In 1980, Ronald Reagan ran on a platform that tried to assure American women that although the Republican party no longer supported a constitutional amendment guaranteeing them equal rights, the G.O.P.--and he--were still committed to equality for women. Mr. Reagan maintained (and many Americans believed) that numerous statutes enacted to protect women’s rights in such areas as education, employment, and credit had made the Equal Rights Amendment superfluous. A few weeks before his election, Mr. Reagan told the National Organization for Women that he would work to assure implementation of existing equal-rights laws and to pass new ones as needed.
President Reagan’s first 15 months in office have proved the deception of those promises, especially in education.
Early in the Administration, the President’s Secretary of Education, Terrel H. Bell, wrote to Senator Paul Laxalt, Republican of Nevada, saying that the regulations of Title IX of the Education Amendments of 1972, which prohibits sex discrimination in education, needed modification. “I am still re-viewing these and other regulations and plan to take action to cut back as much as I can under the law and under restraints and demands imposed by the courts,” wrote Secretary Bell. “It seems that we have some laws that we should not have, and my obligation to enforce them is against my own philosophy.”
In March 1981, Mr. Bell began a series of attempts to persuade the U.S. Department of Justice to seek delays in Title IX court actions while the Education Department (ed) “re-evaluated” the scope of coverage of the Title IX regulations. Except for a few specific exemptions, the regulations interpret Title IX to apply to, and prevent discrimination against, any student or employee in any educational program or activity in an institution benefiting from federal financial assistance, regardless of whether the program or activity in which the discrimination occurs gets federal dollars directly. ed wanted to exempt institutions whose federal assistance was limited to student-aid programs, including Guaranteed Student Loans and Pell Grants, even though to do so would leave students in more than 3,600 schools without civil-rights protection.
Justice Department lawyers were initially reluctant to go along with these changes. Lynn Walker, then an acting deputy assistant attorney general, wrote in a memo to Deputy Assistant Attorney General Robert D’Agostino that “the Department of Education has no defensible reason for proposing these changes.”
“It is clear that their whole object is to allow colleges, which discriminate or want to discriminate, to do so,” said Ms. Walker.
Shortly after that memorandum was written last fall the Justice Department’s civil-rights chief, William Bradford Reynolds, notified the Education Department’s general counsel, Daniel Oliver, that there were no legal grounds for changing the Title IX regulation on federal financial assistance. In a memorandum that soon became public, Mr. Oliver urged Secretary Bell to proceed with the change anyway on political grounds.
Apparently the Justice Department itself finally acceded to the argument that the decision should be based on political considerations. Last month, both the Justice Department and the Education Department indicated that institutions whose only federal assistance came from Guaranteed Student Loans would be exempted from civil-rights jurisdiction. Estimates of the number of schools thus freed from anti-discrimination laws ranged from 325 to at least 1,000.
Late last summer, the Justice Department rebuffed an attempt by Secretary Bell to revoke the Title IX regulations that protect employees. But in arguing this employment issue before the U.S. Supreme Court in the case of North Haven Board of Education v. Bell in December, the Justice Department’s Solicitor General Rex Lee unexpectedly revealed a new threat to Title IX. He told the Court that Title IX is a “program specific” statute that applies only to programs that are direct recipients of federal funds.
Observers initially thought the Solicitor General had blundered unintentionally into an issue he didn’t understand--even Secretary Bell had expressed reservations about requiring the government to trace the flow of federal funds into a classroom before it could enforce civil-rights laws in it. But in an appeals court brief filed last month in the case of Grove City College v. Bell, the Justice Department again stated that Title IX is “program-specific.”
If the Education and Justice Departments ultimately agree on this issue, as some women’s groups fear they may, Title IX will provide protection only to students in classrooms in which federal dollars are spent, and the law could become virtually unenforceable. Federal funds are often impossible to trace. In California last year, for example, federal auditors found that some of the state’s largest sub-recipients of Vocational Education Act (V.E.A.) funds could not even demonstrate whether they were being spent for vocational education. But the Secretary of Education’s special counsel, Thomas W. Anderson, may have provided a solution to that problem when he suggested in an April, 1981, memorandum to Mr. Bell that civil-rights statutes be enforced only in programs in which federal aid was identifiable.
Even with the regulations still intact, enforcement has been poor. A federal judge in March stopped just short of holding the Education Department in contempt for its failure to meet court-ordered timetables for resolving civil-rights complaints. Women’s groups that have begun analyzing the handling of Title IX complaints by the department’s office for civil rights say that the civil-rights office is finding institutions in compliance on the mere promise that they will review practices accused of being discriminatory.
Title IX is not the only law passed by Congress to overcome sex discrimination in education. Nor is it the only one under attack by the Reagan Administration.
In spite of Secretary Bell’s philosophy that technical assistance is one of the few legitimate roles of the federal government in education, the Education Department has sought to eliminate--through block grants and “zero-budgeting"--two programs designed to provide that assistance in eliminating sex discrimination--the Women’s Educational Equity Act and Title IV of the 1964 Civil Rights Act.
The Department also has pursued a blatantly illegal change in the Vocational Education Act regulations that would void the statutory requirement that every state have at least one employee who works full time in identifying and eliminating sex discrimination in state and local vocational-education programs. Moreover, the Education Department’s proposal for reauthorization of the vocational-education law would eliminate entirely the provisions in the 1976 V.E.A. amendments whose aim is to overcome discrimination in the most sex-segregated of all educational programs.
So in spite of election-year promises, legislation protecting the rights of women in education is being slowly eroded. Senator Orrin Hatch (Republican of Utah), another opponent of the Equal Rights Amendment and chairman of the Senate Education and Labor Committee, last year became impatient with the Education Department’s progress in gutting Title IX and introduced in Congress a set of amendments that would accomplish by legislation what his fellow Utahan, Secretary Bell, was trying to do through regulations. To his surprise, Senator Hatch found that women in Utah were far more concerned about saving Title IX than school officials were with eliminating it. Engaged in a hotly contested re-election campaign, he recently told a group of home-state women that he was reconsidering the amendment.
When Senator Hatch first introduced his amendment, a member of the National Coalition for Women and Girls in Education asked one of his staff associates why it had been applied to Title IX but not to parallel requirements in Title VI of the 1964 Civil Rights Act. In answer, she was told that minorities’ rights under Title VI are guaranteed by the Constitution, but that women’s rights under Title IX are not.
The lesson is obvious.
