Grove City Bill Nears First Senate Hurdle

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WASHINGTON--Legislation that would undo a U.S. Supreme Court decision limiting the scope of federal civil-rights enforcement appears headed for approval this week by the Senate Labor and Human Resources Committee--but not without fierce opposition.

Republicans on the panel plan to offer more than 20 limiting amendments, including an anti-abortion provision that doomed similar legislation in the last Congress. Six hours have been reserved for what is expected to be an acrimonious debate.

This week's test, the measure's first hurdle, may well be its easiest, Capitol Hill observers say. Prospects for passage remain uncertain in the full Senate, where Senator Orrin Hatch, Republican of Utah, has threatened a filibuster, and in the House, where the strength of anti-abortion forces remains formidable.

S 557, "the civil-rights restoration act,'' would nullify the Court's 1984 ruling in Grove City College v. Bell, which limited federal prohibitions against sex discrimination in Title IX of the Education Amendments of 1972. That law, according to the 6-to-3 decision, was intended to apply only to the specific "program or activity'' receiving federal funds, rather than to an entire institution.

Because of language identical to that of Title IX, three other statutes--Title VI of the Civil Rights Act of 1964, Section 504 of the Rehabilitation Act of 1973, and the Age Discrimination Act of 1975--were equally affected by the Grove City decision.

As a result, over the past three years, the Education Department's office for civil rights has had to close or limit 834 enforcement actions: 674 complaints and 160 compliance reviews, or about 11 percent of the 7,500 cases initiated during that period.

The Grove City ruling led, for example, to the dismissal of a discrimination finding by the O.C.R. against schools in Mecklenburg County, Va., for assigning most black students to the "lowest ability'' classes for all subjects. A judge ruled that the violation had occurred in a program that received no federal funds.

While both sides in the Congressional debate say they favor a move to broaden the boundaries of federal jurisdiction in the wake of Grove City, they have found little common ground on how to do so.

The sponsors of S 557--Senators Edward M. Kennedy, Democrat of Massachusetts, and Lowell P. Weicker Jr., Republican of Connecticut--say the measure would simply restore pre-Grove City policy on civil rights.

That is, an entire school system, governmental agency, university system, or corporation that received federal funds would be subject to civil-rights laws--not just the specific program receiving federal assistance.

"The basic principle is clear,'' Senator Kennedy said at a recent hearing. "The federal government should not permit tax dollars to be used in any way that subsidizes discrimination.''

But conservative opponents, including the Reagan Administration, contend that S 557 would go far beyond the restoration principle, opening a Pandora's box of intrusive federal activity, with unpredictable consequences.

Paul M. Weyrich, chairman of Coalitions for America, has warned that "the bill would force schools to assign AIDS carriers as teachers,'' citing a decision by the Supreme Court earlier this year extending civil-rights protections to those with communicable diseases.

In a recent letter to Senator Kennedy, Secretary of Education William J. Bennett criticized the measure's "unwarranted expansion of jurisdiction beyond what existed under department policies prior to Grove City [and expansion of] the federal role ... into areas beyond the department's institutional and enforcement expertise.''

Mr. Bennett expressed the Administration's support for an alternative measure, HR 1881, which would restore "institution-wide,'' rather than "program specific,'' coverage, but limit jurisdiction to educational activities. The O.C.R. would not have had to close any of the 834 cases under such a law, he said.

While civil-rights advocates acknowledge that education is the field where anti-discrimination activity has been most hindered by Grove City, on principle they oppose the exemption of other areas.

"How can you say that taxpayer money going to educational institutions should be free of the taint of discrimination, but the same money should go to hospitals or other institutions without strings attached?'' asked Antonio J. Califa, a legislative attorney for the American Civil Liberties Union.

Abortion Impasse

But the most controversial part of HR 1881--sponsored by Representatives James Sensenbrenner, Republican of Wisconsin, and Charles W. Stenholm, Democrat of Texas--is an "abortion neutral'' provision. In effect, it would invalidate Title IX regulations adopted in 1975 barring discrimination related to termination of pregnancy.

Those rules require, for example, that federal-aid recipients provide student health-insurance plans that treat abortions "under the same policies as any other temporary disability.'' Title IX provides an exemption for church-controlled institutions if any of its regulations would conflict with their "religious tenets.''

When the U.S. Catholic Conference, a longtime civil-rights advocate, raised the abortion issue during consideration of Grove City legislation in 1985, the coalition supporting the measure was shattered. As a result, a bill that had passed the House on a 375-to-34 vote the previous year was bottled up in committee for the entire 99th Congress.

"It's unfortunate,'' said Ralph G. Neas, executive director of the Leadership Conference on Civil Rights, "that the U.S. Catholic Conference is using this legislation as a vehicle to advance its substantive agenda on abortion.''

S 557 would neither expand nor restrict current law on abortion, he said. But he charged that opponents, who "never supported civil-rights laws when they were passed in the 1960's,'' are now exploiting the "manufactured issue'' of abortion in an attempt to derail the legislation.

Mr. Neas also rejected an argument by the National Right to Life Committee that the measure would force all teaching hospitals to provide abortions if a single medical student attended an institution covered by Title IX regulations. As drafted, S 557 would restrict civil-rights enforcement to the "educational component'' of a noneducational institution, he said.

The Rev. J. Bryan Hehir, a spokesman for the U.S. Catholic Conference, said his organization strongly supports legislation to overturn Grove City. While conceding that S 557 would not force Catholic institutions to provide or sanction abortions, he said, "we are raising this because we oppose abortion on a societal basis. We think there's a link between civil rights and human rights--the protection of the rights of the fetus.''

"The [Title IX] regulations were in effect before, but it's fair to argue that once you reaffirm them in this bill, they take on a whole different status,'' he said.

Changing abortion-rights regulations would be less effective than legislation, he added, because "they could simply be put back in by another Administration.''

Other Amendments

Among the 22 to 28 amendments expected from Republicans on the Senate committee, two besides the "abortion neutral'' proposal would have a major effect on religious institutions.

One would expand Title IX's "religious tenets'' exemption to educational institutions that are "closely identified'' with the beliefs of a religious organization.

As drafted, S 557 "doesn't take account of changes'' in the way formerly church-run schools are administered and financed, argued Kathleen Curry, executive director of the National Association of Independent Colleges. For such quasi-independent institutions, she argued, being forced to provide abortions would be an infringement of religious liberty.

Curran Tiffany, a spokesman for the National Association of Evangelicals, said that religious but non-affiliated schools need protection from "feminist interpretations of discrimination on the basis of sex'' that conflict with their beliefs, including "a whole raft of restrictions'' on institutions' ability to regulate the sexual conduct of students, he said.

According to Gary Curran, a spokesman for the O.C.R., about 150 "religious tenets'' exemptions have been granted to educational institutions that have applied since 1975. While some applications have been withdrawn, none has ever been denied, he said.

Civil-rights advocates have opposed expanding this exemption, which they see as a broad loophole that would be, in effect, "a license to discriminate.''

Another likely amendment that appears to be less controversial, however, is a proposal to treat autonomous units within a religious institution separately with regard to civil-rights enforcement.

A finding of discrimination against a parish school, for example, would not automatically imperil federal funding for an entire diocese.

Senator Daniel Patrick Moynihan, a New York Democrat who is not on the committee, has asked Senator Kennedy to develop a "legislative history'' to clarify Congressional intent on this point. Senator Hatch is expected to press an amendment.

Bill's Prospects

Civil-rights advocates have pursued a "clean bill'' strategy--eschewing amendments of any kind as inimical to the principle of restoring civil rights that existed before Grove City.

With the Senate seen as more likely to resist an anti-abortion amendment, lobbyists have pursued a vote there first, in the hope that a victory there would put pressure on the House to follow suit.

"Chances for passage are excellent in both houses,'' Mr. Neas said. Privately, however, several proponents of S 557 were less optimistic, citing the consistent House majorities against abortion for the past five years.

Within the civil-rights community, sources said, one compromise that has been discussed is to leave Title IX out of Grove City legislation this year--an alternative that is highly objectionable to women's organizations.

Even in the Senate, where S 557 has 56 co-sponsors, some advocates say there is no guarantee that 60 votes can be garnered to break a filibuster. Senator Hatch successfully used that strategy in 1984, before the abortion issue arose, to block a civil-rights restoration bill.

Vol. 06, Issue 34

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