Justice Dept. Opposes Review of Title IX Case

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Washington--The Reagan Administration has asked the U.S. Supreme Court to let stand a federal appeals-court ruling that requires colleges whose students receive federal aid to certify that they do not discriminate on the basis of sex.

But in asking the Court last week not to hear the lawsuit, Grove City College v. Bell, the Administration also asked the Court not to resolve an issue that has perplexed many schools and colleges, women's rights advocates, and lower federal courts in recent months: whether entire educational institutions, or only their component parts that receive federal aid directly, are required to comply with Title IX of the Education Amendments of 1972.

Within the last year, a number of federal courts have rendered conflicting opinions on the so-called "program-specific" nature of Title IX. The problem has arisen because the law states, in part, that educational institutions must not discriminate on the basis of sex in any "program or activity" receiving federal financial assistance.

Some of those courts--including the U.S. Court of Appeals for the Third Circuit in the Grove City case--ruled that when a school or college receives non-earmarked federal aid, such as tuition grants paid to students, the institution as a whole is the "program" receiving federal aid and therefore must comply with the anti-sex-discrimination law.

Institutions Must Comply

But other courts--most recently the U.S. Court of Appeals for the Sixth Circuit in Hillsdale College v. Department of Health, Education, and Welfare--have ruled that institutions must comply with Title IX only in those programs that receive aid directly. In the Hillsdale case, that meant only in the college's student-aid program.

Elementary and secondary educators have been watching such litigation closely because Title IX covers all levels of education. Moreover, resolution of the Title IX "program-specific" issue could affect litigation regarding other civil-rights laws--such as Title VI of the Civil Rights Act of 1964--and the application of those laws to other non-earmarked federal aid received by schools--including funds from the new federal education block grants to states.

Last year, the Supreme Court touched on the issue of Title IX's program-specificity when it ruled in North Haven Board of Education v. Bell, a case involving sex discrimination in employment. Although the Court noted that Title IX is a program-specific statute, it specifically declined to explain just what it meant by that, on the grounds that the issue of program-specificity was not central to the resolution of that case.

Many observers expected the Administration to ask the Court to use the Grove City case to resolve the program-specificity issue.

But in the brief that it filed with the Court, the Justice Department said that Grove City is not "the proper case in which to resolve inconsis-tencies in statements by the courts of appeals concerning the meaning of the program-specific limitation found in Title IX."

The department explained that the narrow issue before the Court is only whether the college must sign an "assurance of compliance" form to ensure that its students continue to receive federal aid.

The college, it continued, "devotes nearly all of [its] attention to an issue that is not presented by this case--the meaning of the concept of 'program-specificity' under Title IX." Review of the issue, it added, is inappropriate "because [it has] no effect on the outcome of the case."

In a footnote in the brief, the federal lawyers arguing the case said the Education Department "does not take the position that execution of an assurance acknowledges coverage of an entire institution regardless of the nature of the federal financial assistance received by the institution."

"The department believes that assurances of compliance must be written and construed so as not to apply automatically to an institution as a whole, but only to those programs and activities of an institution that receive federal financial assistance," according to the brief.

Furthermore, the department's brief said that there "was serious doubt" that the Sixth Circuit's ruling in the Grove City case that all activities in an institution are covered by Title IX whenever any student receives aid "can be reconciled with this Court's statements in North Haven."

In spite of the Justice Department's plea, the Court may decide to hear the Grove City case after all, according to Theresa Cusick, a spokesman for the National Organization for Women's project on equal education rights.

"Most of the lawyers that I've talked to have said that because of the split in the circuit courts, it's much more likely that the [Supreme] Court will decide to hear the case," Ms. Cusick says, adding that many women's-rights advocates, "aren't particularly anxious to have the Court rule in the case," however.

"We aren't eager to have a ruling because we are afraid of what the Court might come down with," she said. "What we would rather see is the Education and Justice Departments take a more positive stance toward Title IX in the lower courts."

In a related development, the Equal Employment Opportunity Commission and the Justice Department last week published final regulations which go into effect March 28 and stipulate that all "joint complaints" alleging discrimination against an individual--those brought under a combination of either Title IX, Title VII of the Civil Rights Act of 1964, or the Equal Pay Act 1963--would be transferred automatically to the eeoc

The civil-rights branches of other federal departments would continue to investigate allegations of school system-wide discrimination against groups.

Vol. 02, Issue 19

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