Title IX Covers Employment, High Court Rules

By Eileen White — May 26, 1982 7 min read
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Conversely, the attorney for the Trumbull school board, Paul Knag, said he was “pleased that the court ruled that the regulations have to be program-specific. ...Now a teacher has to prove that he or she is part of a federal program.”

In a decision that clarified one of the most disputed provisions of a 10-year-old federal law barring sex discrimination in education programs, the Supreme Court ruled last week that Title IX of the Education Amendments of 1972 applies to school employees as well as students.

The 6-to-3 decision in North Haven Board of Education v. Bell affirmed the right of the Education Department to cut off federal funds to school districts that are found guilty by federal investigators of discriminating against female employees.

The full text of the Court’sdecision begins on page 14.

The department’s authority over employment issues was challenged by two Connecticut school boards that were threatened with a loss of federal funds, based on sex-discrimination complaints brought by a teacher in the North Haven schools and a guidance counselor in the Trumbull schools. In its ruling, the Court upheld a decision by the United States Court of Appeals for the Second Circuit in favor of the employment-discrimination provisions.

Four other federal appeals courts, as well as several federal district courts, have ruled that Title IX does not pertain to discrimination against employees.

Although the Court upheld the Education Department’s right to issue regulations relating to sex discrimination against female employees, the ruling disputes the Second Circuit’s opinion that the federal government can broadly regulate all aspects of a school program through the Title IX law. The Court held that “an agency’s authority under Title IX both to promulgate regulations and to terminate funds is subject to the program-specific limitation” of the law.

Discriminatory Practices

“Congress failed to adopt proposals that would have prohibited all discriminatory practices of an institution that receives federal funds,” the Court held.

The ruling, however, left open the issue of what constitutes a federally funded “program or activity” in school districts, and it returned the case to the U.S. District Court in Connecticut to decide that and other specific issues in the cases.

The Title IX law says, in part, “No person in the United States shall, on the basis of sex, be excluded from participation in, be denied the benefits of, or be subjected to discrimination under any education program or activity receiving federal financial assistance.” The majority opinion, written by Associate Justice Harry A. Blackmun, upheld federal regulations issued in 1975 that interpreted that statute to include the protection of employees.

Because the statute “neither expressly nor impliedly excludes employees from its reach, we should interpret the provision as covering and protecting these ‘persons’ unless other considerations counsel to the contrary. After all, Congress easily could have substituted ‘student’ or ‘beneficiary’ for the word ‘person’ if it had wished to restrict the scope,” wrote Justice Blackmun.

In reaching that conclusion, the Justices relied heavily on remarks made by former Senator Birch Bayh, Democrat of Indiana, as he introduced Title IX as a floor amendment during Senate debate on a package bill containing numerous education amendments.

“‘We are dealing with discrimination in admission to an institution, discrimination of available services or studies within an institution once students are admitted, and discrimination in employment within an institution, as a member of a faculty or whatever,”’ the Justice quoted Mr. Bayh as saying.

Justice Blackmun wrote that it was necessary to rely on the former Senator’s remarks because the legislative history of Title IX was “sparse,” consisting mainly of discussion among Senators during the floor debate in 1972 and testimony collected during hearings in the House of Representatives the previous year on other proposals forbidding sex discrimination in education.

The Court was also unable to base its decision, as is customary, on longstanding policies of the executive branch. Although Presidential administrations since 1975 have interpreted Title IX to include coverage of school employees--and the Justice Department under President Carter filed a brief in support of that position in the Second Circuit--debate over Title IX has divided officials of the Reagan Administration.

Secretary of Education Terrel H. Bell asked the Justice Department to withdraw the Title IX employment regulations last August, but Solicitor General Rex E. Lee refused. Mr. Lee argued in favor of the regulations before the Court last December.

The policy dispute “undercut[s] the argument that the regulations are entitled to deference as the interpretation of the agency charged with Title IX’s enforcement,” in the opinion of the Court.

In a dissenting opinion, Justice Lewis F. Powell Jr. wrote that the majority opinion “tortures the language chosen by Congress. ... Congress made no reference whatever to employers or employees in Title IX, in sharp contrast to quite explicit language in other statutes regulating employment practices.” He was joined by Chief Justice Warren E. Burger and Associate Justice William H. Rehnquist.

The ruling is considered a victory for women’s organizations and civil-rights groups, 28 of which had joined together in filing a friend-of-the-court brief supporting the Title IX employment regulations.

“We think the Title IX protection for employees is very important,” said Marcia D. Greenberger, an attorney for the National Women’s Law Center here.

Ms. Greenberger and other attorneys interviewed said that although employees are protected by other federal laws, such as Title VII of the Civil Rights Act, the threat of withdrawing federal funds under Title IX is an effective method of persuading schools to abandon unfair employment practices.

Margaret A. Kohn, also an attorney with the center, said she assumed that the ruling would encourage ed’s office for civil rights to resolve the 214 employment-discrimination complaints filed under Title IX, which she said the office had “put on hold” pending the Court’s decision.

Unable to Verify Complaints

A spokesman for the civil-rights office, L. Jane Glickman, confirmed that the complaints had been held up in anticipation of the ruling, but she said she was unable to verify the number of pending complaints because the civil-rights office’s records were incomplete.

Ms. Kohn said her figures were based on data provided to the center by the office for civil rights in February, as is required by a federal court order stemming from complaints about sluggish enforcement of civil-rights laws brought against the federal government. Since the 1977 Adams/weal court order was handed down, the civil-rights office has provided information about all complaints filed under several civil-rights laws, including Title IX, to a group of civil-rights attorneys.

Regarding the definition of an “education program or activity receiving federal financial assistance,” Ms. Greenberger said she believed the issue would be decided in the federal courts. Two such Title IX employment-discrimination cases are now pending in the United States Courts of Appeals for the Third and Fifth Circuits, she said.

Federal appeals courts are also being asked to decide what types of federal aid can be considered under the heading “federal financial assistance.” In a case pending in the Third Circuit, Grove City College, a small, private institution in Pennsylvania, alleged that student financial aid should be excluded from the definition of federal assistance.

Students attending the college, which receives no “direct” federal aid, were threatened with the loss of federal loans and grants because the college refused to sign an agreement that stated it would comply with Title IX. The Justice Department supported the college in part, in a brief that contended that only Guaranteed Student Loans can be exempted from the definition of federal assistance under Title IX.

If the lower federal courts produce conflicting rulings, the “program-specific” issue may have to be resolved by the Supreme Court, according to Beverly Hodgson, the lawyer for the guidance counselor who was fired by the Trumbull school board.

Ms. Hodgson said that when the case returns to federal district court, she is likely to argue that although the salary of the guidance counselor may not have been paid directly from federal funds, the counselor provided services to students who participated in federally supported educational programs. “We have a very solid sex-discrimination case, and we’re not going to let the school board’s ability to pursue jurisdictional objections stand in the way of a remedy,” Ms. Hodgson said.

Conversely, the attorney for the Trumbull school board, Paul Knag, said he was “pleased that the court ruled that the regulations have to be program-specific. ... Now a teacher has to prove that he or she is part of a federal program.”

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A version of this article appeared in the May 26, 1982 edition of Education Week as Title IX Covers Employment, High Court Rules


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