also threatened because they contain language identical to that questioned in the Grove City case.

Reynolds Defends Decision

But during his press conference, Assistant Attorney General Reynolds, the chief architect of the Administration’s case, said it “is totally inaccurate to characterize the decision as a retreat on women’s rights.”

“This is a very positive decision,” Mr. Reynolds said. “We’re at a point where most colleges and universities have come a long way toward solving such problems.”

Mr. Reynolds added that laws protecting the rights of the handicapped and minorities will not be threatened by the decision because they are already being enforced in a manner consistent with the Court’s decision in Grove City.

According to Mr. Reynolds, every federal appeals court except the one that heard the Grove City case has ruled that Title IX and the other statutes are “program-specific” in nature “and in this case the Supreme Court told them to get back in line.”

Civil-rights officials have pointed out, however, that in many of those cases the courts held that for purposes of civil-rights enforcement, schools and colleges as a whole were to be considered the “programs or activities” to be regulated by the laws--a concept rejected by the Justices in the Grove City case.

In addition, Mr. Reynolds said that the nature of the federal aid received by a school will determine “the nature of the applicability of the law.”

“With impact aid, for example, I could see where institutionwide applicability [of the law to a school] would be called for,” he said.

“But it’s difficult to discuss matters like this in the abstract,” Mr. Reynolds continued.

Federal aid in the form of block grants under Chapter 2 of the Education Consolidation and Improve-ment Act might or might not trigger institutionwide coverage “depending on the type of programs subsidized,” he said.

Representative Claudine C. Schneider, Republican of Rhode Island and a strong supporter of Title IX, announced last week that she would introduce legislation to nullify the Court’s ruling.

Representative Schneider was the primary sponsor of a nonbinding resolution passed by the House last November expressing the sense of the Congress that the statute should apply to entire institutions. She also was instrumental in the preparation of a Congressional “friend-of-the-court” brief filed with the Court expressing that opinion.

‘Program or Activity’

At issue in the Grove City lawsuit was the meaning of a section of Title IX stating that sex discrimination is prohibited “in any education program or activity receiving federal financial assistance.”

Identical language appears in Title VI of the Civil Rights Act of 1964, which prohibits recipients of federal aid from practicing racial discrimination, and Section 504 of the Rehabilitation Act of 1973, which prohibits discrimination against the handicapped.

The Grove City dispute arose in 1978 when administrators at the college refused to sign a federal form assuring that they operated in compliance with Title IX. The U.S. Education Department requires all recipients of federal aid to sign the form.

The college’s administrators contended that they had never accepted federal aid directly and, thus, that the institution was not a “program or activity” subject to regulation. Furthermore, they said that the federal aid received by some of their students did not constitute aid to the college.

The department responded by cutting off aid to the students, prompting the college to sue the department.

In August 1982, the U.S. Court of Appeals for the Third Circuit held that the funding termination was justified because “where the federal government furnishes indirect or non-earmarked aid to an institution, it is apparent ... that the institution itself must be the ‘program”’ that must comply with Title IX. (See Education Week, Sept. 1, 1982.)

“Were it otherwise, and if it had to be demonstrated that each individual component of an integrated educational institution had in fact received the particular monies for a particular purpose, no termination sanction could ever effectively be imposed,” the three-judge panel wrote.

Theory Rejected

But under that theory, Associate Justice White wrote for the Court’s majority, “an entire school would be subject to Title IX merely because one of its students received a small [Pell Grant, otherwise known as a beog] or one of its departments received an earmarked federal grant.”

“This result cannot be squared with Congress’ intent,” he wrote. “Although the legislative history contains isolated suggestions that entire institutions are subject to the nondiscrimination provision whenever one of their programs receives federal assistance, we cannot accept the court of appeals’ conclusion that in the circumstances present here Grove City itself is a ‘program or activity’ that may be regulated in its entirety.”

“In purpose and effect, beog’s represent federal financial assistance to the college’s own financial-aid program, and it is that program that may properly be regulated under Title IX,” Associate Justice White concluded.

‘Absurdity’ of Decision

In their dissenting opinion, Associate Justices Thurgood Marshall and William J. Brennan Jr. said, “The absurdity of the Court’s decision is ... demonstrated by examining its practical effect.”

“According to the Court, the ‘financial-aid program’ at Grove City College may not discriminate on the basis of sex because it is covered by Title IX, but the college is not prohibited from discriminating in its admissions, its athletic programs, or even its various academic departments,” they wrote. “The Court thus sanctions practices that Congress clearly could not have intended: for example, after today’s decision, Grove City College would be free to segregate male and female students in classes run by its mathematics department. This would be so even though the affected students are attending the college with the financial assistance provided by federal funds.

“If anything about Title IX were ever certain, it is that discriminatory practices like the one just described were meant to be prohibited by the statute,” they concluded.

In a separate dissenting opinion, Associate Justice John Paul Stevens criticized the majority’s definition of a federally supported program or activity “first [as] an advisory opinion unnecessary to today’s decision, and second, [as] advice ... predicated on speculation rather than evidence.”

"[T]he record in the case is far from adequate to decide the [program-or-activity] question,” Justice Stevens wrote. “The record does not tell us how important the beog program is to Grove City, in either absolute or relative terms; nor does it tell us anything about how the benefits of the program are allocated within the institution. ... Until we know something about the character of the particular program, it is inappropriate to give advice about an issue that is not before us.’'

Government Criticized

In a separate opinion concurring with Justice White’s conclusions, Chief Justice Warren E. Burger and Associate Justices Lewis F. Powell Jr. and Sandra Day O’Connor went on the record to express "[our views] that the case is an unedifying example of overzealousness on the part of the federal government.”

Noting that record in the case indicated that the college “has never discriminated against anyone,” the Justices wrote: “One would have thought that the department, confronted as it is with cases of national importance that involve actual discrimination, would have respected the independence and admirable record of this college. But common sense and good judgment failed to prevail.”

"[We] cannot believe the department will rejoice in its ‘victory,”’ they concluded.

Several officials familiar with the application of civil-rights laws at the state level characterized the Title IX decision as “as a serious setback.”

In Florida, which does not have a state-level sex-equity statute, the implications of the decision are “scary,” said Nancy Benda, director of equal-educational-opportunity programs for the state department of education.

“The decision leaves a lot of room for retrenchment,” Ms. Benda said. “The media are saying that it’s an open game now, and I fear that’s how some people will perceive the situation.”

Ms. Benda said she hopes the decision will spur state legislators to move quickly on a sex-equity-in-education measure now pending in both the state House and Senate. A similar bill won the approval of the state House in the last legislative session but did not come up for a vote in the upper chamber.

“I hope the reaction will be, ‘Let’s gear up and do something to protect women and girls at the state level,”’ she said. “But historically, our track record in Florida in this area has not been too good.”

But the impact of the decision might not be as severe in the 31 states that have enacted their own versions of Title IX or have executive orders on the books having largely the same effect, observers added. (See Education Week, Jan. 19, 1983.)

“It certainly won’t have a significant impact in Michigan because we have a very strong state law,” said Jean King, an Ann Arbor lawyer who has tried several sex-equity cases in the state. “Once I thought that Title IX was the be-all and the end-all. But now, I’d much rather rely on the state law.”

“The impact in Nebraska will be different because we have a state law that clearly covers all public education and all institutions,” added Peggy Weeks, a sex-equity consultant to the Nebraska Department of Education. “But I’m sure the decision will create a great deal of confusion, particularly with respect to athletics and physical education.”

Handicapped Employees

In a related case also decided last week, the Court ruled unanimously that Section 504 of the Rehabilitation Act of 1973 protects handicapped employees of federally funded programs against discrimination, but again noted that the application of the law should be limited by its ''program-specific nature.” The case was Consolidated Rail Corporation v. Darrone (No. 83-862).

“In this case, the Justice Department argued that because Conrail had received general assistance from the federal government, it was the ‘program or activity’ covered by Section 504,” explained Barbara Nelson, a staff lawyer for the American Council of the Blind.

“The decision is a tremendous boost,” added Sy Dubow, legal director for the National Center for Law and the Deaf. “It ensures that Section 504 will be an effective law to combat employment discrimination. It’s important for people to know that here is a clear victory for handicapped. In employment, one of the most crucial areas, the Court has clearly recognized the intent of Congress to provide expansive remedies for the denial of equal opportunity.”

A version of this article appeared in the March 07, 1984 edition of Education Week as Educators Begin Assessing Grove City Ruling