Petition — United States Department of Health, Education, & Welfare v. Romeo Community Schools

oe SEP Az gg |

[Micha ORAM, JR., GLERK

Iu the Supreme Court of the United States

OCTOBER TERM, 1978

UNITED STATES DEPARTMENT OF HEALTH,

EDUCATION, AND WELFARE, ET AL., PETITIONERS

Vv.

ROMEO COMMUNITY SCHOOLS, ET AL.

PETITION FOR A WRIT OF CERTIORARI TO

THE UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT

WADE H. McCREE, JR.

Solicitor General

Department of Justice

Washington, D.C. 20530

In the Supreme Court of the United States

OCTOBER TERM, 1978

No.

UNITED STATES DEPARTMENT OF HEALTH,

EDUCATION, AND WELFARE, ET AL., PETITIONERS

Vv.

ROMEO COMMUNITY SCHOOLS, ET AL.

PETITION FOR A WRIT OF CERTIORARI TO

THE UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT

The Solicitor General, on behalf of the United

States Department of Health, Education, and Wel-

fare, et al., petitions for a writ of certiorari to re-

view the judgment of the United States Court of

Appeals for the Sixth Circuit in this case.

OPINIONS BELOW

The opinion of the court of appeals (App. A, infra,

la-10a) is reported at 600 F.2d 581. The opinion of

the district court (App. C, infra, 18a-47a) is reported

at 4388 F. Supp. 1021.

JURISDICTION

The judgment of the court of appeals was entered

on June 20, 1979 (App. B, infra, 1la-12a). The juris-

(1)

2

diction of this Court, is invoked under 28 U.S.C.

1254(1).

QUESTION PRESENTED

Whether Sections 901(a) and 902 of the Educa-

tion Amendments of 1972, 20 U.S.C. 1681(a) and

1682, authorized the Department of Health, Educa-

tion, and Welfare to issue regulations prohibiting sex

discrimination in the employment practices of school

districts and educational institutions receiving fed-

eral financial assistance.

STATUTE AND REGULATIONS INVOLVED

1. The pertinent portions of the statute involved

(Sections 901(a) and 902 of Title IX of the Educa-

tion Amendments of 1972, 20 U.S.C. 1681(a) and

1682), are printed at pages 2-6 of the petition in

Harris v. Islesboro School Committee, No. 79-200

(October Term 1978).

2. The pertinent regulations (45 C.F.R. 86.51(a)

(1) and 45 C.F.R. 86.57(c)) are printed at pages

6-7 of the petition in Jslesboro.

STATEMENT

This case arises from a suit brought by the re-

spondent Romeo Community Schools (“Romeo”) to

enjoin regulations of the Department of Health,

Education, and Welfare (HEW) prohibiting sex dis-

crimination in the employment practices of those

operating federally assisted education programs and

activities.

3

Romeo receives financial assistance from HEW in

support of its educational program, and it is ‘here-

fore subject to the provisions of Title IX of the

Education Amendments of 1972, 20 U.S.C. 1681 et

seq. (hereinafter “Title IX”) and to authorized reg-

ulations promulgated by HEW to effectuate those

provisions.

To implement Section 901(a) of Title IX, 20

U.S.C. 1681(a), which provides that, with certain

enumerated exceptions, “[n]o person * * * shall, on

the basis of sex, be excluded from participation in,

be denied the benefits of, or be subjected to discrimi-

nation under any education program or activity re-

ceiving Federal financial assistance,” HEW issued

regulations that, inter alia, prohibit sex discrimina-

tion in the employment practices of federal education

aid recipients. 45 C.F.R. 86.51 et seq.

On February 4, 1976, respondent Susan K. Gar-

rard, a high school counselor employed by Romeo,

filed a complaint with HEW alleging that Romeo’s

refusal to allow pregnant teachers to use sick leave

for the period during which they are disabled by

their condition constitutes sex discrimination by

treating pregnancy differently from other temporary

disabilities. After an investigation of the allegations

of this complaint, HEW notified Romeo that its policy

was in violation of both Title IX and 45 C.F.R. 86.57

(c), and it requested that Romeo take corrective

measures. Romeo responded by challenging HEW’s

authority to regulate employment under Title IX, and

on July 9, 1976, filed suit in the United States Dis-

4

trict Court for the Eastern District of Michigan,

challenging HEW’s authority to issue and enforce

its employment practices regulations, 45 C.F.R. 86.51

et seqg., and seeking to enjoin enforcement of the

pregnancy leave regulation, 45 C.F.R. 86.57(c).

Named as defendants were HEW and then Secretary

of HEW, F. David Mathews. Respondent Garrard

was permitted to intervene as a defendant.

On cross-motions for summary judgment, the dis-

trict court declared invalid 45 C.F.R. 86.57(c), hold-

ing that 20 U.S.C. 1681(a) (Section 901(a) of Title

IX) prohibited discrimination only against students

and that “[t]eachers * * * are hard pressed to fit

themselves within the plain meaning of § 1681’s pro-

hibitory language, general as it may appear on its

face” (App. C, infra, 37a). The court also con-

cluded that the legislative history of the statute did

not demonstrate an intent to include employment dis-

crimination within the coverage of Section 901(a)

of Title IX.

The court of appeals affirmed, finding “HEW’s

construction of Title IX to be strained” (App. A,

infra, 6a) and “[t]he arguments for reversal based

on the legislative history * * * not persuasive” (App.

A, infra, 8a). The court of appeals also relied upon

the reasoning of the United States Court of Appeals

for the First Circuit in Islesboro School Committee v.

Califano, 5938 F.2d 424 (1979), petition for cert.

pending sub nom. Harris v. Islesboro School Com-

mittee, No. 79-200 (App. A, infra, 9a-10a).

5

REASONS FOR GRANTING THE PETITION

The question presented in this case is the same as

that presented in the pending petitions in Harris v.

Islesboro School Committee, supra, and in Harris v.

Junior College District of St. Louis, No. 79-201.’ All

three cases involve the authority of HEW to issue

regulations prohibiting those receiving federal finan-

cial assitance for education programs and activities

from discriminating against their employees on the

basis of sex. The regulations at issue here are the

same as those at issue in Jslesboro. It would therefore

be appropriate for the Court to defer disposition of

this petition pending final disposition of the petition

in Islesboro.

CONCLUSION

The Court should defer disposition of this petition

pending its disposition of Harris v. Islesboro School

Committee, supra.

Respectfully submitted.

WADE H. McCREE, JR.

Solicitor General

SEPTEMBER 1979

1Copies of those petitions are being sent to counsel for

the respondents.

*

la

APPENDIX A

UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT

No. 77-1691

No. 77-1692

ROMEO COMMUNITY SCHOOLS, PLAINTIFF-APPELLEE,

Vv.

UNITED STATES DEPARTMENT OF HEALTH,

EDUCATION AND WELFARE, ET AL.,

DEFENDANTS-APPELLANTS,

and

SUSAN K. GARRARD,

DEFENDANT-INTERVENOR-APPELLANT.

APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE EASTERN DISTRICT OF MICHIGAN

Decided and Filed June 20, 1979

Before: WEICK, LIVELY and ENGEL, Circuit Judges

LIVELY, Circuit Judge. This appeal concerns Title

IX, §§ 901-907 of the Education Amendments of

1972, Pub. L. 92-318, 86 Stat. 235, codified at 20

i ,

2a

U.S.C. §§ 1681-1686 (1976). Title IX, which pro-

hibits sex discrimination, constituted a small part of

the Education Amendments of 1972 which dealt with

federal involvement in a wide range of activities of

educational institutions at all levels. For legislative

history and purpose of Pub. L. 92-318, see 1972 U.S.

Code Cong. and Adm. News, p. 2462, et seq. The

particular question for decision is whether section

901 (hereafter 20 U.S.C. § 1681)’ applies only to

students involved in programs or activities receiving

federal financial assistance or applies additionally to

employees of educational institutions receiving such

assistance. The district court held that § 1681 does

not deal with sex discrimination against employees

of educational institutions, but was enacted to pro-

hibit discrimination against students who are the

intended beneficiaries of federal financial assistance

to education. We agree and affirm.

This action was commenced by Romeo Community

Schools (Romeo) seeking a declaratory judgment

that Subpart E of Title IX regulations, 45 C.F.R.

Part 86, were adopted and issued by the Secretary

of Health, Education and Welfare (HEW) in excess

1 The operative language is found in § 1681(a): “(a) No

person in the United States, shall on the basis of sex, be ex-

cluded from participation in, be denied the benefits of, or be

subjected to discrimination under any education program or

activity receiving Federal financial assistance, except that

....” Nine exceptions are listed, which refer generally to

activities of institutions and organizations which have tra-

ditionally offered admission or membership only to persons

of one sex.

3a

of the authority conferred by Congress. The particu-

lar regulation which was in dispute was 45 C.F.R.

§ 86.57.2 Under the terms of its collective bargaining

2 § 86.57 provides:

§ 86.57 Marital or parental status.

(a) General. A recipient shall not apply any policy or

take any employment action:

(1) Concerning the potential marital, parental, or

family status of an employee or applicant for employment

which treats persons differently .on the basis of sex; or

(2) Which is based upon whether an employee or ap-

plicant for employment is the head of household or prin-

cipal wage earner in such employee’s or applicant’s

family unit.

(b) Pregnancy. A recipient shall not discriminate

against or exclude from employment any employee or

applicant for employment on the basis of pregnancy,

childbirth, false pregnancy, termination of pregnancy,

or recovery therefrom.

(c) Pregnancy as a temporary disability. A recipient

shall treat pregnancy, childbirth, false pregnancy, termi-

nation of pregnancy, and recovery therefrom and any

temporary disability resulting therefrom as any other

temporary disability for all job related purposes, includ-

ing commencement, duration and extensions of leave,

payment of disability income, accrual of seniority and

any other benefit or service, and reinstatement, and under

any fringe benefit offered to employees by virtue of em-

ployment.

(d) Pregnancy leave. In the case of a recipient which

does not maintain a leave policy for its employees, or in

the case of an employee with insufficient leave or accrued

employment time to qualify for leave under such a policy,

a recipient shall treat pregnancy, childbirth, false preg-

nancy, termination of pregnancy and recovery there-

from as a justification for a leave of absence without

pay for a reasonable period of time, at the conclusion

of which the employee shall be reinstated to the status

4a

agreement, pregnancy is not treated by Romeo the

same as other temporary disabilities for a number of

job related purposes. Prior to filing its complaint in

district court Romeo received a letter from the re-

gional director of HEW demanding that it alter its

practices with respect to pregnancy leave to conform

to § 86.57(c) and reimburse and adjust the salaries

and retirement credits of any employees who had

not been permitted to use accrued sick leave while

on pregnancy related leave since June 23, 1972. The

letter from HEW also required assurances from

Romeo that it would comply with § 86.57, and that

reimbursement had been made. Romeo was advised

that enforcement proceedings would be recommended

under 45 C.F.R. § 80.83* if these assurances were

not received.

In his opinion Judge Feikens of the district court

considered the legislative history of Title IX and its

similarities to Title VI of the Civil Rights Act of

1964. However, his decision was based primarily

upon the language of § 1681. The court concluded

which she held when the leave began or to a comparable

position, without decrease in rate of compensation or loss

of promotional opportunities, or any other right or

privilege of employment.

345 C.F.R. § 80.8 provides for effecting compliance “by the

the suspension or termination of or refusal to grant « — to

continue Federal financial assistance, or by any other means

authorized by law.” This regulation reflects the language

of §902 of Title IX, 20 U.S.C. § 1682, which provides for

enforcing § 1681 by termination of or refusal to grant or

continue assistance to any agency found in violation thereof,

“or by any other means authorized by law.”

5a

that students, not employees of educational institu-

tions, are the persons intended to be protected from

sex discrimination by Title IX. Romeo Community

Schools v. U.S. Department of HEW, 438 F.Supp.

1021 (E.D. Mich. 1977). Though the published opin-

ion refers to all of Subpart E of the Title IX regu-

lations, the judgment which was actually entered de-

clared only the regulations contained in 45 C.F.R.

§ 86.57 invalid.

Despite near unanimity among the courts which

have considered the issue,* HEW argues that § 1681

was intended to prohibit sex discrimination in em-

ployment practices by educational institutions and

that its regulations related to employees are author-

ized and valid. HEW asserts that the district court

construed the language of § 1681 narrowly rather

than broadlv, an approach which is not permitted

when considering civil rights legislation. Noting that

the opening words of the section are “[n]o person,”

HEW maintains that it was error to restrict this

broadest possible designator of beneficiaries by rely-

ing on later references to particular types of dis-

crimination which are prohibited. In substance, it is

4 See Isleboro School Comm. v. Califano, 593 F.2d 424 (1st

Cir. 1979), affirming Brunswick School Bd. v. Califano, 449

F.Supp. 866 (D. Maine 1978); Junior College Dist. of St.

Louis v. Califano, F.2d —— (8th Cir. No. 78-1830, de-

cided April 19, 1979), affirming 455 F.Supp. 1212 (E.D. Mo.

1978) ; University of Toledo v. HEW, 464 F.Supp. 693 (N.D.

Ohio 1979); McCarthy v. Burkholder, 448 F.Supp. 41 (D.

Kansas 1978); but see Piascik v. Cleveland Museum of Art,

426 F.Supp. 779 (N.D. Ohio 1976) (dictum in footnote).

6a

the position of HEW that teachers and counselors,

as well as students, are “persons” who participate in

and benefit from federally assisted programs and are

vulnerable to discrimination under such programs.

HEW seeks to bolster its argument by pointing out

that none of the exceptions contained in § 1681(a)

(1)-(9) excludes employment practices from cover-

age. This argument cuts both ways. An examination

of these provisions discloses that each exception re-

lates to students, student bodies or participants in

programs. They are not concerned with teachers or

staff. It may be fairly assumed that the exceptions

relate to students because students are the subject of

§ 1681; that is, the exceptions deal with the same

subject matter as that covered generally by the pre-

ceding language.

We find HEW’s construction of Title IX to be

strained. It seeks a reading of § 1681, “no person

shall be discriminated against, on the basis of sex,

in the operation of any educational institution receiv-

ing federal financial assistance.”” However, as ac-

tually written, the statute is not nearly so broad. The

words “no person” are modified by later language

which clearly limits their meaning. The concern of

this particular statute is not with all discrimination

against persons in any way connected with educa-

tional institutions which receive federal funding.

Rather, it reaches only those types of disparate treat-

ment which manifest themselves in exclusion from,

denial of benefits of, or otherwise result in discrimi-

nation on the basis of sex “under any education pro-

Ta

gram or activity receiving Federal financial assist-

ance ....” Unless the discrimination relates to a

program or activity which receives federal funding,

it is not prohibited by § 1681.

This is a reasonable construction of the language,

because Title IX does not stand alone. It is part of

a mosaic of federal statutes which protect the rights

of women and minorities. Two of the pre-existing

federal laws which prohibited discrimination in em-

ployment were amended by § 906 of Pub. L. 92-318,

the same statute which contained the operative and

enforcement provisions of Title IX (§§ 1681 and

1682). These amendments to the Equal Employment

Opportunities Act, Title VII of the 1964 Civil Rights

Act, 42 U.S.C. § 2000e, and the Equal Pay Act, 29

U.S.C. § 213(a), brought employees of educational

institutions engaged in educational activities within

their coverage and prohibited discrimination on the

basis of sex. The inclusion of these amendments to

existing laws which closed loopholes relating to em-

ployment practices required that Pub. L. 92-318, for

consistency, not contain a disclaimer similar to that

contained in Title VI.5 The elimination of this lan-

guage does not indicate that Title IX was intended

5 Section 604 of Title VI of the Civil Rights Act of 1964,

42 U.S.C. § 2000d-3 provides:

Nothing contained in this subchapter shall be construed

to authorize action under this subchapter by any depart-

ment or agency with respect to any employment practice

of any employer, employment agency, or labor organiza-

tion except where a primary object of the Federal

financial assistance is to provide employment.

8a

to cover employment practices. Rather it reflects the

fact that at that point in the legislative process such

a provision in Pub. L. 92-318 would have been in-

accurate and contradictory in light of this statute’s

extension of e:sting laws to cover employment prac-

tices of educational institutions.

Though the regulation by which HEW seeks to

enforce Title [X’s prohibition against discrimination

speaks of “other means authorized by law,” it is

clear that discontinuance of federal financial assist-

ance is the means of effecting compliance which is

most available to HEW and the primary means con-

templated by the enforcement provisions contained in

§ 1682. When this sanction is applied one result is

that the students who are engaged in the federally

funded activities suffer. This may be a reasonable

burden for the students to bear when the object is

to prevent or put an end to discrimination against

students. However, it is unreasonable to assume that

Congress intended for students in a school system to

be deprived of the benefits of federal funding as a

means of enforcing individual rights of teachers and

other school employees. This is particularly true in

view of the fact that the same bill included the amend-

ments which gave school employees direct and su-

perior remedies for sex discrimination provided in

Title VII of the 1964 Civil Rights Act. These reme-

dies involve no loss of student benefits.

The arguments for reversal based on the legisla-

tive history of Title IX are not persuasive. Certain

comments by Senator Bayh, sponsor of the bill which

9a

became Title IX, are quoted. In these comments Sen-

ator Bayh stated that a purpose of the bill was the

elimination of sex discrimination in employment by

educational institutions. These statements appear to

refer to § 906 of the bill then under consideration.

Section 906 consisted of the amendments to the Civil

Rights Act of 1964 and the Equal Pay Act previously

referred to. The legislation which Senator Bayh

sponsored was aimed at all sex discrimination in edu-

cation. However, it provided a different approach to

discrimination against students and against teachers

and other school employees. This construction is sup-

ported by the summary of the bill contained in the

Congressional Record. In this summary, by Senator

Bayh, there is a breakdown which treats the prohibi-

tion against sex discrimination in federally funded

education programs separately from the prohibition

against discrimination in education-related employ-

ment. In describing the latter prohibition the sum-

mary refers specifically to the bill’s expansion of cov-

erage and eradication of loopholes in existing laws

and describes the remedies under Title VII as “ex-

tremely effective.” Cong. Rec., S5806-07 (daily ed.

Feb. 28, 1972). These statements by the sponsor of

the legislation strengthen our conclusion that Congress

did not intend to deal with discriminatory employ-

ment practices when it enacted § 1681.

Both Judge Feikens in this case and Judge Bownes

in Isleboro School Comm. v. Califano, supra, have

fully answered the various arguments made in sup-

port of HEW’s construction of § 1681. Since we find

10a

both opinions to be in accord with our views, no pur-

pose would be served by dealing with the arguments

for reversal at length in this opinion.

The judgment of the district court is affirmed.

lla

APPENDIX B

UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT

Nos. 77-1691

77-1692

[Filed June 20, 1979]

ROMEO COMMUNITY SCHOOLS, PLAINTIFF-APPELLEE,

Vv.

UNITED STATES DEPARTMENT OF HEALTH,

EDUCATION AND WELFARE, ET AL.,

DEFENDANTS-APPELLANTS,

and

SUSAN K. GARRARD,

DEFENDANT-INTERVENOR-APPELLANT.

Before: WEICK, LIVELY and ENGEL, Circuit Judges

JUDGMENT

APPEAL from the United States District Court

for the Eastern District of Michigan.

THIS CAUSE came on to be heard on the record

from the United States District Court for the Eastern

District of Michigan and was argued by counsel.

12a

ON CONSIDERATION WHEREOF, It is now

here ordered and adjudged by this Court that the

judgment of the said District Court in this cause be

and the same is hereby affirmed.

It is further ordered that Plaintiff-Appellee re-

cover from Defendants-Appellants, Defendant-Inter-

venor-Appellant the costs on appeal, as itemized be-

low, and that execution therefor issue out of said

District Court if necessary.

ENTERED By ORDER OF THE COURT.

/s/ John P. Hehman

Clerk

A TRUE Copy

ATTEST:

JOHN P. HEHMAN

By /s/ Jo Ann McHale

Deputy Clerk

l3a

APPENDIX C

UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF MICHIGAN

SOUTHERN DIVISION

Civil Action No. 6-714388

Filed: April 7, 1977

ROMEO COMMUNITY SCHOOLS,

a Public Body Corporation, PLAINTIFF,

v.

UNITED STATES DEPARTMENT OF HEALTH, EDUCA-

TION, AND WELFARE, An Agency of the United

States of America, and F. DAVID MATTHEWS, Sec-

retary of United States Department of Health,

Education, and Welfare, DEFENDANTS.

MEMORANDUM OPINION

This is an action for declaratory judgment and

permanent injunction,, brought under 28 U.S.C.

§ 2201 and the Administrative Procedure Act, 5

U.S.C. §§ 701, et seqg., by plaintiff Romeo Commun-

ity Schools (Romeo) against defendant Department

of Health, Education, and Welfare (HEW).' Plain-

1 Plaintiff’s complaint names both the United States De-

partment of Health, Education, and Welfare and its Secre-

tary F. David Matthews, as party defendants. Since both de-

fendants are, in effect, the same party for the purpose of the

instant suit, this opinion will refer to only one defendant,

denominated as either “HEW” or “The Secretary,” or both.

l4a

tiff challenges the authority of defendant to promul-

gate certain administrative regulations under Title

IX of the Education Amendments of 1972, 20 U.S.C.

§§ 1681, et seg., governing sex discrimination in fed-

erally funded education programs. Specifically, plain-

tiff challenges the legality of the regulations contain-

ed in 45 C.F.R. Part 86, Subpart E, §§ 86.51, et seq.,

which purport to regulate sex discrimination in the

employment relationship between federally funded

public schools and their teacher employees. The case

is before the court on cross-motions for summary

judgment.’

I.

Plaintiff Romeo Community Schools is a Third

Class School District duly organized under the laws

of the State of Michigan, Romeo operates a public

school system in Macomb and Oakland Counties,

Michigan, with a total student enrollment currently

of 5,092. Romeo currently employs 244 teachers and

operates under a budget of fiscal 1976 of $7,210,000.

Plaintiff receives federal funds through the de-

fendant HEW for a number of its educational pro-

grams. For the last three years, Romeo has re-

ceived funds earmarked for pre-school and elementary

remedial reading programs under Title I. 20 U.S.C.

§§ 241 a-m. Under Title II, Romeo received federal

2 A hearing was held on these motions *ebruary 8, 1977. By

agreement of both plaintiff and defendant, a motion to inter

vene by Ms. Susan K. Garrard, a counselor in the Romeo

school system, was granted. fhe court has had the benefit

of excellent briefs and oral arguments from all parties.

15a

funds for the purchase of library books and other

learning materials. 20 U.S.C. $§ 821, et seg. Romeo

participates in a federally funded Vocational Edu-

cation Program with three other Macomb County

School Districts and operates two such programs of

its own, all at the secondary level. 20 U.S.C. §§ 1241-

1391. Plaintiff has also received funds for the last

three years under the National School Lunch Act,

42 U.S.C. §$ 1751, et seqg., which provides free milk

to disadvantaged students. This federal financial aid

to Romeo totaled $45,240 for the 1973-74 school year,

$92,351 for the school year 1974-75, and $114,949

for the last school year, 1975-76. Though significant,

these figures actually represent only a small frac-

tion of Romeo’s total budget—approximately 2% in

1976.

As a recipient of this federal aid, Romeo is sub-

ject to Title IX of the Education Amendments of

1972. 20 U.S.C. §§ 1681, et seg., Section 1681 of the

Act prohibits sex discrimination in federally funded

education programs: —

(a) 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

Under § 1682, the Department of HEW is empowered

to investigate reported violations of Title IX and to

Ee

16a

initiate administrative proceedings to enforce com-

pliance if voluntary compliance cannot be secured.’

*§ 1682. Federal administrative enforcement; report to

congressional committees

Each Federal department and agency which is empowered

to extend Federal financial assistance to any education pro-

gram or activity, by way of grant, loan, or contract other than

a contract of insurance or guaranty, is authorized and directed

to effectuate the provisions of section 1681 of this title with

respect to such program or activity by issuing rules, regula-

tions, or orders of general applicability which shall be con-

sistent with achievement of the objectives of the statute au-

thorizing the financial assistance in connection with which the

action is taken. No such rule, regulation, or order shall be-

come effective unless and until approved by the President.

Compliance with any requirement adopted pursuant to this

section may be effected (1) by the termination of or refusal

to grant or to continue assistance under such program or

activity to any recipient as to whom there has been an express

finding on the record, after opportunity for hearing, of a fail-

ure to comply with such requirement, but such termination or

refusal shall be limited to the particular political entity, or

part thereof, or other recipient as to whom such a finding

has been made, and shall be limited in its effect to the particu-

lar program, or part thereof, in which such noncompliance

has been so found, or (2) by any other means authorized by

law: Provided, however, That no such action shall be taken

until the department or agency concerned has advised the

appropriate person or persons of the failure to comply with

the requirement and has determined that compliance cannot

be secured by voluntary means. In the case of any action

terminating, or refusing to grant or continue, assistance

because of failure to comply with a requirement imposed

pursuant to this section, the head of the Federal department

or agency shall file with the committees of the House and

Senate having legislative jurisdiction over the program or

activity involved a full written report of the circumstances

and the grounds for such action. No such action shall become

effective until thirty days have elapsed after the filing of such

report.

17a

Refusals to comply can be sanctioned under § 1682

with a termination of federal aid of those programs

affected by the school’s discriminatory policies. Sec-

tion 1682 provides the Secretary’s only means of en-

forcing § 1681.

Under § 1682, the Secretary of HEW is also au-

thorized to promulgate “rules, regulations, or orders

of general applicability,” to effectuate the provisions

of § 1681, and pursuant to this authority, the Secre-

tary has promulgated a comprehensive set of regula-

tions, 45 C.F.R. §§ 86.1, et seg., which governs the

conduct of federally assisted schools in a number of

specific areas. Subpart E of these regulations, 45

C.F.R. §§ 86.51-86.61, purports to regulate the con-

duct of Title IX schools toward their teacher em-

ployees. Subpart E covers a wide range of employ-

ment practices, including recruitment, advertising,

and pre-employment inquiries, §§ 86.53, 86.59, 86.60;

employment criteria, § 86.52; employee compensa-

tion and fringe benefits, §§ 86.54, 86.56; and job

classification and structure, § 86.55. These regula-

tions, according to § 86.51, apply to employment prac-

tices in all programs operated by federally assisted

public schools. The focus of this litigation is 45

C.F.R. § 86.57, which requires all federally assisted

schools to treat pregnancy equally with sickness and

disability for purposes of leave and compensation

benefits:

§ 86.67 Marital or parental status

(a) General. A recipient shall not apply any

policy or take any employment action:

a een none Set ES —

LIP IIE OS

18a

(1) Concerning the potential marital, paren-

tal, or family status of an employee or applicant

for employment which treats persons differently

on the basis of sex; or

(2) Which is based upon whether an employee

or applicant for employment is the head of house-

hold or principal wage earner in such employ-

ee’s or applicant’s family unit.

(b) Pregnancy. A recipient shall not dis-

criminate against or exclude from employment

any employee or applicant for employment on

the basis of pregnancy, childbirth, false preg-

_nancy, termination of pregnancy, or recovery

therefrom.

(c) Pregnancy as a temporary disability. A

recipient shall treat pregnancy, childbirth, false

pregnancy, termination of pregnancy, and recov-

ery therefrom and any temporary disability re-

sulting therefrom as any other temporary dis-

ability for all job related purposes including

commencement, duration and extensions of leave,

payment of disability income, accrual of senior-

ity and any other benefit or service, and rein-

statement, and under any fringe benefit offered

to employees by virtue of employment.

(d) Pregnancy leave. In the case of a recipi-

ent which does not maintain a leave policy for

its employees, or in the case of an employee with

insufficient leave or accrued employment time to

qualify for leave under such a policy, a recipient

shall treat pregnancy, childbirth, false preg-

nancy, termination of pregnancy and recovery

therefrom as a justification for a leave of ab-

sence without pay for a reasonable period of

time, at the conclusion of which the employee

19a

shall be reinstated to the status which she held

when the leave began or to a comparable posi-

tion, without decrease in rate of compensation

or loss of promotional opportunities, or any other

right or privilege of employment.

Romeo is in apparent non-compliance with this reg-

ulation. The collective bargaining agreement be-

tween Romeo and the Romeo Education Association,

the bargaining representative for Romeo’s faculty

employees, specifically provides that pregnancy and

maternity leave shall not be treated equally with

sickness and disability leave. Article XX of the un-

ion contract provides that pregnancy leave may not be

charged against accrued sick leave and is not com-

pensable, either in salary or retirement credits.

Furthermore, teachers are required to begin their

pregnancy leave by the eighth month of pregnancy,

unless they have the permission of their physician

allowing them to complete the last two weeks of a

marking period, and teachers may not return to work

prior to the commencement of the post-natal period

or post-natal examination without express medical

permission.*

4 Article XX of Romeo’s outstanding collective bargaining

agreement provides:

1. “It is understood that pregnancy is not a sickness or in-

jury and is not applicable under the sick leave provisions

of this Agreement.”

2. ‘All teachers who become pregnant shall be granted leave

of absence. No salary will be received during the time of

20a

On February 4, 1976, a complaint was filed with

HEW by Susan K. Garrard, a high school counselor

in the Romeo system, alleging sex discrimination in

Romeo’s pregnancy leave employment policy.’ An in-

vestigation ensued, and on June 9, 1976, HEW’s Re-

gional Director for Civil Rights issued a letter to

plaintiff citing Romeo for non-compliance with 20

maternity leave. Schedule increment adjustments, salary

and retirement credit are not allowed for such a leave.”

8. “All pregnant teachers shall be required to commence the

leave of absence no later than the end of the eighth month

of pregnancy, unless they have their medical physician’s

approval which would allow them to complete the last two

weeks of a marking period.”

4. “No teacher is permitted to return to work until (a) a

conclusion of the post-natal period or post-natal examina-

tion, (b) without written authorization that the teacher

is physically able and capable of performing all duties and

functions of the job and does not create an exposure of

liability or employment risk. Otherwise, the normal re-

turn from a maternity (and child care) leave shall be

the commencement of the next marking period or next

school year, whichever is administratively applicable.”

5. “When the teacher reports to her supervising Principal or

Administrator that she is pregnant, she will also file a

letter with same Administrator that she holds the school

district harmless and without liability in the event she

or the unborn fetus shall be injured as a result of working

with students in the completion of her duties.”

5 A class action suit, brought as a private cause of action

under § 1681, has been initiated against plaintiff Romeo in the

Federal District Court for the Western District of Michigan

regarding this same pregnancy leave policy. Darlene Thomp-

son, et al. v. Romeo Bd. of Education, et al., 12 FEP 1700

(W.D. Mich. 1976). Susan Garrard is a member of the

plaintiff class in this suit. The action is currently pending.

2la

C.F.R. § 86.57, and hence non-compliance with Title

IX. In response, by letter dated June 24, 1976, plain-

tiff noted a “serious question” as to HE W’s authority

under Title IX to regulate the employment practices

of federally assisted schools. “It would appear,”

wrote plaintiff, “that HEW’s legislatively conferred

authority under this Title would extend only to the

persons who are the objects or beneficiaries of fed-

erally funded programs, i.e., the students.” Plaintiff

was given until June 26, 1976 to provide assurances

that its practices would be brought into compliance

with the regulation. This deadline was later ex-

tended to July 9, 1976; on July 9, this suit was com-

menced.°.

6 Initiation of this suit did not abate enforcement proceed-

ings. By letter dated August 31, 1976, Romeo was informed

by the Director of HEW’s Office for Civil Rights for Region

V that, in view of Romeo’s unwillingness to voluntarily com-

ply with the regulations in question, the matter had been

turned over to HEW’s Washington Office for Civil Rights, with

a recommendation to initiate enforcement proceedings. On

November 12, 1976, the Director of the Washington Office

informed Romeo that the matter was being referred to HEW’s

Office of General Counsel for the initiation of enforcement

proceedings. On November 15, 1976, enforcement proceedings

were commenced with the filing of an administrative com-

plaint. On December 12, 1976, the Office of Civil Rights

directed that final approval on any applications by Romeo

for increased aid to current programs or for aid to new

programs be deferred pending the outcome of enforcement

proceedings.

At a hearing before this court on February 8, 1977, plaintiff

made an oral motion for a preliminary injunction to restrain

further administrative action by HEW prior to the disposition

of its motion for summary judgment. The initial administra-

er PRC MS eT. Pe? ree

yr

22a

Il.

The court is faced at the outset with a motion to

dismiss by the defendant, who challenges plaintiff’s

complaint on grounds of ripeness, failure to exhaust

administrative remedies, and lack of subject matter

jurisdiction. Defendant’s ripeness argument is bot-

tomed on the fact that administrative enforcement

proceedings have not yet been completed in this case.

The Administrative Procedures Act only provides for

review of “final agency action,” 5 U.S.C. § 704, and

HEW argues that no such final action has yet been

taken here, since none of Romeo’s federal funds have

yet been terminated. Board of Education of the City

of Cincinnati v. Dept. of HEW, 396 F. Supp. 208,

248-49 (S.D. Ohio 1975). Indeed, there is as yet no

final determination of non-compliance with Title IX

by the Secretary. As a prerequisite to any judicial

review of this matter, defendant contends that such

a determination should be made. Toilet Goods Assoc.

v. Gardner, 387 U.S. 158 (1967); Weinberger v.

Salfi, 422 U.S. 749 (1975); DuBois v. Clark, 389

U.S. 309 (1967).

HEW also contends that plaintiff is bypassing its

administrative remedies by the premature commence-

ment of this suit. Myers v. Bethlehem Shipbuilding

tive prehearing conference in this matter was scheduled for

the following day, February 9, 1977. This court contacted

the presiding Administrative Law Judge, the Honorable Allen

E. Gramza, on February 9 and secured his agreement to

postpone further administrative action for 45 days, pending

the issuance of this opinion.

23a

Corp., 303 U.S. 41, 50-51 (1938). It is defendant’s

position that the issues raised in plaintiff’s complaint

should first be addressed to HEW in the context of

enforcement proceedings, so that HEW can utilize

its expertise in this field to make an initial ruling

on plaintiff’s claims. Best v. Humbolt Placer Mining

Co., 371 U.S. 334, 338 (1963); United States v.

Philadelphia Nat. Bank, 374 U.S. 321, 353 (1963).

At the very least, defendant argues that a thorough

factual record should be made at the administrative

level, so that HEW’s authority to regulate employ-

ment practices under Title IX and plaintiff’s legal

challenges to that authority are clearly focused. Air-

craft and Diesel Equip. Corp. v. Hirsh, 31 U.S. 752,

767-768 (1947).

HEW further contends that this court would not

have jurisdiction over plaintiff’s suit even after a

final decision to cut off Romeo’s federal financial as-

sistance under Title IX. According to defendant,

plaintiff is already entitled under § 1683 to review

by the United States Court of Appeals for the Sixth

Circuit of any final action by HEW terminating fi-

nancial aid.’ Defendant contends that this explicit

720 U.S.C. § 1683 states in pertinent part:

“Any department or agency action taken pursuant to

section 1682 of this title shall be subject to such judicial

review as may otherwise be provided by law for similar

action taken by such department or agency on other

grounds.”

Section 1683 thus incorporates any judicial review provisions

otherwise established by Congress for reviewing decisions of

HEW terminating federal aid to education. Specifically, Title

24a

statutorily-created review procedure is exclusive and

precludes this court from entertaining plaintiff’s ac-

tion under the Administrative Procedures Act at any

time. DuBois v. Clark, supra; Lance Roofing Co. v.

Hodgson, 348 F. Supp. 685 (N.D. Ga. 1972).

These contentions are not persuasive. Section 1682

authorizes HEW to promulgate “rules, regulations,

or orders of general applicability” to effectuate the

purposes of Title IX. ‘Agency action,” for the pur-

poses of the Administrative Procedures Act, expressly

includes “the whole or a part of an agency rule,” and

“rule” is separately defined by the Act as “the whole

or a part of an agéncy statement of general or par-

ticular applicability and future effect designed to

implement, interpret, or prescribe law or policy... .”

5 U.S.C. 551(4). The regulations here in question

have the force of law; they are in final, approved

form and currently in full effect. Their promulga-

tion is therefore “final agency action” reviewable

under the A.P.A.

The validity of federal agency regulations may,

under certain circumstances, be judicially tested

prior to their enforcement. Abbott Laboratories v.

Gardner, 387 U.S. 186 (1967) forcefully upholds

I and II of the Elementary and Secondary Education Act of

1965, 20 U.S.C. §§ 241, et seq., and 821, et seq., through which

Romeo receives the bulk of its federal assistance, permit re-

view of aid termination decisions by the United States Court

of Appeals for the circuit in which the affected school district

is located. 20 U.S.C. §§ 241(k), 827. It is defendant’s position

that this right of review is available to plaintiff under the

incorporating language of § 1683.

25a

pre-enforcement actions of this nature. In that case,

the Commissioner of Food and Drugs had issued

regulations under the 1962 Amendments to the Food,

Drug, and Cosmetic Act, 21 U.S.C. §§ 301, et seq.,

requiring that all labels and advertisements for pre-

scriptions drugs carry both the drug’s proprietary

name and its “established” name, as designated by the

Secretary of HEW. A group of drug manufacturers

brought suit to have these regulations declared in-

valid prior to the effective date of their enactment

on the ground that the Commissioner had exceeded

his statutory authority in promulgating them. The

Supreme Court held that a district court could prop-

erly entertain such pre-enforcement action under the

Administrative Procedures Act and the Declaratory

Judgment Act, 28 U.S.C. § 2201.

In reaching this decision, the Court stated that

access to judicial review should only be restricted

upon “clear and convincing evidence” that such was

the legislative intent. Abbott Laboratories v. Gard-

ner, supra, p. 141, quoting Rusk v. Cort, 369 U.S.

367, 379-380 (1962). The court found that the

special review provisions established under the Food,

Drug, and Cosmetic Act did not preclude pre-enforce-

ment review. In concluding that the controversy in

Abbott Laboratories was ripe for judicial resolution,

the Court cited and discussed several factors, includ-

ing the “purely legal” nature of the issues involved

and the direct, immediate and adverse impact of the

regulations upon petitioners, who would have been

automatically liable for both civil and criminal pen-

if

‘

!

——— aad

- See :

26a

alties for non-compliance once the regulations became

effective. It noted the significant burden which com-

pliance would have imposed on petitioners’ business

operations as a further consideration which militated

for pre-enforcement review, and the lack of any evi-

dence to show that the suit was brought for the pur-

pose of delaying or impeding administrative enforce-

ment of the regulations in question.

All of these factors are present in this case. HEW

has already acted under the disputed regulations to

postpone any final approval of applications by Romeo

for funding of new programs or for significant in-

creases in the funding of existing programs. Though

the amount of this financial assistance may be rela-

tively small, the court credits the affidavit of Robert

Reid, Superintendent of Romeo Community Schools,

in which he states that HEW’s action has neverthe-

less adversely affected Romeo in its budgeting and

planning responsibilities. See Continental Air Lines,

Inc. v. C.A.B., 522 F.2d 107, 126 (D.C. Cir. 1975) ;

Textile and Apparel Group, Am. Imp. Assoc. v.

F.T.C., 410 F.2d 1052, 1054, cert. denied, 396 U.S.

910 (D.C. Cir. 1969). Plaintiff also contends that

defendant’s steps toward regulatory enforcement have

undermined public confidence in plaintiff, and this

may well be so. See A. O. Smith Corp. v. F.T.C.,

530 F.2d 515, 524 (8rd Cir. 1976). Thus, while the

regulations here in question do not carry the kind of

automatic civil and criminal penalties involved in

Abbott Laboratories, their impact upon plaintiff has

nevertheless been made direct, immediate, and ad-

verse by defendant’s pre-enforcement conduct.

27a

In order to comply with the disputed regulations,

Romeo would be forced to modify the existing col-

lective bargaining agreement between Romeo and its

teacher employees, and a new policy regarding preg-

nancy and maternity leave would have to be imple-

mented. All employees who are not allowed to use

accrued sick leave time for pregnancy-related leave

since June of 1972 would have to be reimbursed for

salary and schedule increments lost as a result of

Romeo’s existing policies, and salary and retirement

credits of these employees would have to be adjusted

as well. Clearly, compliance with HEW’s regulations

would require an immediate and significant change

in the conduct of plaintiff’s affairs. Abbott Labora-

tories v. Gardner, supra, p. 152; A. O. Smith Corp.

v. F.T.C., supra.

It is not apparent how defendant’s administrative

enforcement proceedings could materially advance the

resolution of this dispute. The only issue raised by

plaintiff’s complaint is defendant’s authority under

Title IX to promulgate’ the regulations contained in

Subpart E of 45 C.F.R. §§ 86.1, et seq. Romeo freely

concedes non-compliance with these regulations, and

the evidence supporting this concession seems clear

enough. Under these circumstances, there does not

appear to be any factual issue for which an extensive

administrative record need be compiled. Leedom v.

Kyne, 358 U.S. 184, 188 (1958); Troy v. Shell Ou

Co., 378 F. Supp. 1042, 1044-1045 (E.D. Mich. 1974).

28a

Romeo’s challenge to HEW’s authority in this case

is purely legal.

Nor are any administrative remedies foreclosed by

Romeo’s refusal to preliminarily exhaust compli-

ance proceedings. As noted, plaintiff’s complaint

raises the legal issue of HEW’s statutory authority

to issue the regulations in question; enforcement pro-

ceedings, however, are concerned primarily, if not

solely, with the factual issue of compliance. More-

over, there is no question that HEW fully regards

the disputed regulations as valid; HEW would not be

enforcing them if it did not. HEW cannot claim

primary jurisdiction over a legal dispute for which it

can provide no meaningful forum. Seepe v. Dept. of

Navy, 518 F.2d 760, 762 (6th Cir. 1975); Wein-

berger v. Salfi, supra, 764-765; F.7.C. v. Markin, 532

F.2d 541 (6th Cir. 1976); Columbia Broadcasting

System v. United States, 316 U.S. 407 (1942); Jewel

Companies, Inc. v. F.T.C., 482 F.2d 1155, 1159 (7th

Cir. 1970).

This controversy is ripe for judicial resolution,

and plaintiff, under the circumstances, need not await

review by the United States Court of Appeals. Even

if the Court of Appeals has jurisdiction under the

reviewing statutes cited by defendant to adjudicate

the issues raised in this case, such jurisdiction would

not be exclusive. Here, as in Abbott Laboratories, the

legislative scheme explicitly contemplates a cause of

action under the A.P.A. for redress of unlawful

29a

agency action “not otherwise subject to judicial re-

view.” 20 U.S.C. § 1683.°

Plaintiff has made out a valid case for pre-

enforcement relief, and defendant’s motion to dismiss

must accordingly be denied. There is nothing to be

gained by requiring plaintiff to exhaust administra-

tive remedies which do not exist or to await uncertain

future opportunities for legal redress before the Court

of Appeals. If these regulations are invalid, plain-

tiff is entitled to know that now.

ITI.

The issue of HEW’s authority to promulgate reg-

ulations governing employment relations under Title

IX is essentially one of statutory construction. Title

IX was patterned after Title VI of the Civil Rights

Act of 1964, 42 U.S.C. §§ 2000 d)—-d)5), which

prohibits race discrimination in all federally funded

programs. Most of the provisions of Title IX are

virtual carbon copies of parallel provisions in Title

VI; indeed, Title IX was originally contemplated as

8 Section 1688 provides in pertinent part:

In the case of action, not otherwise subject to judicial

review, terminating or refusing to grant or to continue

financial assistance upon a finding of failure to comply

with any requirement imposed pursuant to section 1682

of this title, any person aggrieved (including any State

or political subdivision thereof and any agency of either)

may obtain judicial review of such action in accordance

with chapter 7 of Title 5, and such action shall not be

deemed committed to unreviewable agency discretion

within the meaning of section 701 of that Title.

| |

30a

a simple amendment to Title VI adding sex discrim-

ination in federally assisted education programs to

the general prohibitory language of § 2000 d).° Both

Title IX and Title VI contain similar provisions re-

garding investigation and enforcement, the imposi-

tion of sanctions, the promulgation of regulations

by HEW, and judicial review.”

There is, however, one important difference be-

tween these two statutes: Title VI contains a provi-

sion specifically excluding discrimination in employ-

ment from its coverage:

§ 2000 d)3)

Nothing contained in this subchapter shall be

construed to authorize action under this sub-

chapter by any department or agency with re-

spect to any employment practice of any em-

ployer, employment agency, or labor organiza-

tion except where a primary objective of the

Federal financial assistance is to provide em-

ployment.

Title IX contains no parallel provision.

This fact, in defendant’s view, is clear proof that

Congress did not mean to limit the scope of Title

IX to exclude coverage of sex discrimination in em-

ployment. Defendant argues that a “commonsense”

*H.R. 16098, § 805(a), 91st Cong., 1st Sess. (1969). It

appears that the original drafts of Title IX were “marked

up” xeroxed copies of Title VI. See Minutes of the House

Committee of Education and Labor, (Sept. 30, 1971).

10Compare 20 U.S.C. §§ 1681, 1682, and 1683 with 42

U.S.C. §§ 2000 d), 2000 d)1), and 2000 d)2).

3la

reading of § 1681, standing alone, shows that teach-

ers fall within the class of individuals protected

by this provision, since the statute provides that “no

person” shall be subjected to discrimination, and the

term ‘‘person” includes both students and teachers.”

Thus, HEW construes its legislative mandate as au-

thorizing direct regulation of sex discrimination in

employment by federally funded schools; it is HEW’s

position that such discrimination is itself grounds

for terminating a school’s federal aid, without regard

to whether students are affected by the school’s em-

ployment policies.

Defendant also relies on the legislative history of

Title IX to show a congressional intent to regulate

employment practices under § 1681. Senator Birch

Bayh, the Senate sponsor of Title IX, made these re-

marks during introduction of the bill:

“Amendment 874 is broad, but basically it closes

loopholes in existing legislation relating to gen-

eral education programs and employment result-

ing from those programs. ... More specifically,

the heart of this amendment is a provision ban-

ning sex discrimination in educational programs

receiving Federal funds. The amendment would

cover such crucial aspects as admission proce-

dures, scholarships, and faculty employment,

with limited exceptions.”

[118 Cong. Rec. § 2745 (daily ed., February 28,

1972) emphasis supplied]

11 Brief in Support of Defendant’s Motion to Dismiss, or,

In the Alternative, For Summary Judgment, p. 15.

32a

Moreover, Congress reviewed the Title IX regulations

in July, 1975, under 20 U.S.C. § 1232 (d), and de-

clined to disapprove them. From the hearings held

regarding these regulations, it is clear that HEW’s

authority to regulate employment practices under

Title IX was specifically discussed and considered.

Azain, Senator Bayh:

“[T]he heart of these guidelines is the prohibi-

tion of the thwarting of equal opportunity for

female students and teachers at any educational

level.”

These views were shared by Representative Patsy

Mink:

“TT ]he legislative history of Title IX indicates

that employment was indeed covered by the broad

mandate of the law for nondiscrimination on the

basis of sex. The original House bill included an

exemption for employment patterned after the

exemption in Title VI of the Civil Rights Act.

The Senate version contained no such exemption,

indicating that employment was covered. In con-

ference, the language of the Senate version was

adopted.”

Hearings, supra, p. 164.

The Secretary further argues that his own inter-

pretation of Title IX’s scope is entitled to great

weight as an official and contemporaneous interpre-

tation by the enforcing agency. Griggs v. Duke Power

Co., 401 U.S. 424, 433-484 (1971) Lau v. Nichols,

414 U.S. 563, 571 (1974); Trafficante v. Metropoli-

tan Life Ins. Co., 409 U.S. 205, 210 (1972).

83a

The absence of an explicit provision in Title IX,

similar to § 604 of Title VI, 42 U.S.C. § 2000d)2),

excluding employment discrimination from its cover-

age does not show a congressional intent to make

Title IX broader than Title VI in this respect.

Rather, this discrepancy must be traced to the fact

that Title [IX was enacted as part of a larger legisla-

tive program which also included an amendment to

Title VII of the Civil Rights Act of 1964, 42 U.S.C.

§§ 2000 e), et seqg., enlarging the scope of that pro-

vision to include sex discrimination in employment, as

well as an amendment to the Equal Pay Act, giving

the Secretary of Labor authority to regulate sex dis-

crimination in educational employee compensation.

29 U.S.C. § 206 d).” A provision similar to § 604

was left out of this package in order to avoid the in-

herent contradiction between such a provision and

these Amendments.

HEW’s arguments based on the legislative history

of Title IX are not compelling. Senator Bayh’s

quoted assertion of employment discrimination cov-

erage by Title IX in his remarks during intro-

duction of this bill was made in reference to

the entire Title IX legislative package, including

the Title VII and Equal Pay Act amendments. The

legislative history of the regulations themselves is

entitled to little if any weight in determining the

12 The provision of Title IX which amended Title VII passed

both Houses of Congress and the conference committee, but

was deleted prior to enrollment as public law, due to the fact

that a similar amendment had already been enacted as part of

another bill.

34a

scope of § 1681. These regulations were reviewed

some three years after the enactment of Title IX

and by a different Congress. Nor is the congressional

failure to disapprove the regulations any indication

of their validity. 20 U.°.C. § 1232 expressly provides

that the failure of Congress to disapprove regulations

promulgated by HEW is not evidence of approval and

creates no presumption of validity.”

Plaintiff has mustered its own presentation of

Title IX’s legislative history to support an alterna-

tive construction of its coverage. Plaintiff points out

that § 601 of Title VI, 42 U.S.C. § 2000 d), upon

which § 1681 of Title IX is based, was never con-

sidered by Congress as covering race discrimination

in employment, even standing by itself. The exclu-

sionary language of § 604, 42 U.S.C. § 2000 d)2),

which finds no counterpart in Title IX, was only in-

cluded in Title VI as an afterthought, to make this

point clear and to resolve any ambiguity in the langa-

1820 U.S.C. § 1232 d)1) provides in part:

Failure of the Congress to adopt such a concurrent

resolution with respect to any such final regulation pre-

scribed under any such Act, shall not represent, with

respect to such final regulation, an approval or finding

of consistency with the Act from which it derives its

authority for any purpose, nor shall such failure to

adopt a concurrent resolution be construed as evidence

of an approval or finding of consistency necessary to

establish a prima facie case, or an inference or pre-

sumption, in any judicial proceeding.

35a

age of § 6014." Plaintiff also notes that Title IX con-

tained a provision identical to § 604, denominated

§ 904, throughout its passage. It was only in com-

mittee conference just prior to final passage, that the

provision was deleted.’* This indicates, in plaintiff's

view, that Congress considered § 904 a needless re-

statement of § 901’s limited coverage.

Plaintiff also notes that during the hearings held

on Title IX before the House Special Subcommittee on

Education, not one witness who testified about Title

IX’s employment discrimination coverage did so with

reference to § 901. Rather, all such testimony was

directed toward those provisions of Title IX which

amended Title VII and the Equal Pay Act to include

employment discrimination in education within their

purview.’® The court, however, will not pursue plain-

14 Senator Humphrey, the floor leader of Title VI, stated in

reference to § 604 that the provision merely “made a number

of points clearer and more specific. We have expressed in

specific legislative language what has always been intended.”

110 Cong. Rec. 12707 (1964).

18 The report of the committee conference is cryptic in its

reference to this deletion:

(f) In addition, the House amendment, but not the

Senate amendment, provided that nothing in the title

authorizes action by any department or agency with

respect to any employment practice of any employer,

employment agency, or labor organization except where a

primary objective of the Federal financial assistance is to

provide employment. The House recedes.

1972 U.S. Code Cong. & Admin. News, Vol. 2, pp. 2671-2672.

16 Hearings on Section 805 of H.R. 16098 Before the Special

Subcommittee on Education on the House Committee on

36a

tiff’s analysis of the legislative history of this Act

further, for there is a much more obvious and rele-

vant source for determining the scope of Title IX

and that is Title IX itself.

IV.

The analysis begins with the prohibitory language

of § 1681:

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 dis-

crimination under any education program or

activity receiving federal financial assistance. ...

Though cast in broad terms, § 1681 nevertheless ad-

dresses itself only to sex discrimination against the

participants in and the beneficiaries of federally as-

sisted education programs. Section 1681 must there-

fore be read to protect from sex discrimination only

those persons for whom the federally assisted educa-

tion programs are established, and this can only mean

the school children in those programs. As a reference

to faculty employees, the language of § 1681 is in-

direct, if not obscure. Teachers participate in these

programs only to the extent that they may teach and

help administer some of them; teachers benefit from

these programs only to the extent that the funds for

them may be used to pay their salaries; teachers are

“subjected to discrimination under’ these programs,

Education and Labor, 91st Cong., 2nd Sess. (1970), 8-9, 27,

79, 128, 159, 304-306, 379.

37a

(emphasis added), only to the extent that the pro-

grams themselves may be established and operated in

an employment-related discriminatory way. Teachers,

in short, are hard pressed to fit themselves within

the plain meaning of § 1681’s prohibitory language,

general as it may appear on its face. When Congress

means to statutorily regulate employment discrimin-

ation, it uniformly does so in more explicit terms

than this.”

HEW’s “commonsense” interpretation of § 1681

notwithstanding, the court is constrained to read this

language as a prohibition on sex discrimination

against students and only students. The benefici-

aries of Romeo’s Title I remedial reading programs

are the schoolchildren in those programs. The par-

ticipants in Romeo’s vocational education programs

are the students learning new vocations through them.

The beneficiaries of Romeo’s School Lunch program

are the disadvantaged children who receive free milk

as a result of this federal assistance. Section 1681

was written in broad terms not to cover all forms

of sex discrimination in education, but only to cover

the wide variety of education programs funded by

the federal government and the many ways in which

sex discrimination against students in those programs

can be manifested.

This construction of § 1681 is borne out by the

series of coverage exclusions provided in § 1681 it-

17 See, for example, 42 U.S.C. §§ 2000 e), et seq.; 29 U.S.C.

§ 206 d).

38a

self, all of which relate to student activity or enroll-

ment. Thus, § 1681(a) (1) excludes coverage of ad-

missions to vocational and nigher educational insti-

tutions; (a) (2) excludes coverage of admission to

educational institutions in the process of changing

from a single-sex to a co-educational admissions

policy; (a) (4) excludes coverage of military acade-

mies; (a) (5) excludes coverage of admissions to

educational institutions which have traditionally ad-

mitted members of only one sex; (2) (6) (A) excludes

coverage of the membership practices of fraternities

and sororities; (a) (6) (B) excludes coverage of the

membership practices of the YMCA, YWCA, the

Boy Scouts, Campfire Girls, and other youth serv-

ice organizations which have traditionally limited

their membership to one sex. Not one of these exclu-

sions concerns a federally assisted educational insti-

tution’s employment practices, and this can be

explained in only one of two ways: either Congress

meant to allow wide-open coverage of employment

practices under § 1681 while closely regulating § 1681

coverage in all other respects, or, and what appears

more likely, Congress never meant to include employ-

ment practices within the coverage of § 1681 in the

first place.

This construction of § 1681 is further supported by

an analysis of § 1682, which defines HEW’s enforce-

ment power under the Act. As noted previously, the

only sanction permitted under § 1682 is a termina-

tion of federal funds to the noncomplying institu-

tion. This aid termination provision, quite obviously

39a

is of limited enforcement value. Imposition of this

sanction will not necessarily compel a delinquent

school system to modify or eliminate its discrimina-

tory practices, but will necessarily penalize the stu-

dents involved or enrolled in the affected programs.

In a situation where the students themselves are the

victims of sex discrimination, it is reasonable to as-

sume that Congress balanced the costs and benefits

involved and determined that any benefit which stu-

dents might derive from the education programs fi-

nanced by HEW was more than outweighed by the

sex discrimination in those programs. A termination

of federal aid under these circumstances has ob-

vious justification.

However, in a situation where a federally assisted

school system discriminates against its teacher em-

ployees, the § 1682 sanction has very limited justifica-

tion. Termination of federal aid will have no more

enforcement value in such a case, and the students

participating in affected programs will still be the

ones to suffer from the aid termination sanction,

even though the sanction will not be imposed for the

purpose of enforcing their rights. The court doubts

that Congress would resort to such an arbitrary en-

forcement measure where alternative methods of pro-

hibiting employment discrimination, more effective

and less costly than this, are readily available.

There is a further limitation on HEW’s enforce-

ment powers under § 1682 which is relevant here.

HEW’s authority to terminate federal funds for non-

compliance with § 1682 is “limited in its effect on the

oe

40a

particular program, or part thereof, in which such

non-compliance has been found.” This limiting lan-

guage makes the sanction provided by § 1682 “pro-

gram specific.” HEW is prohibited from terminat-

ing financial assistance to some programs in a

school’s curriculum simply because other programs

are not in compliance with § 1681. Thus, HEW must

determine the appropriateness of aid termination un-

der § 1682 on a program-by-program basis.

This limitation on HEW’s enforcement power is

implicitly a limitation on HEW’s authority to regu-

late as well. HEW cannot regulate the practices of

an educational institution unless those practices re-

sult in sex discrimination against the beneficiaries

of some federally assisted education program oper-

ated by the institution. The focus of § 1631—elim-

ination of sex discrimination in federally funded edu-

cation programs—must be the focus of HEW’s reg-

ulations under § 1682 as well. To this extent, HEW’s

regulatory power is also “program specific.”

Regulation of employment practices, however, is

inherently non-“program specific.” An educational

institution’s employment policies are general in na-

ture, covering, by and large, all faculty employees

involved in all of an institution’s education programs,

whether federally funded or not. Regulation of those

policies by HEW will therefore necessarily entail the

regulation of employment practices unrelated to the

particular programs funded by the federal govern-

ment and without regard to whether such practices

result in sex discrimination against the beneficiaries

4la

of these programs. Compliance with HEW’s regu-

lations under subpart E will inevitably require modi-

fications of employment policies which apply gen-

erally to all faculty employees and education pro-

grams throughout the system. Yet the federal in-

terest involved here, as defined by the scope of

§§ 1681 and 1682, is much narrower and does not

appear to justify this kind of regulatory leverage.

In Romeo’s case, for example,. only one out of every

ten education programs receives federal financial as-

sistance; less than 5% of Romeo’s faculty employees

are involved in any federally financed programs.

The necessarily comprehensive nature of HEW’s

employment regulations is borne out by the regula-

tions here in dispute. Section 86.51 makes clear that

Subpart E of Part 86, 45 C.F.R. §§ 86.51, ef seq.,

covers all employment practices in all programs of

federally financed schools :

§ 86.51 Employment.

(a) General. (1) No person shall, on the

basis of sex, be excluded from participation in,

be denied the benefits of, or be subjected to dis-

crimination in employment, or recruitment, con-

sideration, or selection therefor, whether full-

time or part-time, under any education program

or activity operated by a recipient which receives

or benefits from Federal financial assistance.

(2) A recipient shall make all employment

decisions in any education program or activity

operated by such recipient in a nondiscrimina-

tory manner and shall not limit, segregate, or

classify applicants or employees in any way

42a

which could adversely affect any applicant’s or

employee’s employment opportunities or status

because of sex.

This coverage is patently overbroad. HEW could not

enforce its regulations as to employment practices in

Romeo’s non-federally funded education programs ex-

cept by terminating aid to those programs which are

federally funded, and this would constitute a clear

violation of the programatically specific limitation on

HEW’s enforcement powers contained in § 1682."

An even more persuasive indication that Congress

did not intend to regulate employment practices un-

der § 1681 is the fact that Congress specifically

provided for such regulation under both Title VII

and the Equal Pay Act elsewhere in the very same

legislation. Under these amending provisions, both

the EEOC and the Secretary of Labor are now em-

powered to investigate and bring suit to correct any

alleged sex discrimination in educational employment.

These governmental agencies, particularly the EEOC,

were established specifically for the purpose of reg-

lating discrimination in employment practices. These

agencies have the expertise and their enabling leg-

18 HEW contends that the term “program or activity” as

used in § 1681 refers to the entire operation of the recipient

educational institute. Brief in Support of Defendant’s Motion

to Dismiss or, In the Alternative, For Summary Judgment,

p. 23. Hence, HEW argues that it may regulate employment

practices through school district’s entire system. This novel

and protean interpretation of a well-established statutory

term was thoroughly refused in Board of Public Instruction

of Taylor Co. V. Finch, 414 F.2d 1068, 1077 (5th Cir. 1969).

43a

islation has provided them with the investigative and

enforcement machinery necessary to compel com-

pliance with regulations against sex discrimination in

employment. HEW does not have similar enforce-

ment authority. Even under HEW’s own interpreta-

tion of its powers, a failure or refusal to comply

with its regulation on employment discrimination can

only be sanctioned with a termination of federal

funds to the delinquent educational institution. While

Congress does, as defendant points out, tend to wide-

ly delegate regulatory authority in the field of civil

rights, it is difficult to believe that Congress felt

any real need under Title IX to delegate to HEW

such marginal regulatory authority as an addition

to that already clearly and adequately established

in two other federal regulatory agencies.

For all of these reasons, the court holds that HE W’s

regulations purporting to govern employment dis-

crimination in federally funded educational institu-

tions are not in furtherance of the legislative pur-

pose of § 1681, and are therefore not authorized by

§ 1682. In view of the legislative history of the Act,

the specific prohibitory language of § 1681 itself,

the series of exclusions to its coverage all of which

relate to non-employment practices, the limitation of

§ 1682’s enforcement sanctions to a termination of

federal financial aid, the further limitation of this

termination power to the particular federally financed

programs affected, and the provision in other parts

of the same legislative package for regulation of sex

discrimination in employment by both the EEOC end

44a

the Department of Labor, the court is persuaded that

§ 1681 must be interpreted as a prohibition only on

sex discrimination by federally funded educational

institutions against their students.

Vv.

Finally, defendant raises an “infection” theory, by

which it claims the authority under Title [IX to regu-

late sex discrimination against teachers to the ex-

tent that such discrimination may “infect” a school

system’s federally funded education programs and so

constitute sex discrimination against students in

those programs. This argument finds its source in a

discussion, largely dicta, by the United States Court

of Appeals for the Fifth Circuit in the case of Bd.

of Education of Taylor Co. v. Finch, 414 F.2d 1068

(5th Cir. 1969). Taylor Co. was actually a Title VI

ease involving a decision by HEW to terminate fed-

eral aid to all of plaintiff's education programs due

to a determination of non-compliance with Title VI

in some of them. The Court of Appeals for the Fifth

Circuit ruled this agency action illegal, holding that

Title VI’s program-specific aid termination sanction

prevents HEW from condemning programs by asso-

ciation. The court then discussed potential situa-

tions in which discrimination in one education pro-

gram could provide a basis for terminating aid in

another, or in which some form systemic, non-pro-

atic discrimination could infect a particular

federally funded education program and render it

discriminatory in effect or operation :

45a

We note finally that the purpose of the Title

VI cutoff is best effectuated by separate consid-

eration of the use or intended use of federal

funds provided by the grant are administered

in a discriminatory manner, or if they support

a program which is infected by a discriminatory

environment, then termination of such funds is

proper.

Bd. of Education of Taylor Co. v. Finch, supra, p.

1078.

HEW argues that this recognized potential for dis-

crimination against students as a result of discrimi-

nation against their teachers provides sufficient jus-

tification for the regulation of employment practices

under § 1681. HEW contends that where it can es-

tablish such a relationship between faculty discrimi-

nation and student discrimination in a federally

funded education program, it is justified in enforc-

ing the employment regulations in Subpart E as

necessary.

There was a good deal of discussion at oral argu-

ment regarding this “infection” theory; it was

treated extensively in the briefs. Whatever its va-

lidity or significance, however, the possibility of such

a discriminatory infection does not authorize HEW

to regulate employment practices for their own sake,

and that quite clearly is what HEW purports to do

through Subpart E of its Title IX regulations. There

is no provision in any of these regulations which

specifies that the particular employment practice

regulated must result in substantial sex discrimina-

tion against students in federally financed education

46a

programs, nor does it appear that HEW considers

itself under any obligation to establish such resultant

student discrimination before the requirements of

Subpart E may be enforced.”

This deficiency is fatal to defendant’s “infection”

argument, for the regulations must be judged as

written. This court has neither the power nor the

inclination to rewrite these regulations by construing

their coverage of employment practices as reaching

only situations where sex discrimination against stu-

dents in affected programs has resulted. Defendant’s

Subpart E regulations are plainly focused on employ-

ment practices per se. To judicially engraft onto

each of them an implicit requirement of infection

would not merely provide a saving limitation on their

coverage, it would substantially alter their meaning

and effect.

Defendant’s infection theory provides no basis in

any event for legitimating its regulation of employ-

ment practices under Title IX. Even if HEW could

establish, for example, that Romeo’s pregnancy leave

employment policies had infected one or more of

Romeo’s federally assisted programs SO as to cause

sex discrimination against students in those pro-

grams, HEW would still have no power to regulate

Romeo’s pregnancy leave policies directly. Section

1681 is concerned solely and simply with sex diserimi-

nation against students, and regulations promulgated

in furtherance of § 1681 must have a similar focus.

19 HEW has alleged “infection” at one point in its complaint

against Romeo.

47a

To allow HEW to use its authority under § 1682 to

regulate employment practices under the guise of

regulating sex discrimination against students would

extend its authority beyond the clear purposes of

§ 1681. The marginal enforcement value of such a

regulatory scheme and the obvious potential for bu-

reaucratic overreaching persuade this court that HEW

cannot directly regulate employment practices under

Title IX even where resultant student discrimination

is present. The legislative. intention was plainly

otherwise.

VI.

Judgment will be entered declaring the regulations

contained in Subpart E, 45 C.F.R. §§ 86.51, et seq.

invalid and of no legal force and effect. An ap-

propriate order may be submitted.

/s/ John Feikens

JOHN FEIKENS

United States District Judge

DATE: April 7, 1977, -

Detroit, Michigan.

48a

APPENDIX D

UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF MICHIGAN

SOUTHERN DIVISION

Civil Action No. 6-71438

ROMEO COMMUNITY SCHOOLS,

a Public Body Corporation, PLAINTIFF,

Vv.

UNITED STATES DEPARTMENT OF HEALTH, EDUCA-

TION, AND WELFARE, An agency of the United

States of America, ET AL., DEFENDANTS.

ORDER

At a session of said Court held in the

Federal Building, Detroit, Michigan, on

May 18, 1977.

PRESENT: HONORABLE JOHN FEIKENS

United States District Judge

In accordance with the Memorandum Opinion filed

April 7, 1977,

49a

IT IS ORDERED that the regulation contained in

45 C.F.R. § 86.57 be and the same hereby is declared

invalid and of no legal force and effect.

/s/ John Feikens

United States District Judge

A TRUE Copy

HENRY R. HANSSE™!

Clerk

By /s/ Gregg A. Greschak

Deputy Clerk

W 0. 8. GOVERNMENT PRinTine OFrice; 1979 300804 77