# Appendix — Hillsdale College v. Department of Education

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Appendix
- **Published:** January 1, 1984
- **Citation:** 466 U.S. 901

## Text

Office - rr
RO-TERR vILen™
No. MAR 16 1983
— — ft ACEXANDER L STEVAS,
CLERK
IN THE —

Supreme Court of the United States

OCTOBER TERM, 1982

HILLSDALE COLLEGE,
Petitioner,
Ve

DEPARTMENT OF EDUCATION, et ai.,
Respondents.

APPENDIX TO
PETITION FOR A WRIT OF CERTIORARI TO THE
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT

ROBERT W. BARKER
Counsel of Record
Luisa L. LANCETTI
WILKINSON, BARKER, KNAUER
& QUINN
1735 New York Avenue, N.W.
Washington, D.C. 20006
(202) 783-4141
Attorneys for Petitioner

= ==
WILSON - EPES PRINTING Co.. INC. - 789-0096 - WASHINGTON. DC. 20001

TABLE OF APPENDICES

Page
Opinion of the United States Court of Appeals for
the Sixth Circuit, December 16, 1982 ............. la
Judgment of the Court oo... ccccccccccccscssescccceccoceeeeese. 42a
Final Decision of the Reviewing Authority, Civil
Rights, October 25, 1979 .........ccccccccccccsscsoosescecesceees.. 48a
Initial Decision, Department of Health, Education,
& Welfare Administrative Proceeding, August 23,
ype EE RS oe ee SES ME eee 55a
Education Amendments of 1972, Title IX:
20 U.S.C. § 1681 .......... AA A DIE NEE et 2 OCOD TEED 80a
as AF MIE ncsstccsonsaccsssesecka.cc. wee
RR eee oes ee er ed .. 85a
BE CrP. Part 206 (1GGR) ooncccccccescescesescs.... Grey. 86a
HEW Form 639A, Assurance of Compliance with
Title 1X of the Education Amendments of 1972
and the Regulation Issued by the Department of
Health, Education, & Welfare in Implementation
IE cnet enin ae re ee a 125a

Letter from Assistant Attorney General Wm.
Bradford Reynolds to Clarence M. Pendleton, Jr.,
Chairman of the U.S. Commission on Civil Rights,
dated September 16, 1982 oo ccccceeeee. 13la

la

APPENDIX A

[OPINION OF THE UNITED STATES
COURT OF APPEALS FOR THE SIXTH CIRCUIT)

UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT

No. 80-3207

HILLSDALE COLLEGE,
‘ Petitioner,
DEPARTMENT OF HEALTH, EDUCATION,
AND WELFARE, ET AL.,

Respondents.

ON REVIEW FROM THE DEPARTMENT OF
HEALTH, EDUCATION, AND WELFARE

Decided and Filed December 16, 1982

Before: Epwarps, Chief Circuit Judge; CEcIL* and
BROWN ®**, Senior Circuit Judges.

Brown, Senior Circuit Judge, delivered the opinion of
the Court, in which CEcIL, Senior Circuit Judge, joined.
Epwarps, Chief Judge, (pp. 25-38) filed a separate dis-
senting opinion.

* Judge Cecil concurred in this opinion prior to his death on
November 26, 1982.

** Circuit Judge Brown retired from regular active service under
the provisions of 28 U.S.C. § 371(b) on June 16, 1982, and became
a Senior Circuit Judge.

2a

BAILEY Brown, Senior Circuit Judge. This appeal
arises out of a compliance proceeding initiated against
Hillsdale College by the General Counsel of the Depart-
ment of Health, Education, and Welfare (“HEW”) ' in
December, 1977, pursuant to the provisions of Section 902
of Title IX of the Education Amendments of 1972, 20
U.S.C, §§ 1681-1686 (1976) (“Title IX”), and the regu-
lations promulgated thereunder? HEW sought an order
terminating the financial assistance Hillsdale College
students receive through various federal student loan and
grant programs because of Hillsdale’s refusal to file HEW
Form 639A (“Assurance of Compliance with Title IX
Regulations”) as required by 34 C.F.R. § 106.4 (1981).°
Hillsdale’s refusal to execute the Assurance of Compli-
ance is the only basis for the HEW enforcement action;
no allegations of actual sex discrimination on the part of
the college have been made or are before this court. For
the reasons stated herein, we hold that Hillsdale College
is not required to execute the Assurance of Compliance as
a condition of its students’ continued receipt of federal
financial assistance and hereby reverse the Order issued
below to that effect.

‘ HEW’s functions under Title IX were transferred in 1979 to
the Department of Education. See North Haven Bd. of Educ. v.
Bell, 456 U.S. ——, 102 S.Ct. 1912, 72 L.Ed.2d 299 (1982). Both
agencies shall hereinafter be referred to as HEW.

* The regulations promulgated by HEW originally appeared at 45
C.F.R. Part 86, but were recodified in connection with the estab-
lishment of the Department of Education. 45 Fed.Reg. 30802
(1980). See note 1 supra. The regulations are now found at 34
C.F.R. Part 106 (1981).

*34 C.F.R. § 106.4 (1981) reads in pertinent part as follows:

(a) General. Every application for Federal financial assist-
ance for any education program or activity shall as condition
of its approval contain or be accompanied by an assurance
from the applicant or recipient, satisfactory to the Assistant
Secretary, that each education program or activity operated
by the applicant or recipient and to which this part applies
will be operated in compliance with this part.

3a

In an administrative proceeding before the HEW Civil
Rights Reviewing Authority it was held that Hillsdale
may be required to execute the Assurance of Compliance
as a condition of its students’ continued receipt of fed-
eral financial assistance. This appeal followed. 20 U.S.C.
§ 1683 (1976).

I. Introduction

Hillsdale College is a private, nonsectarian, coeduca-
tional college located in Hillsdale, Michigan with an enroll-
ment of approximately 1,000 students. Since its founding
in 1844, Hillsdale College has refused to accept any fed-
eral or state aid. Certain of its students, however, indi-
vidually secure loans or grants to pay the costs of their
education under four federal programs: the National Di-
rect Student Loan (“NDSL”) Program,‘ the Basic Edu-
cational Opportunity Grant (“BEOG’) Program,° the
Supplementary Educational Opportunity (“SEOG”) Pro-
gram,° and the Guaranteed Student Loan ("“GSL”) Pro-

*20 U.S.C. §§ 1087aa-1087ff (1976). Under the NDSL Program,
loans are made by Hillsdale to its students on the basis of need.
The funds are used by the students to pay the costs of education,
either by direct payment to Hillsdale (e.g., tuition) or to private
vendors (¢.g., books, rent for off<ampus housing, etc.). In the
year ending June 30, 1978, approximately 107 students at Hillsdale
College secured approximately $104,000 in such loans. See Joint
Stipulation of Facts, No. 4.

*20 U.S.C. § 1070a (1976). Under the BEOG Program, students
secure grant funds directly from the United States to defray educa-
tional costs. In the year ending June 30, 1978, 54 Hillsdale students
secured approximately $54,000 in such grants. See Joint Stipule-
tion of Facts, No. 5.

*20 U.S.C. §§ 1070b-1070b-3 (1976). Under the SEOG Program,
funds allocated by HEW to Hillsdale are awarded by Hillsdale to
needy students to defray educational expenses. In the year ending
June 30, 1978, approximately 53 students attending Hillsdale Col-
lege were awarded $37,400. See Jv int Stipulation of Facts, No. 7.

4a

gram.’ In the year ending June 30, 1978, approximately
one-fourth of Hillsdale’s student body received aid under
these loan and grant programs.

Title IX, enacted into law on June 23, 1972, is designed
to prevent sex discrimination in federally assisted educa-
tion programs and activities. Section 90l(a) of Title IX
provides as follows:

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... .

20 U.S.C. §168l(a) (1976). Section 902 of Title IX,
which provides for the enforcement of Section 901, au-
thorizes HEW to issue regulations to implement Section
901 and to enforce such regulations by administrative
enforcement proceedings.* The ultimate sanction for non-

720 U.S.C. §§ 1071-1087-4 (1976). Under the GSL Program,
students apply, to private lending institutions for loans guaranteed
in whole or in part by the United States. The funds are used to
defray educational expenses. In the year ending June 30, 1978, 51
Hillsdale students secured approximately $123,806 in GSL loans.
See Joint Stipulation of Facts, No. 6.

* Section 902 of Title IX, 20 U.S.C. § 1682 (1976), reads in part
as follows:

Each Federal department and agency which is empowered
to extend Federal financial assistance to any education program
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 financia] assistance in connection with which the
action is taken. No such rule, regulation, or order shall become
effective unless and until approved by the President. Com-
pliance with any requirement adopted pursuant to this section
may be effected (1) by the termination of or refusal to grant

5a

compliance is the termination of federal assistance to
any program in which noncompliance is found. Section
903, 20 U.S.C. § 1683 (1976), provides for judicial re-
view of any department or agency action taken pursuant
to Section 902. These sections of Title IX were derived
from the virtually identical language of Title VI of the
Civil Rights Act of 1964, which prohibits race discrimina-
tion in federally assisted programs.”

On June 4, 1975, HEW issued final regulations to “ef-
fectuate Title IX of the Education Amendments of 1972.
.” 34 C.F.R. § 106.1 (1981). The portions of the
regulations at issue in this case dea] with the definitions
of “recipient” and “federal! financial assistance.” Section
106.2(g) (1) (ii) defines “federal financial assistance” to
include:

Scholarships, loans, grants, wages or other funds
extended to any entity for payment to or on behalf
of students admitted to that entity, or extended di-
rectly to such students for payment to that entity.

The term “recipient” is defined in the regulations to
mean:

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 upportunity for hearing, of a failure to com-
ply with such requirement, but such termination or refusal
shall be limited to the particular political entity, or part there-
of, or other recipient as to whom such a finding has been made,
and shal! be limited in its effect to the particular program, or
part thereof, in which such non-compliance has been so found,
or (2) by any other means authorized by law. ...

9 42 U.S.C, § 2000d (1976). Sections 602 and 603 of Title VI are
absolutely identical to sections 902 and 903 of Title IX; section
601 is almost identical except that it prohibits discrimination based
on “race, color or national origin” whereas section 901 prohibits dis-
crimination based on sex, and section 901 is limited to “any educa-
tion program or activity” whereas section 601 covers “any program
or activity” (emphasis added).

6a

[A]ny State or political subdivision thereof, or any
instrumentality of a State or politica] subdivision
thereof, any public or private agency, institution, or
organization, or other entity, or any person, to whom
Federa! financia] assistance is extended directly or
through another recipient and which operates an edu-
cation program or activity which receives or benefits
from such assistance, including any subunit, succes-
sor, assignee, or transferee thereof.

34 C.F.R. § 106.2(h) (1981) (emphasis added). An ex-
ception to this definition is found in 34 C.F.R. § 106.2(g)
(5) (1981) which, in accordance with Section 902 of Title
IX, exempts financial assistance in the form of contracts

of insurance or guaranty from the enforcement authority
of HEW.

The regulations, under Section 1064(a), further pro-
vide that each “recipient” of “federa? financial assist-
ance,”’ as defined above, must submit to HEW an “As-
surance of Compliance” with Title IX, stating that each
education program or activity operated by the institution
to which the regulations apply will be conducted in com-
pliance with Title IX and the regulations."”

Because Hillsdale College refused to execute such an
Assurance of Compliance, HEW instituted these proceed-
ings. Hillsdale’s basic arguments as to why the order
cutting off funds is invalid are as follows. First, it ar-
gues that, because it does not operate any “education
program or activity receiving Federal financial assist-

1° See note 3 supra. The Assurance of Compliance, HEW asserts,
is critical to its effective enforcement of Title IX insofar as it pro-
vides a means of monitoring the threshold compliance with the
statute by the large number of universities, colleges, schools, and
other institutions covered by Title IX. A similar regulatory scheme
is employed by the various agencies in charge of enforcing Title
VI. See, e.g., 38 C.F.R. § 18.4 (1981) (assurance of compliance
required as a condition of receipt of federal financial assistance
from the Veterans Administration).

7a

ance,” 20 U.S.C. § 1681(a) (1976), it is not a “recipent”
of such assistance within the meaning of Title IX and
therefore, contrary to the regulations, is not covered by
Title IX at all. Stated slightly differently, Hillsdale con-
tends that the receipt by its students of federal financial
assistance does not make it, the institution, a “recipient”
under Title IX. Second, Hillsdale argues that the federal
loans and grants cannot be terminated because of its fail-
ure to sign an Assurance of Compliance with Title IX
regulations since enforcement under Title IX is “program-
specific’ and it can be required to assure compliance only
as to programs actully receiving federal assistance. Im-
plicit in this argument is the proposition that it is, at the
most, subject to regulation under Title IX only as to its
administration of the student loan and grant programs.
While recognizing that under the Assurance the recipient
agrees only to comply with the regulations to the extent
applicable to it, Hillsdale points out that it is HEW’s
very theory that the entire institution is subject to such
regulation.’' Third, Hillsdale argues that termination of
federa] assistance, under the statute, cannot in any event
be done unless there has been a showing of actual sex
discrimination in the program receiving federal as-
sistance.

A. The ALJ Decision

The matter was referred to an Administrative Law
Judge (“ALJ”) upon a joint stipulation of facts and, on
August 23, 1978, the ALJ issued his Initial Decision deny-
ing HEW’s request for an order terminating federal fi-
nancial assistance to Hillsdale’s students.

The ALJ initially found that, under the definitions set
forth in the regulations, the payments by HEW to the

‘! Hillsdale also contends that if Title IX is construed to apply
to it to the extent urged by HEW, the statute would be unconsti-
tutional. In view of our disposition, we need not consider this
contention. Lynch Vv. Overholser, 369 U.S. 705 (1967).

8a

students under the NDSL, SEOG, and BEOG programs
constituted federal financial assistance received by
Hillsdale:

The financial assistance helps students pay for their
education at Hillsdale by defraying their costs of
tuition, books, room and board and other expenses in-
curred in attending Hillsdale. Since funds are pro-
vided which Hillsdale would otherwise have to sup-
ply from its own resources, the total funds available
to Hillsdale to carry on its education programs will
also allow students to attend Hillsdale who would
otherwise not have the financial means to do so, and
so enlarge the population on which Hillside can draw
for students.

This finding by the ALJ that Hillsdale was a recipient
of federa) financial assistance under the regulations and
Title IX was held to be “persuasively supported” by the
case of Bob Jones University v. Johnson, 306 F.Supp. 597
(D.S.C. 1974), aff'd without opinion, 529 F.2d 514 (4th
Cir. 1975. Bob Jones arose under Title VI of the Civil
Rights Act of 1964 and involved the payment of veter-
ans’ benefits to veterans attending Bob Jones University
in Greenville, South Carolina. The University, which had
a policy of denying admission to unmarried nonwhite stu-
dents for religious reasons, refused to sign an Assurance
of Compliance with Title VI. As a result, all VA assist-
ance to the University was terminated.

The district court in Bob Jones upheld the termina-
tion, finding the veterans’ benefits to be federal financial
assistance “received” by the University. 396 F.Supp. at
601-602. In addition, the court held that the veterans’
payments were “specifically tied to the beneficiary’s par-
ticipation in an educational program or activity,” equat-
ing the statutory phrase “program or activity” with the
entire institution. Jd. at 602. Relying on such language,
the ALJ found that, insofar as the federal grant and
loan monies “received” by Hillsdale were not earmarked

9a

for specific programs but were utilized for general educa-
tional purposes, the institution as a whole was being fi-
nancially supported through the payment made by the
students under the federal programs. Consequently, the
ALJ concluded, “it is the entire entity, Hillsdale College,
which must vouch that each education program of activity
operated by it will be operated in compliance with Title
i.”

Although the ALJ found Hillsdale, as an institution,
to be a recipient of federa] financial assistance by virtue
of the student aid programs, the College was not required
by the ALJ to sign the Assurance of Compliance. The
ALJ noted that the Assurance of Compliance imposed a
contractual duty on Hillsdale to comply with Title IX and
Title IX regulations. Because several courts, including
this court, had held that the regulations found at 34
C.F.R. $§ 106.51-106.61 (1981), relating to the prohibi-
tion of sex discrimination in employment, were invalid,
the ALJ held that under such circumstances, it would be
an abu-e of discretion and arbitrary and capricious to
grant the relief requested by HEW."*

12 See Seattle University v. HEW, 621 F.2d 992 (9th Cir. 1980),
vacated sub nom. United States Dept. of Educ. v. Seattle Univ., 456
U.S. ——, 102 S.Ct. 2264 (1982); Dougherty Cty. School System v.
Harris, 622 F.2d 735 (5th Cir. 1980), vacated sub. nom. Bell v.
Dougherty Cty. School System, 456 U.S. ——, 102 S.Ct. 2264
(1982); Romeo Community Schools v. HEW, 600 F.2d 581 (6th
Cir.), cert. denied, 444 U.S. 972 (1979); Junior College Dist. v.
Califano, 597 F.2d 119 (8th Cir.), cert. denied, 444 U.S. 972
(1979) ; Isleboro School Comm. V. Califano, 593 F.2d 424 (1st Cir.),
cert. denied, 444 U.S. 972 (1979). These decisions have been over-
turned by the Supreme Court in North Haven Bd. of Educ. v. Bell,
456 U.S. ——, 102 S.Ct. 1912, 72 L.Ed.2d 299 (1982). See notes
15-16 infra and accompanying text.

18 In addition, the ALJ held that the GSL Program, insofar as
it involves the guarantee of loans made by private financial institu-
tions, falls within the Section 902 exemption for contracts of in-
surance or guaranty.

10a

B. The Reviewing Authority Decision

HEW and Hillsdale both filed exceptions to the ALJ’s
Initial Decision with the HEW Reviewing Authority, Civil
Rights. On October 25, 1979 the Reviewing Authority
denied Hillsdale’s exceptions and granted HEW’s excep-
tions in part, upholding the ruling of the ALJ that the
Title IX regulations deeming Hillsdale to be a recipient
of federa] financial assistance are not in excess of the
statutory authority granted HEW by Congress. The Re-
viewing Authority, however, rejected the ALJ’s holding
that Hillsdale cannot be required to sign the Assurance
of Compliance in light of the fact that several courts had
found part of the Title IX regulations to be invalid. By
executing the Assurance of Compliance, the Reviewing
Authority held, Hillsdale would bind itself to comply only
with lawful regulations."*

C. North Haven Bd. of Educ. v. Bell

The Supreme Court, subsequent to the decisions of the
ALJ and the Reviewing Authority, held in North Haven
Bd. of Educ. v. Bell, 456 U.S. ——, 102 S.Ct. 1912, 72
L.Ed.2d 299, 305 n.4 (1982), that the employment prac-
tices of educational institutions are subject to Title IX
regulation provided the other statutory requirements are
met."* North Haven thus removes the underlying basis

* The Reviewing Authority also reversed the ALJ's determina-
tion that the GSL Program does not constitute federal financial
assistance. The Program, insofar as the interest payments there-
under are direct and immediate disbursements of federal funds
aiding the college in the same manned as the funds disbursed
under the NDSL Program, was held to go beyond the terms of the
contract of insurance or guaranty exemption found in section 902.

%* The Court concluded, after an examination of the legislative
and post-enactment history of Title IX, that Section 901(a)’s
directive that “[n)o person ... shall, on the basis of sex, be ex-
cluded from participation in, be denied the benefits of, or be sub-
jected to discrimination under any education program or activity
receiving federal financial assistance,” while not expressly referring

lla

for the ALJ’s determination that Hillsdale cannot be re-
quired to execute the Assurance of Compliance, which was
that signing the Assurance would compel the College to
abide by the unlawful employment regulations.

In the course of upholding the validity of the em-
ployment regulations, however, the Court stressed the
“program-specific’ nature of Title IX, holding that “an
agency's authority under Title IX both to promulgate reg-
ulations and to terminate funds is subject to the program-

specific limitation of $$ 901 and 902.” Jd. at ——, 72
L.Ed.2d at 317-318.’ The Court, nevertheless, expressly
declined to define the term “program.” Jd. at ——, 72

L.Ed.2d at 319.

II. Issues on Appeal

As previously stated, Hillsdale College is presently be-
fore this court seeking review of the Order of the HEW
Reviewing Authority requiring it to execute the Assurance
of Compliance in order to remain eligible for federal fi-
nancial] assistance to its students. Under the facts pre-
sented, two major issues are before this court: (1)
whether the regulations, by deeming Hillsdale College to
be a “recipient” of federal financial assistance subject to
Title IX by virtue of the receipt of its students of federal
grants and loans, exceed the statutory authority granted
HEW by Congress, and (2) whether HEW in any event
can insist on the excution of the Assurance of Compliance

to employees, does encompass employees as well as students of edu-
cational institutions. 72 ..Ed.2d at 307-318.

1® The Court held that the employment regulations were not in-
consistent with Title IX’s program-specific character because, al-
though they spoke in general terms of the employment practices of
educational institutions, they were limited by 34 C.F.R. § 106.1
(1981), which states that the purpose of the regulations is “to
effectuate Title IX ... [,] which is designed to eliminate (with
certain exceptions) discrimination on the basis of sex in any educa-
tion program or activity receiving Federal financial assistance... .”
(emphasis added). North Haven, 72 L.Ed.2d at 318-319.

12a

as a condition precedent for the continuation of federal
student assistance programs at Hillsdale College.’’ We
determine that Hillsdale is a “recipient” within the mean-
ing of Title IX but that the regulations are invalid to the
extent that they purport to subject Hillsdale College as an
institution to the strictures of Title IX. Specifically, we
conclude that the regulations, as applied in this instance,
contravene the program-specific nature of Title IX by
equating the statutory phrase “education program and ac-
tivity” with the educational institution itself. We reach
this conclusion after examining the statutory language of
Title IX, its legislative history, and the relevant case law.

III. Statutory Language of Title IX

The two core provisions of Title IX, Section 901 and
902, both contain express references to the program-
specific focus on the statute. As noted by the Supreme
Court in North Haven, Section 901 sets forth the stat-
ute’s program-specific prohibition of gender discrimina-
tion, while Section 902 relates to enforcement, providing
for termination of federal funds or denial of future
grants as the ultimate sanction for noncompliance so
long as the termination or refusal “is limited in its effect
to the particular program, or part thereof, in which non-
compliance has been so found... .” 20 U.S.C. $ 1682
(1976). See North Haven, 72 L.Ed.2d at 304. The Court
in North Haven relied on the existence of program-specific
language in both the funding termination provision of
Section 902 and the portion of Section 902 authorizing
the issuance of implementing regulations * to reject the
implicit view of the lower court that HEW’s authority
to issue regulations is broader than its enforcement au-

17 A third issue before this court is whether or not the GSL
Program falls within the exemption found in Section 902 for con-
tracts of insurance or guaranty. The holding of this case, however,
makes it unnecessary to reach this issue.

18 See note 8 supra.

18a

thority, noting that “it makes little sense to interpret the
statute ... to authorize an agency to promulgate rules
it cannot enforce.” Jd. at ——, 72 L.Ed.2d at 318.

Although stressing the requirement that Title IX reg-
ulations conform to the program-specific nature of the
statute, the Supreme Court in North Haven, as pre-
viously stated, expressly declined to define the term “pro-
gram.” It is the position of HEW that, when an educa-
tional institution “receives” federal financial assistance by
virtue of the receipt by its students of federal grants and
loans, the entire educational institution constitutes a
single “education program or activity.” 20 U.S.C. § 1681
(a) (1976). Specifically, HEW asserts that since “sig-
nificant” portions of the loan and grant monies provided
to the students at Hillsdale are used to pay tuition, which
generally supports the College as a whole, the College it-
self is the relevant “education program and activity”
receiving federal financial assistance and thus the entire
College may be regulated under Title IX consistently with
the statute’s program-specific mandate.

An examination of the statutory language of Title IX
does not bear out HEW’s proposed expansive reading of
the phrase “education program or activity.” Initially, it
should be pointed out that neither the term “educational
institution” nor any equivalent term appears in Title
IX’s general prohibition, implementation, or enforcement
provisions. Instead, in each instance, the phrase “educa-
tion program or activity” is used. The term “educational
institution” does however appear throughout the statutory
exceptions to the general prohibition against sex discrimi-
nation set out in Section 901,’ and is defined at Section
901(c) as follows:

'* The exceptions to the general prohibition against discrimina-
tion set forth at Section 901(a) (1-9), 20 U.S.C. § 1681(a) (1-9)
(1976), include, inter alia, educational institutions of religious
organizations with contrary religious tenets, educational institu-
tions training individuals for military services or the merchant

l4a

(ce) For purposes of this chapter an educational
institution means any public or private preschool,
elementary, or secondary school, or any institution
of vocational, professional, or higher education, ex-
cept that in the case of an educational institution
composed of more than one school, college, or depart-
ment which are administratively separate units, such
term means each such school, college, or department.

20 U.S.C. $1681(c) (1976). In Rice v. President and
Fellows of Harvard College, 663 F.2d 336 (1st Cir.
1981), cert. denied, 50 U.S.L.W. 3838 (U.S. April 20,
1982), the First Circuit held that “[t)he precision with
which Congress defined educational institution strongly
indicates that it did not equate education program with
educational institution.” 663 F.2d at 338. The appellant
in Rice, a female law student at Harvard Law School,
had brought suit under, inter alia, Title IX claiming sex
discrimination in the awarding of grades at Harvard
Law School. Because she had not specified any federally
funded program in which she suffered discrimination on
the basis of sex, the appellant argued that Harvard Law
School should be deemed the relevant “education pro-
gram” by virtue of its status as a recipient of federal
funds for its work study program. No allegation of dis-
crimination, however, was made concerning the School’s
handling of the work study program.

The court held that the appellant failed to bring her-
self within the protection of Title IX. Finding that Con-
gress had “obviously recognized that an educational in-
stitution offers a number of education programs and ac-
tivities,” the court concluded that “the only meaningful

marine, public educational institutions with traditional and con-
tinuing admissions policies, father-son or mother-daughter activi-
ties at educational institutions, scholarships awarded in “beauty”
pageants by institutions of higher education, and, with regard to
admissions, certain specified educational institutions and institu-
tions commencing planned changes in admissions policies.

l5a

interpretation of {20 U.S.C.] §1681(a) is that it pro-
hibits sex discrimination in a federally funded education
program offered by an educational institution.” 663 F.2d
at 338.

IV. Legislative History

The First Circuit’s conclusion in Rice that Congress.
in passing Title IX, did not equate “education program”
with “educational institution” is supported by an examin-
ation of the statute’s legislative history. The legislative
history of Title IX and Title VI, upon which Title IX
is based,*’ supports the position taken by Hillsdale that
Congress adopted a programmatic as opposed to an in-
stitutional approach to the problem of sex discrimination
in education.

Title IX originated in a floor amendment to S. 6F9,
92d CoNG., 1st SEss. (1971) (Education Amendments of
1971) sponsored by Senator Bayh. As originally intro-
duced, Senator Bayh’s amendment read as follows:

No person in the United States shall, on the ground
of sex, be excluded from participation in, be denied
the benefits of or be subject to discrimination under
any program or activity conducted by a public in-
stitution of higher education, or any school or de-
partment of graduate education, which is a recipient
of Federal financial assistance for any education pro-
gram or activity. ...

117 Conc. Rec. 30156 (1971). This amendment em-
bodied an institutional aproach as it would regulate all
operations of an educational institution which received
federal assistance for any of its programs or activities.
The amendment, however, was ruled to be nongermane to
the bill under consideration and defeated. 117 Conc. REc.
30415 (1971).

* See note 9 supra and accompanying text.

l6a

In February 1972, the provision ultimately enacted as
Title IX was introduced in the Senate by Senator Bayh
during debate on the Education Amendments of 1972.
118 Conc. REc. 5803 (1972). The institutional approach
of the original proposal was replaced by the program-
specific language presently contained in Sections 901 and
902. No explanation or discussion was given for the
change of approach.*' The Senate adopted the amendment
and, on June 8, 1972, Congress passed the provisions as
Title IX of the Education Amendments of 1972. The
measure was signed into law by the President on June
23, 1972.

The legislative history of Title IX is sparse. Because
the statute is a result of a floor amendment, there are
no committee reports discussing its provisions.*? The Su-

*1In Haffer v. Temple University, 524 F.Supp. 531 (E.D.Pa.
1981), appeal docketed, No. 82-1049 (3rd Cir. Nov. 13, 1981), the
court cited the lack of explanation or discussion of the wording
change between amendments in support of its view that the “history
of the bill through enactment . . . is ambiguous.” /d. at 534.

*2 The Supreme Court in North Haven noted that, because of the
lack of committee reports discussing the provisions of Title IX, the
remarks of Senator Bayh, as sponsor of the language ultimately
enacted, are the “only authoritative indications of congressional
intent regarding the scope of §§901 and 902." North Haven, 72
L.Ed.2d at 311. Unfortunately, Senator Bayh did not specifically
address the issue at hand during the course of the Congressional
proceedings. The issue was presented to Senator Bayh, however,
during the hearings held to determine if the proposed regulations
“as they are written are consistent with the law, or whether they
should be returned to [HEW] for redrafting until they are con-
sistent with the law from which they must draw their authority.”
Hearings on Title IX Before the Subcommittee on Postsecondary
Education of the House Committee on Education and Labor, 94th
CONG., lst Sess. 97 (1975) (remarks of Rep. O’Hara). Senator
Bayh’s remarks at the hearing are in pertinent part as follows:

REP. QUIE: I am talking about whether the Department of
Health, Education, and Welfare has overstepped its bounds in
claiming that an institution is conducting a program or activity

17a

preme Court in North Haven, however, found the shift
in approach from the 1971 amendment to the 1972
amendment to be significant:

Title IX’s legislative history corroborates its gen-
eral program-specificity. Congress failed to adopt
proposals that would have prohibited a// discrimina-
tory practices of an institution that receives federal
funds. See 117 Cong. Rec. 30155-30157, 30408
(1971) (Sen. Bayh’s 1971 amendment) ....

North Haven, 72 L.Ed.2d at 318 ‘emphasis in the
original).

It thus appears clear that Title IX as enacted adopts
the programmatic as opposed to institutional approach to
discrimination on the basis of sex in education. This con-
clusion, however, is not dispositive of the issue of whether
the regulations are inconsistent with the program-specific
nature of Title IX to the extent they deem Hillsdale Col-
lege to be a recipient of federal financial assistance by
virtue of the federal aid provided its students. Although
conceding that the effect of its assertion that Hillsdale
College itself is the relevant “education program or ac-
tivity” is to subject the entire College to regulation, HEW
contends that such a position is not institutional, since
it does not attempt to regulate programs not receiving
federal funds, as the original version of Title IX at-
tempted, but instead is programmatic, with the entire

financed by the Federal Government if a student-is_receiving
Federal aid to attend that program or those programs.

SEN. BAYH: You know, I just don’t know. I would have to
look that up if you like; perhaps you know. That is not gen-
erally the kind of penalties that are meted out, as I am sure
you realize.

REP. QUIE: But I have heard it claimed that that is one of
the reasons why they have jurisdiction.

SEN. BAYH: I have not.
Id. at 181.

18a

College constituting the relevant “education program.”
Hence it is necessary to determine whether Congress in-
tended entire educational institutions to be regulated un-
der the phrase “education program or activity.”

As previously noted, there is no explicit language in
Title IX which supports HEW’s position that an entire
institution can constitute an “education program or ac-
tivity.” See Rice v. President and Fellows of Harvard
College, supra. As noted by one commentator, the term
“program” was used in the Congressional debates pre-
ceding passage of Title IX “to refer not to the total pro-
gram of an educational institution but to smaller-scale
activities within the institution.” ** In Board of Public
Instruction V. Finch, 414 F.2d 1068 (5th Cir. 1969), the
Fifth Circuit similarly relied on the legislative history
of Title VI to reject HEW’s assertion that the term “pro-
gram” in Section 601 of Title VI, 42 U.S.C. § 2000d
(1976), referred to general categories such as “school
programs.” The Court in Finch instead equated “pro-
gram” with “federal grant statute,” relying on the man-
ner in which the term “program” was used during the
debates on Title VI.**

23 Comment, HEW's Regulation Under Title 1X of the Education
Amendments of 1972: Ultra Vires Challenges, 1976 B.Y.U.L.Rev.
133, 181 (citing 117 Cong.Rec. 39256 (1971) (Representative
Steiger); id. (Representative Waggonner); id. at 30406 (Senator
Dominick) ).

24 Comment, note 22 supra, at 181-182. The court cited the re-
peated references to particular federal programs in support of its
conclusion:

An even more substantial objection to HEW’s interpretation
of the term “program” is provided by the use of that term
during Congressional debates on the statute and by HEW’s
own use of the term in the administrative regulations issued
thereunder. In the Senate where the program limitation was
initiated, reference was frequently made to the school lunch
program, 110 Cong.Rec. 7101 (1964), to the agricultural exten-
sion program for home economics teachers, 110 Cong.Rec. 13126

19a

In short, we find that the legislative histories of Title
VI and Title IX reveal no indication that Congress con-
templated that an entire educational institution could
constitute a single “program or activity.” We further
find that the position asserted by HEW is inconsistent
with the program-specific nature of Title IX insofar as
its practical effect would be to circumvent the program-
matic focus of the statute and adopt the institutional
approach.

V. Case Law

The inconsistency between equating “educational in-
stitution” with “education program or activity” and the
program-specific nature of Title IX was discussed in
Bennett v. West Texas State University, 525 F.Supp. 77

(1964), to the farm-to-market road program, 110 Cong.Rec.
13331 (1964), to aid for vocational agriculture teaching, 110
Cong.Rec. 13126 (1964), and to aid to impacted school dis-
tricts, 110 Cong.Rec. 7100 and 13126 (1964). Senator Eastland
went so far as to introduce in the Congressional Record a long
list of the federal programs to which the cutoff provision was
applicable, 110 Cong.Rec. 8359-8361 (1964), as did Congress-
men Poff and Cramer in the House. 1964 U.S. Code Cong. &
Adm. News, pp. 2470-2473. HEW in issuing regulations to
implement the cutoff provision has followed a similar pro-
cedure. See 45 C.F.R. § 80.2 and 45 C.F.R. § 80.13, Appendix
A. All of these lists refer to particular grant statutes such as
those before us, not to a collective concept known as a school
program or a road program. Taken together they clearly con-
tradict the notion that Congress intended the collectivization
of all school subventions under the single rubric: “program or
part thereof.”

414 F.2d at 1077 (emphasis added). In Romeo Community Schools
v. United States Dept. of Health, Education, and Welfare, 438
F.Supp. 1021 (E.D.Mich. 1977), aff'd, 600 F.2d 581 (6th Cir.),
cert. denied, 444 U.S. 972 (1979), the district court relied on Finch
to reject HEW’s contention that the term “program or activity”
as used in Section 901 refers to the entire operation of the educa-
tional institution. 438 F.Supp. at 1033-1034 n. 18. The court
characterized the position of HEW as a “novel and protean inter-
pretation of a well-established statutory term... .” /d.

20a

(N.D. Tex. 1981), appeal docketed, No. 81-1398 (5th
Cir. Aug. 28, 1981). Bennett involved allegations by fe-
male students of West Texas State University that var-
ious policies and practices of the University discriminated
against women on the basis of sex by denying women
equal opportunities in the University’s intercollegiate
athletic program in violation of Title IX. The University
contended, and the district court held, that the regula-
tions exceeded the statutory authority granted under Title
IX to the extent they purported to apply to the Univer-
sity’s intercollegiate athletic program irrespective of the
absence of direct federal financial assistance to that spe-
cific program. 525 F.Supp. at 78-80.% In addition, the
district court held in Bennett that the University’s ath-
letic program did not receive direct federal financial as-
sistance by virtue of the fact that University students
received veterans’ benefits, BEOG grants, work study
money, and other federal financial aid. The plaintiffs’ ar-
gument, identical to the argument raised by HEW in
the instant case, was that the University’s athletic pro-
gram received federal financial assistance because the
University received tuition from students that was sup-
plied as grants or loans under the federal programs. The
court’s rationale for rejecting this argument is equally
applicable to the case at hand:

Plaintiffs’ argument that such aid constitutes a
direct benefit to the athletics programs is not well-
taken. Al] types of federal aid enumerated by the

25 See also Othen Vv. Ann Arbor School Bd., 507 F.Supp. 1376
(E.D. Mich. 1981), appeal docketed, No. 81-1259 (6th Cir. April 22,
1981) (Title IX applies only to the specific class of educational
program or activities which receive direct federal financial assist-
ance); cf. Haffer v. Temple University, 524 F.Supp. 531 (E.D.Pa.
1981), appeal docketed, No. 82-1049 (3rd Cir. Nov. 13, 1981)
(university’s intercollegiate athletic program, although not receiv-
ing federal funds directly, is subject to Title IX because the federal
funds received elsewhere in the institution indirectly assist the
athletic program).

2la

Plaintiffs are general and nonspecific, and such aid is
indirect by nature. The type of assistance relied on
by Plaintiffs results in some benefit, however remote
and indirect, to every program at West Texas State
University. Were the Court to adopt Plaintiffs’ argu-
ment, the programmatic construction of Title IX
would be rendered nugatory, because every program
or activity at the university would be subject to Title
1X. The Act itself compels a different conclusion.

Id. at 80-81 (emphasis added) .*° Under the position taken
by the plaintiffs in Bennett and HEW in the instant case,
every program or activity of an educational institution
that accepts students who receive federal financial as-
sistance would be subjected to regulation under Title IX.
If discrimination is found in a particular program or
activity of the institution, such as the athletic program
or the math department, the remedy, as sought in this
instance by HEW, would be to terminate all student fed-
eral financial assistance. For the reasons stated herein,
we find HEW’s position to be inconsistent with the
prograni-specific language of Sections 901 and 902 of Title
IX. We further find that, to the extent the regulations
adopt and effectuate HEW’s position, they are in excess of
statutory authority.

HEW and the Reviewing Authority rely primarily on
the case of Bob Jones University v. Johnson, 390 F.Supp.
597 (D.S.C. 1974), aff'd without opinion, 529 F.2d 514
(4th Cir. 1975) in support of their position.” The court

“6 The district court in Haffer, supra, reached the opposite con-
clusion, holding as an alternative basis for its decision that the
University’s athletic program received direct federal financial as-
sistance by virtue of (1) work study funds provided to students and
employees working in the athletic program, (2) BEOG, SEOG,
NDSL, GSL, and work study funds received by University inter-
collegiate athletes, and (3) federal funds provided to finance build-
ings used by the athletic program. 524 F.Supp. at 540.

27 HEW Secretary Weinberger indicated during the hearings on
the proposed regulations that the agency was “bound” by Bob Jones

22a

in Bob Jones, as previously noted, equated the statutory
phrase “program or activity” found in Title VI with the
entire University in holding that the veterans’ benefits re-
ceived by students at the University were “specifically tied
to the beneficiary’s participation in an educational pro-
gram or activity.” 396 F.Supp. at 602. As a result, the
order of the Veterans Administration terminating the
right of eligible veterans seeking education at Bob Jones
University to receive veterans’ benefits was affirmed.

We decline to follow the language in Bob Jones that an
entire institution may be deemed the relevant “program
or activity” to the extent that the language would pur-
port to cover the circumstances of the case at hand. Two
peculiar features of Bob Jones make it distinguishable
from the instant case.

One factual disténction of Bob Jones is that it involved
an admittedly discriminatory admission policy which
served to deny entrance to the University to unmarried
nonwhites. In Othen v. Ann Arbor School Bd., 507
F.Supp. 13876 (E.D. Mich. 1981), appeal docketed, No.
81-1259 (6th Cir. April 22, 1981), the district court found
that the court in Bob Jones did not have to decide which
University programs or activities were racially dis-
criminatory because the University’s admissions policy
“tainted” all programs:

Racial discrimination respecting acceptance or ad-
mission into educational institutions permeates all
programs and activities within those institutions.
Once racially discriminatory admission policies have
been found to exist, the taint of racial discrimination
affects all programs and activities within the par-
ticular institution. Therefore, the courts which have
decided suits brought under Title VI did not have to

and its interpertation that student assistance constitutes federal
financial assistance to the programs of an institution. Hearings on
Title 1X, note 22 supra, at 481-482.

23a

carefully focus upon the institutional /programmatic
conflict which is now squarely before this court.

507 F.Supp. at 1387.°* In contrast, HEW argues here
that the programs and activities of Hillsdale College may
be subjected to Title IX because student federal financial
assistance is to pay tuition, which in turn flows to all op-
erations of the College. There is no allegation that the
admissions policy at Hillsdale discriminates on the basis
of sex; in fact, there is no allegation that Hillsdale has
discriminated on the basis of.sex in any manner.

A second feature of Bob Jones which distinguishes it
from the present case concerns the constitutional di-
mension of the decision. The court, after noting that
“lelach time the VA approves an application for bene-
fits to be used at Bob Jones, it extends a benefit to whites
which it cannot grant to some blacks,” held that “the fed-
eral government cannot, consistent with the Due Process
Clause of the Fifth Amendment, provide direct grants-
in-aid to public or private entities which discriminate on
the basis of race... .’’ 396 F.Supp. at 608 (emphasis in
original). Hence the decision in Bob Jones may fairly be
read to have a constitutional underpinning above and be-
yond its statutory basis. See Othen, supra, at 13889. The
position of HEW in the present case, in contrast, must
rest on the statutory language of Title IX.

In Grove City College v. Bell, F.2d —— (No. 80-
2383, 3rd Cir., August 12, 1982), which raised the same
issue as that presented here, the majority of the panel
held that under Title IX the entire college is a “program”
and that, by virtue of the receipt by students of federal
loans and grants which benefits the college, the college
may properly be required to execute an Assurance of
Compliance. This opinion relies in substantial measure on

28Cf. Haffer, supra, at 539 (disagrees with Othen that Title VI
discriminatory admissions cases did not have the institutional/
programmatic dichotomy squarely at issue).

24a

post-enactment legislative history. We disagree with the
holding in Grove City for the reasons heretofore indicated.
On the contrary, we are of the view that the “program,”
within the meaning of Title IX, is the federal] loan and
grant program for students. The reasoning of the ma-
jority in Grove City would equally apply if the federal
government subsidized the athletic program at a college
allowing the college to use gate receipts to, for example,
supplement faculty salaries and to create scholarships.
We do not believe that Congress intended, in enacting
Title IX, to authorize HEW pervasively to regulate entire
colleges and universities because federa] money benefits
the entire institution.” Under the majority opinion in
Grove City, the “program-specific” limitation set out by
the Supreme Court in North Haven loses all of its practical
meaning.

The concurring judge (Judge Becker) in Grove City
thought that the majority opinion was too broadly based,
contending that the only issue vresented was whether the
college could be required to execute the Assurance of Com-
pliance. Judge Becker then asserts that the Assurance is
itself program-specific, as is required by North Haven,
because it applies, by its terms, only to an education pro-
gram or activity for which the applicant receives or
benefits from federa] financial assistance. (Slip op. at
45). Thus Judge Becker concludes that the regulation

7 The regulations specify, in part, the high schools where Hills-
dale may recruit students for admission (34 C.F.R. § 106.23), the
literature that Hillsdale may provide to the students about the
college (34 C.F.R. § 106.9), the tests which Hillsdale may require
the students to take as a condition of admission (34 C.F.R. § 106.21
(2)), how Hillsdale may use its own funds to aid the students (34
C.F.R. § 106.37), the students’ access to course offerings (34 C.F.R.
§ 106.34), the manner in which the student is housed, whether on
or off campus (34 C.F.R. § 106.82), the health services provided to
students (34 C.F.R. § 106.39), the students’ extracurricular activi-
ties (34 C.F.R. § 106.31(a)) and student athletic participation (34
C.F.R. § 106.41).

25a

requiring the Assurance is valid because the Assurance
is limited to programs receiving benefits from the fed-
eral government. The difficulty with Judge Becker’s view
is that it is HEW’s very position that the entire college is
a program and that by executing the Assurance, the col-
lege agrees to comply with regulations as they apply to
the entire institution. Simply stated, it appears to us that
it would be anomalous to hold that the college may be
required to execute the Assurance because it is so limited
by its terms when HEW construes the Assurance and its
regulations to apply to the college as an institution, a
position that is, in our view, not supportable under Title
IX.

VI. CONCLUSION
We agree with Hillsdale in part and HEW in part.

1. We agree with HEW that funds may be cut off
without a finding that a college is actually discriminating
on the basis of sex. Section 902 authorizes HEW to issue
regulations to effectuate section 901 and further provides
that compliance with the regulations may be enforced by
cutting off of federal funds. The statute does not provide
that funds may be cut off only upon a finding of actual
discrimination.

2. We further agree with HEW that Hillsdale isa “re-
cipient” within the meaning of section 901 and that, pro-
vided that the “program-specific” limitation in Title IX is
met, it is subject to regulation. ~

8. We agree with Hillsdale’s alternative contention
that the entire college, as an institution, is not a “pro-
gram” within the meaning of Title IX and that the “pro-
gram” involved here is the student loan and grant pro-
gram. Thus we agree that only the student loan and grant
program is subject to Title IX regulation.

4. We agree with Hillsdale that the regulation re-
quiring it to execute the Assurance of Compliance as a

26a

condition for its students receiving loans and grants is,
as it is applied here, an invalid regulation. This is true
because the regulation and the Assurance, as interpreted
and applied by HEW, cover the entire college and are
not limited to the student loan and grant program.

For reasons stated herein it is ORDERED that the
reviewing authority’s order be and the same is hereby
Reversed.

27a

Epwarps, Chief Circuit Judge. Respectfuly, I dissent.
This case involves interpretation of one of two principal
pieces of legislation' which Congress has yet adopted in
order to grant equal riglis to women. I would not give
it the very narrow interpretation which is to be found in
the majority opinion.

There is, of course, no doubt that reluctance (or worse)
in interpretation of both constitution and law has greeted
efforts to achieve equa! rights for women throughout the
history of this nation. Yet in this statute, Congress clearly
intended to turn its back on that discreditable past.
And in two important cases, the Supreme Court (by
breadth of interpretation of Title IX) and the Third Cir-
cuit (in a decision directly on point) have done likewise.
North Haven Bd. of Educ. v. Bell, 456 U.S. 102 S.Ct.
1912, 72 L.Ed. 299 (1982); Grove City College v. Bell,
687 F.2d 689 (3rd Cir, 1982). I regret that my colleagues
elect not to follow these cases.

Equality of all “citizens” or “persons” before the law
is one of the main themes of the Constitution of the
United States. It has, however, taken a long time in the
history of this country for women to be recognized as
either “persons” or “citizens” in a constitutional and legal
sense, And indeed that recognition is still not as com-
plete in Supreme Court case law as it is in the case of
black males.

Prior to the adoption of the Constitution, Abigail
Adams in 1777 wrote to her husband John:

In the new code of laws which I suppose it will be
necessary for you to make, I desire you would re-
member the ladies and be more generous and favor-
able to them than your ancestors. Do not put such

1 Directly involved is Title IX, 20 U.S.C. § 1681-86 (1978). The
other Act is Title VII, Equal Employment Opportunity Act, 42
U.S.C. §§ 2000(e) et seq. (1981). See also the Equal Pay Act of
1963, 29 U.S.C. § 206(d) (1978).

28a

unlimited power into the hands of the husbands.
Remember, all men would be tyrants if they could.
If particular care and attention is not paid to the
ladies, we are determined to foment a rebellion, and
will not hold ourselves bound by any laws in which
we have no voice or representation.

E. Flexner, Century of Struggle 15 (1974) quoting
Adams, Familiar Letters, 149050. In the original Con-
stitution, adopted at Philadelphia and ratified in 1787,
Article IV, § 2, Clause 1 reads “the citizens of each state
shall be entitled to all the privileges and immunities of
citizens in the several states.” Despite Abigail’s en-
treaties, however, the “ladies” went unremembered. Just
as blacks of that day whether freed or slave were not
considered citizens for purpose of that grant of equality,
so too, by common understanding, were women excluded,
albeit, not by any specific constitutional language. When
_ four years later the new country enacted Amendment V
of the Bill of Rights, it decreed as to all persons in the
nation “no person shal] be deprived of life, liberty or
property without the due process of law.” While the
rights of women to due process of law in matters involv-
ing charges of crime or cases involving disputes over
property were gradually established (largely as a result
of the common laws’ impact on the laws of the various
states) they were still not considered “persons” or “‘citi-
zens” in a full constitutional sense.

Women were called “persons” and “citizens” by the
Court, but they were still not afforded full constitutional
rights, particularly political rights, belonging to male
persons or male citizens. For example the Dred Scott
decision described the woman as “citizen” and referred
to her as a person but treated her as a political eunuch.
In the words of that Court, “Undoubtedly, a person may
be a citizen, that is a member of the community who
form the sovereignty although he exercises no share of the
political power, and is incapacitated from holding par-

29a

ticular offices. Women and minors, who form a part of
the political family cannot vote... yet they are citizens.”
Dred Scott v. Sandford, 60 U.S. (19 How.) 393, 422
(1856).

In 1868, after the dreadful conflict of the Civil War
and after the abolition of slavery, the fourteenth amend-
ment was adopted and ratified. It read:

All persons born or naturalized in the United States
and subject to the jurisdiction thereof are citizens of
the United States and of the state wherein they re-
side. No state shall make or enforce any law which
shall abridge the privileges and immunities of any
citizen of the United States nor shall any state de
prive any person of life, liberty or property without
due process of law, nor deny to any person within
its jurisdiction, the egual protection of the laws.”
U.S. Constitution, Amendment XIV, §1 (Emphasis
added).

On the face of this amendment, it would seem logical
that women born or naturalized in the United States,
were by virtue of the fourteenth amendment, citizens of
the United States and of the states wherein they reside
and consequently, that they could not be denied the equal
protection of the laws.

Perhaps the most fundamental of the laws, however,
were those which gave citizens the right to vote, yet the
Supreme Court in 1874 had no trouble saying that no por-
tion of the fourteenth amendment served to extend voting
rights to women since they had never before had them.
Minor Vv. Happersett, 88 U.S. (21 Wall.) 162 (1874). Of
course the fourteenth amendment could likewise have been
regarded as a grant of voting rights to the freed slaves.
But that proposition seems to have been so far from public
consciousness that in 1870 the fifteenth amendment was
drafted and ratified in order specifically to accomplish
that objective as to black males. The fifteenth amend-

30a

ment reads: “The right of citizens of the United States
to vote shall not be denied or abridged by the United
States or by any state on account of race, color or pre
vious condition of servitude.” Efforts to add “sex” as a
forbidden basis for exclusion from the right to vote were
brushed aside, and the fifteenth amendment made no
reference to any rights that women, black or white, might
have.

In fact women were denied the right to vote in both
local, state and national election until the great women’s
suffrage movement secured another constitutional amend-
ment.? It was adopted and ratified in 1920. The nine-
teenth amendment reads: “The right of citizens of the
United States to vote shall not be denied or abridged by
the United States or by any State on account of sex.”

The Constitutional Convention and the Congresses in-
volved in these enactments were, of course, markedly
male. So, too, was the Supreme Court until] 1981 when
Justice Sandra Day O’Connor was sworn in. As stated
earlier although Supreme Court theory recognized women
as “persons” and “citizens” its early decisions did not
give that recognition much effect.

In Bradwell v. Illinois, 83 U.S. (16 Wall.) 130 (1873),
the Supreme Court held that Illinois could deny Bradwell
the right to practice law solely because she was a woman.
In Minor v. Happersett, 88 U.S. (21 Wall.) 162 (1874),
the Supreme Court held that the states could deny women
the right to vote. In Goessart v. Cleary, 335 U.S. 464,
the Supreme Court held Michigan could prohibit employ-
ment of women as bartenders. In Hoyt v. Florida, 368
U.S. 57 (1961), the Supreme Court held that Florida
could exclude women from jury service unless (unlike
men}, they voluntarily registered their availability.

In recent years a trend in the direction of equal rights
for women has been recorded. Congress in 1964 adopted

2 E. FLEXNER, CENTURY OF STRUGGLE (1974).

3la

Title VII designed to give women equal employment op-
portunities. In 1972 it adopted the statute currently be-
fore us designed to give women equal educational oppor-
tunities.

In recent years also the Supreme Court’s attitude
toward women’s rights to equality before the law has al-
tered. In Reed v. Reed, 404 U.S. 71 (1971), the Supreme
Court held that state laws could not prefer males over
equally qualified females for the position of administrator
of a decedent’s estate. In Frontiero v. Richardson, 411
U.S. 677 (1973), the Court * held that a female member
of the military could not be denied the fringe benefits of
housing alowance and medical benefits for her spouse
given to male soldiers. In Cleveland Bd of Educ. V.
LaFleur, 414 U.S. 632 (1974), the Court * held that preg-
nant public school teachers could not be forced out of
work at a fixed stage of pregnancy well in advance of
terns, nor be forced to wait to return to the jobs until a
fixed period had elapsed. In Taylor v. Louisiana, 419 US.
552 (1975), the Court held that laws which exclude
women from jury service were invalid. In Orr v. Orr, 440
U.S. 268 (1979), the Court held that a statutory scheme
providing husbands but not wives may be required to pay
alimony was unconstitutionally discriminatory. These ex-
amples of recent cases seem to make it clear that govern-
mental authority may no longer be used to accord women
the inferior status they held under common law and past
constitutional interpretation.*

2In the Frontiero decision the four-vote plurality opinion de-
clared that gender based classifig@sions were “inherently suspect”
and therefore subject to “strict judicial scrutiny.” 411 U.S. at 682.
This standard of review, however, has not yet received the fifth
vote.

4 Justice Stewart’s opinion for the Court granted relief not on
an equal protection basis but rather on due process grounds.

5In a series of articles Ruth Rader Ginsberg has succinctly de-
lineated the constitutional evolution of the equality principle as

82a

This thumbnail sketch of women’s battle for equality be-
fore the law of this country from Abigail Adams to
Sandra O’Connor is designed to point out that women’s
rights to equal treatment under the Constitution of the
United States are long overdue. When a heavily male
dominated Congress finally came around to adopting two
important pieces of legislation obviously designed to give
women equal rights in education and employment, one of
which is before this Court in this case, it ill-behooves the
courts to approach such overdue remedial legislation with
hostility.

Turning directly to this case, the key sentence of Title
IX of the Education Amendments of 1972, 20 U.S.C.
§ 1681-86 is: “No person in the United States shall, on
the basis of sex, be excluded from participation in, denied
the benefits of, or be subjected to discrimination under
any education program or activity receiving federal finan-
cial assistance... .”

It should be noted at the outset that no charge that
Hillsdale has actually discriminated against women is
involved in this case. Hillsdale has simply refused to state
that it will follow the law set forth above.

Since I agree with two of Judge Brown’s conclusions for
the reasons stated in his opinion, I can shorten this dis-
sent. My concurrence runs to the following declaration of
the majority:

1. We agree with HEW that funds may be cut off
without a finding that a college is actually discrimi-
nating on the basis of sex. Section 902 authorizes
HEW to issue regulations to effectuate section 901

applied to women while commenting upon gender protectionism.
Sez Equality Under the Fourteenth Amendment and the Equal
Rights Amendment, 1979 Wash. U.L.Q. 161 (1979); Sex Equality
and the Constitution, 52 Tul. L. Rev. 451 (1978); Benign Classifi-
cation in the Contert of Sex Discrimination, 10 Conn. L. Rev. 813
(1978) ; Gender and the Constitution, 44 Cin. L. Rev. 1 (1975).

33a

and further provides that compliance with the reg-
ulations may be enforced by cutting off federal funds.
The statute does not provide that funds may be cut
off only upon a finding of actual discrimination.

2. We further agree with HEW that Hillsdale is
a “recipient” within the meaning of section 901 and
that .. it is subject to regulation.

As to the following conclusions of Judge Brown, I am
in disagreement:

3. We agree with Hillsdale’s alternative conten-
tion that the entire college, as an institution, is not a
“nrogram” within the meaning of Title IX and that
the “program” involved here is the student loan and
grant program. Thus, we agree that only the stu-
dent loan and grant program is subject to Title IX
regulation.

4. We agree with Hillsdale that the regulation re-
quiring it to execute the Assurance of Compliance as
a condition for its students receiving loans and
grants is, as it is applied here, an invalid regulation.
This is true because the regulation and the Assur-
ance, as interpreted and applied by HEW, cover the
entire college and are not limited to the student loan
and grant program.

Educational! Activities as a Title IX “Program”

Federa] funding which is involved in this appeal con-
sists of the receipt by Hillsdale of funds for the operation
of the college from student fees paid as a result of four
separate federal grant programs. These are the National
Direct Student Loan Program, hereinafter to be referred
to as NDSL, 20 U.S.C. § 1087aa et seq.; the basic Educa-
tional Opportunity Grant Program, hereinafter BEOG,
20 U.S.C. $1070; the Supplemental Educational] Oppor-
tunity Grant Program, hereinafter SEOG; 20 U.S.C.
1070(b) and the Guaranteed Student Loan Program, here-

1

4

84a

inafter GSL; 20 U.S.C. § 1071 et seg. Under two of these
programs, NDSL and SEOG, the Department provides
funds directly to Hillsdale College. The College then dis-
tributes the funds in the form of scholarships to qualified
students. Portions of or all of such scholarship funds are
then paid to the College by the students as tuition, room
and board, ete. Under the BEOG Program, HEW funds
are provided directly to eligible students and are sub-
sequently paid to Hillsdale for tuition, room and board,
etc. The GSL Program is distinct from the other three.
Under it, students apply for low-interest loans from pri-
vate lending institutions. The loans are guaranteed in
whole or in part by the United States Government which
pays interest on the loans throughout the student’s edu-
cation.*

All of the programs referred to above require that Hills-
dale certify that the student who is the ultimate recipient
is enrolled in college. Under two of the programs, NDSL
and SEOG, HEW pays the funds directly to Hillsdale
which then distributes the federal subsidies to qualified
students. Under BEOG, HEW funds are provided directly
to eligible students who in turn use them to defray their
college expenses. HEW advises that in the year ending
June 30, 1978 approximately one-fourth of the Hillsdale
student body received aid under these various programs.

It seems clear to me that each of these programs pro-
vides funds which when paid to the college are used for
the general support of the educational program of the
college as a whole.

Section 168l(a) of Title IX provides as follows: “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 educational

*Since § 1685 of the statute exempts from remedy programs
affected by “contract of insurance” or “guaranty,” this opinion does
not rely upon the GSL funding in affirming the Secretary.

35a

program or activity receiving Federal financial assistance

. .’ Under the circumstances outlined above, it seems
obvious to me that Congress intended for its prohibition on
sex discrimination to apply to a college like Hillsdale when
it was “receiving Federal financial assistance” in the
fashion Hillsdale is receiving such.

In the recent decision by the Supreme Court in North
Haven Bd. of Educ. v. Bell, supra, the Supreme Court of
the United States held that discrimination against female
employees of a school receiving federal funds was barred.
The critical language of Justice Blackmun’s opinion for
a total of six justices of the Supreme Court bears quota-
tion at this point:

Our starting point in determining the scope of
Title IX is, of course, the statutory language. See
Greyhound Corp. v. Mt. Hodo Stages, 437 US 322,
330, 57 L.Ed 2d 239, 98 S.Ct. 2370 (1978). Section
901(a)’s broad directive that “‘no person” may be dis-
criminated against on the basis of gender appears on
its face to include employees as well as students.
Under that provision, employees, like other “persons,”
may not be “excluded from participation in,” “de-
nied the benefits of,” or “subjected to discrimination
under” education programs receiving federal finan-
cial support.

Employees who directly participate in federal pro-
grams or who directly benefit from federal grants,
loans, or contracts clearly fall within the first two
protective categories described in §901l(a). See
Isleboro School Comm. v. Califano, 593 F. 2d 424, 426
(CA1), cert. denied, 444 U.S. 972 (1979). In addi-
tion, a female employee who works in a federally
funded education program is “subjected to discrimi-
nation under” that program if she is paid a lower sal-
ary for like work, given less opportunity for promo-
tion, or forced to work under more adverse conditions
than are her male colleagues. See Dougherty Cty.

36a

School System v. Harris, 622 F. 2d 735, 737-738
(CA 5 1980), cert. pending sub nom. Bell v. Dough-
erty Cty. School System, No. 80-1023.

There is no doubt that “if we are to give [Title
IX] the scope that its origins dictate, we must ac-
cord it a sweep as broad as its language.” United
States v. Price, 383 U.S. 787, 801 (1966); see also
Griffin v. Breckenridge, 403 U.S. 88, 97 (1971);
Daniel v. Paul, 395 U.S. 298, 307-308 (1969); Jones
v. Alfred H. Mayer Co., 392 U.S. 409, 437 (1968) ;
Piedmont & Norther Ry. v. ICC, 286 U.S. 299, 311-
312 (1932). Because § 901(a) neither expressly nor
impliedly excludes employees from its reach, we
should interpret the provision as covering and pro-
tecting these “persons” unless other considerations
counsel to the contrary. After all, Congress easily
could have substituted “student” or “beneficiary” for
the word “person” if it had wished to restrict the
scope of § 901(a). (Emphasis added).

North Haven Bd. of Educ. v. Bell, 102 S.Ct. 1912, 1917-
18 (1982).

It seems obvious to me that the Supreme Court’s opin-
ion quoted above directly rejects Judge Brown’s conclu-
sion in this ease that the prohibition of sex discrimination
in the statute is 1) solely directed at the financial grant
programs and 2) cannot properly be applied to prohibit
sex discrimination in the entire educational institution.
Clearly the court’s application of the sex discrimination
tan to all employees of the school (including those not di-
rectly involved in the educationa] process) * was a much

* Before terminating this discussion of the impact of North
Haven upon our instant case, I would point out (as did the dissenter
in that case) that the majority opinion swept broadly enough to
include within those employees of the college as to whom discrimi-
nation on the basis of geuder was prohibited, not only teachers and
administrators who were immediate participants in the educational
process but also employes like secretaries and janitors who were

37a

wider interpretation of the statute than HEW has fol-
lowed in our instant case.

The majority opinion continued to find in the broad
language of the sponsors of Title IX support for includ-
ing employee discrimination within Title IX’s prohibition
of sex discrimination in educational activities. Without
repeating the Court’s legislative history or its postenact-
ment history, I incorporate Sections B and C of the ma-
jority opinion by reference and rely upon the majority’s
obvious inclination to give the statute its full intended
effect.

I now turn to the Third Circuit’s treatment of the
identical problem which we face in our instant case.
There, as here, the educational] institution concerned ob-
jected vigorously to any “generalized nonprogrammatic,
or institutional basis’ for Title IX application. Judge
Garth’s opinion, with which I am in complete agreement,
dealt with the “program-specific’” argument which my col-
leagues emphasize by adopting the -response filed by the
American Association of University Women: _

However the Supreme Court ultimately defines
“program”, it cannot conclude that the more general
the scope and purpose of the funding, the more re-
strictive the coverage of this remedial civil] rights
statute will be. That result would be logically incon-
sistent. Yet Grove City asks this court to decide that
an institution whose entire purpose is educational is
exempt from coverage when it is financed with fed-
eral funds that can be used for virtually any educa-
tional purpose instead of a clearly limited function.
The absurd result if this approach is followed to its
logical conclusion is that general] higher education aid
would never bring the college under Title IX cover-
age because no specific program within the College

neither direct participants in the educational process nor recipients
thereof. 102 S.Ct. at 1928 (Powell, J., dissenting).

38a

would be earmarked to benefit from the federal

funding.
Grove City College v. Bell, 687 F.2d 684, 698 (3d Cir.
1982).
* In addition Judge Garth quoted another commentator to
support his result:

[I]f two programs, one receiving federal aid di-
rectly and one not, are both administered by the same
local agency for the education of essentially the same
group of students, and if the funding of the former
facilitates the latter by freeing funds for its use, or
if discrimination in the latter affects the former by
inhibiting or prohibiting a student’s participation in
that program, then both will be considered part of the
same program for purposes of bringing the latter
within the reach of Title IX.

Grove City College v. Bell, 687 F.2d 684, 698-99 (1982),
quoting Todd, Title 1X of the 1972 Education Amend-
ments: Preventing Sex Discrimination in Public Schools,
55 Texas L.Rev. 103, 112 (1974).

Judge Garth concluded his discussion of the ‘program
specific” issue in the following manner:

Where the federal government furnishes indirect or
non-earmarked aid to an institution, it is apparent to
us that the institution itself must be the “program.”
Were it otherwise, and if it had to be demonstrated
that each individual component of an integrated edu-
cational institution had in fact received the particu-
lar monies for a particular purpose, no termination
sanction could ever effectively be imposed.

We conclude that the remedy to be ordered for
failure to comply with Title IX is as extensive as
the program benefited by the federa] funds involved.
Because the federal grants made to Grove’s students
necessarily inure to the benefit of the entire College,

89a

the “program” here must be defined as the entire in-
stitution of Grove City College. Thus, Grove is incor-
rect in claiming that the program-specific provisions
of the statute preclude Title IX coverage when in-
direct aid is involved.

Grove City College v. Bell, 687 F.2d 684, 700-01 (3d Cir.
1982).

There is no reason why the government of the United
States should grant money to colleges which refuse to cer-
tify that they intend in using those funds to obey the
laws of this country prohibiting discrimination against
females. Hillsdale College, has, of course, a right to re-
fuse to sign such a certificate. But equally clearly Hills-
dale should have no right to relief in the federal courts to
secure federal financing of its general educational pro-
gram where it refuses to indicate, as required, that it
will comply with federa] Title IX mandates.

Title IX and Title VII are closely related statutes de-
signed to give broad equal protection rights which a long
history of discrimination has denied to women and mi-
norities. The enactment of Title IX in 1972 forbidding
discrimination against women in education was patterned
after Title VI of the Civil Rights Act of 1964 which pro-
scribed discrimination in any federally assisted program
on the basis of race, color, or national origin; both stat-
utes have parallel prohibitions and identical enforcement
mechanisms similarly described.* In fact, “the drafters of
Title IX explicitly assumed that it would be interpreted
and applied as Title VI has been during the preceding
eight years.” Cannon v. University of Chicago, 441 U.S.
677, 696 (1979). Moreover the goals to which the stat-
utes aspire are indeed similar. “Title IX, like its model
Title VI, sought to accomplish two related, but neverthe-

*Compare 20 U.S.C. $$ 1681-82 (Title IX) with 42 U.S.C.
§§ 2000(d)-(d) (1). (Title VI).

40a

less somewhat different objectives. First, Congress wanted
to avoid the use of federal resources to support discrimi-
natory practices; second, it wanted to provide individual
citizens effective protection against those practices.” Jd.
at 704. Thus, as a final argument for an interpretation
of the important statute before us that would not annul
its broad nondiscriminatory purposes, the words of Sen-
ator Humphrey, one of the Senate sponsors of Title VI,
as quoted by the Supreme Court, are apposite, substituting
only the word sex for the word race.

Simple justice requires that public funds, to which all
taxpayers of [both sexes] contribute, not be spent in
any fashion which encourages, entrenches, subsi-
dizes or results in [sex] discrimination.

Lau Vv. Nichols, 414 U.S. 563, 569 (1974).

Simple justice, recognition of Title IX’s basic and
broad remedial purpose and the other foregoing reasons
dictate that I dissent from my colleagues’ disturbingly
narrow interpretation of this remedial statute. I would
affirm the constitutionality of Title IX as applied in this
case and the legality of the regulations issued by HEW
which are in dispute.

If I were writing for the majority of this court, I
would also remand to the agency for careful considera-
tion of the timing of its order cutting off funds. Accord-
ingly I suggest fund termination that will not affect stu-
dents presently enrolled but only those who may enter in
the future. At issue in this regard could be severe im-
pact upon the education of students who are in any way
responsible for this controversy. Additionally it may well
be that the college itself will see fit to comply with the
agency’s regulation at the beginning of the school year
after the regulation’s legality and constitutionality are
completely established.

This less harsh prospective remedy appears to be con-
sistent with the Title IX statutory scheme. Indeed, the

4la

remedies portion of the Act, Section 902, 20 U.S.C. § 1684
(1976), provides that compliance with the statute “may
be effected” by termination of funding or “by any other
means authorized by law.” (emphasis added). Agency
adoption of the suggested equitable remedy would be one
which is “authorized by law” and would fall within the
permissive grant of authority to fashion remedies. This
conclusion is buttressed by the Supreme Court’s observa-
tion in Cannon v. University of Chicago, 441 U.S. 677,
704-05 n.n. 38 & 39 (1979), that Congress intended the
use of measures less severe than total fund cutoff where
the statutory objectives of Title IX could be furthered by
less heroic means.

42a

[JUDGMENT OF THE UNITED STATES COURT OF
APPEALS FOR THE SIXTH CIRCUIT)

UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT

No. 80-3207
[Filed Dec. 16, 1982]

HILLSDALE COLLEGE,

wo. Petitioner,

THE DEPARTMENT OF EDUCATION:
SHIRLEY M. HUFSTEDLER, SECRETARY,
Respondents.

Before: Epwarps, Chief Circuit Judge; CECIL and
Brown, Senior Circuit Judges.

JUDGMENT

ON PETITION TO REVIEW a decision of the De
partment of Education.

THIS CAUSE came on to be heard on the transcript of
record from the said Agency and was argued by counsel.

ON CONSIDERATION WHEREOF, It is now here
ordered and adjudged by this court that the decision of
the said Agency in this cause be and the same is hereby
reversed.

Each party to bear its own costs on this appeal.
ENTERED BY ORDER OF THE COURT

JOHN P. HEHMAN
Clerk

/s/ John P. Hehman
Clerk

43a
APPENDIX B

ADMINISTRATIVE PROCEEDING
IN THE
DEPARTMENT OF HEALTH,
EDUCATION, AND WELFARE

Docket No. A-7 <i

IN THE MATTER OF HILLSDALE COLLEGE
and
STATE OF MICHIGAN

FINAL DECISION OF THE
REViE WING AUTHORITY
(CIVIL RIGHTS)

|Dated: October 25, 1979]

STATEMENT OF THE CASE

This administrative enforcement proceeding was insti-
tuted by the United States Department of Health, Educa-
tion, and Welfare ‘hereinafter referred to as the Depart-
ment) against Hillsdale College pursuant to Title IX of
the Education Amendments of 1972, 20 U.S.C. §§ 1681
et seq., and the regulations issued thereunder, 45 C.F.R.
§ 86.1 et seq.

The proceeding was initiated on December 2, 1977, by
serving a Notice of Opportunity for Hearing on Hillsdale
College (hereinafter referred to as the Respondent), a
private, nonsectarian, coeducational college, and the State
of Michigan. The Notice of Opportunity for Hearing al-
leged that the Respondent was not in compliance with

44a

Title IX and its implementing regulation, 45 C.F.R.
$ 86.4, which requires applicants for federal] financial as-
sistance to submit to the Department an Assurance of
Compliance.' The Respondent filed an answer admitting
its refusal to sign an Assurance of Compliance, but deny-
ing that the Department has the authority to require it
to execute such Assurance.

Hillsdale College has an enrollment of approximately
1,000 students. A number of these students have obtained
funds to pay some of their educational costs at Hillsdale
College under one or more of the four following federally-
funded programs: The National Direct Student Loan
Program ‘NDSL), 20 U.S.C. §§ 1087aa et seg.; the Basic
Educational Opportunity Grant (BEOG) and Supple-
mental Educational Opportunity Grant (SEOG) Pro
grams, 20 U.S.C. §1070a and b; and the Guaranteed
Student Loan Program (GSL), 20 U.S.C. § 1071 et seg.

Under the NDSL Program, loans are made by the Re-
spondent to students on the basis of need as determined
by the requirements specified in the statute and regula-
tions. NDSL funds are loaned to students to pay for the
costs of their education at Hillsdale by direct payment
either to the Respondent or to private vendors for books,
housing, ete. Under the BEOG Program, students receive
grants directly from the federa] government for use in
defraying educational costs by direct payment to the Re-
spondent or to private vendors. Under the SEOG Pro-
gram, federal funds are allocated to the Respondent by
the Department which in turn are administered by the
Respondent and awarded on the basis of need as deter-
mined by the requirements specified in the statute and
regulations. These grants are then used by the students
to defray the costs of their education by direct payment
to the Respondent or to private vendors. Under the GSL
Program, students apply to a private lending institution

?HEW Form 639A.

45a

for funds which then makes personal loans from its own
assets or resources to be used by students to defray their
educational costs by payments to the Respondent or to
private vendors. These loans are guaranteed by the
United States and a portion of the interest is paid by the
government while the students are in college.

Neither Hillsdale College nor its students participate
in other programs or activities which are funded, in
whole or in part, by the federal government.

Section 86.4 of the regulations implementing Title IX
requires every application for federal financial assistance
to be accompanied by an Assurance of Compliance with
Title IX and its regulations. On several occasions in 1977
the Director of the Office for Civil Rights requested in
writing that Hillsdale College submit an executed Assur-
ance of Compliance form. The Respondent has refused to
file this Assurance ‘(HEW Form 639 A) and has indi-
cated that it has no intention of doing so in the future.

Pending a final order of termination in the instant pro-
ceeding, students are able to secure loans from funds in
the Respondent’s NDSL Program, grants under the
BEOG Program, and loans from private lenders under the
GSL Program to defray the costs of their education at the
College.

The Genera] Counsel for the Department brought this
compliance proceeding, seeking an order pursuant to 45
C.F.R. § 80.10 which would terminate, refuse to grant or
to continue, and find the Respondent ineligible to receive
federa] financial assistance which is administered by the
Department to the Respondent.*

On August 23, 1978, the Administrative Law Judge
(hereinafter referred to as Judge! issued his Initial De-
cision denying the relief requested by the General Coun-

2 Notice of Hearing at 6-7, Jn the Matter of Hillsdale College
Docket No. A-7 (Filed December 2, 1977).

46a

sel and dismissing the Notice of Hearing. The Judge con-
cluded that although the Respondent was a recipient of
federal financial assistance within the meaning of Title
IX, the Department’s requirement that the Respondent
sign the Assurance of Compliance as a condition of the
continued receipt of federal financial assistance was a
demand that the Respondent comply with a portion of the
regulations—i.e., those prohibiting sex discrimination in
employment—which were declared invalid in whole or in
part by several courts. Thus the Judge refused to termi-
nate federal financial assistance on the ground that to do
so would be arbitrary, capricious, and an abuse of dis-
cretion, in view of the doubt cast on the Department’s au-
thority under Title IX to require compliance with those
regulations dealing with employment.

Both the General Counsel for the Department of Health,
Education, and Welfare and the Respondent have filed
Exceptions to the Administrative Law Judge’s Initial
Decision.

Respondent’s Exceptions

I.

Hillsdale excepts to the ruling by the Administrative
Law Judge that the Title IX regulations which deem
Hillsdale College a recipient of federal financial assistance

*45 C.F.R. §§ 86.51-86.61. The cases cited by the Administrative
Law Judge were Board of Education of the Bowling Green City
School District v. United States Department of Health, Education
and Welfare, No. C-78-177 (N.D. Ohio, May 5, 1978) (preliminary
injunction against enforcement issued); Brunswick School Board
v. Califano, 449 F.Supp. 866 (D.Me. 1978); Seattle University r.
HEW, No. C-77-6315 (W.D. Wash., January 20, 1978); Romeo
Community Schools v. United States Department of Health, Educa-
tion and Welfare, 438 F.Supp. 1021 (E.D. Mich. 1977), appeal
docketed. These cases all hold that the regulation is invalid because
the statute from which it is derived, the Education Amendments
of 1972, §§ 901 et seq. is limited to a prohibition of sex discrimina-
tion against students and other direct beneficiaries of federal aid
and does not cover discriminatory employment practices.

47a

are not in excess of the statutory authority granted HEW
by Congress.

The Exception is denied.

The Respondent argued that it is not subject to Title
IX because it is not a recipient of federal financial as-
sistance. However, as the Judge correctly noted, the Re-
spondent participates both as the initial and final re-
cipient of federal funds through its involvement in sev-
eral student financial aid programs funded, in whole or
in part, by the Department. This financial aid enables
students to pay for the education they receive at Hills-
dale College by defraying their costs of tuition, books,
room and board, and other expenses. Since these funds
would otherwise have to be provided by the Respondent
itself, the federal funds in the form of loans or grants
release the Respondent’s funds for other educational pur-
poses. Moreover, the pool of applicants from which the
Respondent can select its students is broadened to the
extent that the federal grant and loan programs enable
students, who would not otherwise have the financial
means to do so, to attend Hillsdale College.

Payments under these student grant and loan programs
are clearly federal financial assistance to the Respond-
ent under the regulations promulgated pursuant to Title
IX,* and the Respondent is a “recipient” of such assist-
ance.’ This construction of the statute, incorporated by
the Department in its regulations, is supported by Bob
Jones University v. Johnson, 306 F.Supp. 596 (D.S.C.
1974), affd per curiam, 529 F.2d 514 (4th Cir. 1975).
In that case, the District Court held that an educational
institution which enrolled students who received cash pay-
ments under federal] assistance programs for veterans
was a recipient of federal financial assistance within the

s

*45 C.F.R. § 86.2(g)(1)(ii) and § 86.2(g) (5).
°45 C.F.R. § 86.2(h).

48a

meaning of Title VI.* The cash payments were used by
veterans to defray the costs of the university’s educa-
tional program, releasing institutional funds for other
uses which, in the absence of federal funds, would have
been spent on these students. Moreover, as here, the
university was benefited by enlarging its pool of quali-
fied applicants. 396 F.Supp. at 601-03. Cf. Norwood v.
Harrison, 413 U.S. 455 (1973) (state program of lend-
ing textbooks to private school students is “a form of
financial assistance inuring to the benefit of the private
schools themselves’): Committee for Public Education
and Religious Liberty v. Nyquist, 413 U.S. 756 (1973).
(The effect of tuition reimbursement payments to parents
is to provide financial support for the institutions. )

We do not deem it a significant distinction that the
Bob Jones case involved a discriminatory admissions
policy. The admissions policy was not the federal funded
program in Bob Jones; rather, the veterans benefits paid
to students attending Bob Jones were sufficient to render
that school a “recipient” of federal assistance such that
each program operated by Bob Jones, including the ad-
missions program, must be operated in compliance with
Title VI. Analogously, in the case at bar, the federal
financial assistance given to students attending Hillsdale
College renders that institution a “recipient”, requiring
that each of its programs comport with Title IX. We are
not holding here that the entire operation of the Respond-
ent is the “program or activity receiving federal financial
assistance” for purposes of terminating funds when a
violation of Title VI or Title IX has been found in one
aspect of the Respondent’s operations. The “pinpoint
provision” for terminating federal financial assistance ap-
plies to the sanction to be imposed when discriminatory

*The wording of Tifle IX, 20 U.S.C. § 1681(a), is virtually
identical to that of Title VI, 42 U.S.C. § 2000d, and both parties
agree that decisions construing Title VI are pertinent to the con-
struction of Title IX. initial Decision p. 19.

49a

conduct has been found—i.e., which funds may appropri-
ately be terminated once discrimination has been proven.
This is not the question before us. The question, rather,
is whether federal funds made available through student
grant and loan programs are financial assistance to the
Respondent such as to constitute it a “recipient” of fed-
eral assistance within the meaning of Title IX, thereby
requiring it to execute an assurance that it will not dis-
criminate in those programs to which Title IX applies.

We think it worth noting that an amendment to Title
IX specifically introduced to address the question raised
in the Bob Jones case, that an institution which received
no federal funds other than through student assistance
would be exempt from Title IX, was rejected by the Sen-
ate in 1976. 122 Conc. Rec. S$14760-14764 (daily ed.
August 27, 1976).

Respondent also argues that the Judge erred in disre-
garding Hillsdale’s argument that, if Title IX is con-
strued so as to authorize HEW’s regu’ ‘ion of all of Hills-
dale’s activities and programs, then constitutional issues
are necessarily entailed. The Respondent urges: “Hills-
dale’s construction of Title IX should therefore be ac-
cepted since it is, of course, a well recognized principle
that an Act of Congress should, if possible, be construed
in a manner which avoids questions of its constitution-
ality.” Respondent’s Exceptions p. 9.

Both parties and the Judge agree that an Administra-
tive Law Judge cannot rule a statute unconstitutional.
We likewise are without authority to review Respondent’s
constitutional claims. However, Respondent urges us to
adopt a narrow construction of Title IX “to avoid ques-
tions of its constitutionality”. We know of no “recog-
nized principle” that suggests that whenever one party
intends to raise constitutional issues, the statute in ques-
tion should be narrowed in its favor so as to avoid the
constitutional challenges. Respondent, it seems, would
have us assume the correctness of its constitutional chal-

50a

lenges, and narrow the statute to “save it” in order to
avoid constitutional questions that all agree we have no
authority to pass on. This invitation we respectfully
decline.

The Judge’s holding that Hillsdale College is a recipient
of federal financial assistance for purposes of Title IX
enforcement is affirmed and the exceptions to the contrary
denied.

II.

Hillsdale excepts to the determination by the Judge
that the regulations promulgated by the Department are
not, as a matter of law, in excess of the statutory au-
thority granted the Department by Congress under Title
IX.

The Exception is denied.

The only regulation properly before the Reviewing Au-
thority is 45 C.F.R. § 86.4 which requires that all applica-
tions for federal financial assistance be accompanied by
an executed Assurance of Compliance. Respondent does
not challenge the validity of this regulation as a legiti-
mate and lawful means of enforcing Title IX. Respond-
ent asks that we rule invalid those regulations pertaining
to student recruitment, dormitory regulations, pregnant
students, to name a few. The Judge refused to do so,
indicating that a determination of the validity of any
particular Title IX regulation must await a factual
framework within which a discriminatory practice has
been alleged. We likewise decline to pass on the validity
of any regulation that has not been allegedly violated.
Suffice it to say that an Assurance of Compliance commits
an institution to abide only by those regulations which
are valid. Any regulations judicially determined to be
unconstitutional or beyond the scope of statutory author-
ity can not be deemed binding upon an institution.

5la

Department’s Exceptions
I.

The Department excepts to the Initial Decision on the
ground that the Judge exceeded his authority by not en-
forcing the regulations implementing Title IX of the Ed-
ucation Amendments of 1972, in particular, 45 C.F.R.
§ 86.4.

The Exception is granted in part.

We agree with the Department that the Judge, by vir-
tue of his designation by the Reviewing Authority, was
empowered to apply the regulations implementing Title
IX, 45 C.F.R. Part 86. Section 86.4 provides in relevant
part:

Every application for Federal financial assistance for
any educational program or activity shall as condi-
tion of its approval contain or be accompanied by an
assurance from the applicant or recipient, satisfac-
tory to the Director, that each education program or
activity operated by the applicant or recipient and to
which this part applies will be operated in compliance
with this part.

The Judge in his Findings of Fact determined that Re-
spondent Institution, in refusing to execute the specified
form (HEW Form 639 A) as the Assurance of Compli-
ance with Title IX regulations, has refused to comply
with 45 C.F.R. § 86.4."

Neither party has challenged the validity of § 86.4 * and
in our view it is a legitimate and lawful means of en-
forcing Title IX. As a condition of receiving federal
funds, surely the federal government may require a state-
ment from the recipient that it will abide by the Civil
Rights laws in the use of that money. This statement puts

T Init. Dec. at 10 (Finding of Fact 17).
* Init. Dec. at 23.

52a

the recipient on notice that in taking these funds there is
an obligation not to discriminate and gives the govern-
ment some assurance that the recipient understands these
obligations and intends to abide by them. The Respondent
was clearly and deliberately in violation of this valid reg-
ulation, and further efforts at obtaining voluntary com-
pliance are futile. Hence the Respondent, having failed
to execute the Assurance which is the condition precedent
to receipt of federal funds, should not receive such funds.

We therefore hold that, as a condition of receiving fed-
eral funds, the applicant institution must execute an ac-
ceptable Assurance of Compliance, binding it to comply
with all lawful regulations.

The Department also claims that the Judge “rendered
the effect of the regulations implementing Title IX null
and void.” We do not reach the question of whether other
portions of Part 86, in particular those regulations per-
taining to employment practices, are invalid as exceeding
the scope of statutory authority. As we noted supra, none
of these regulations are properly challenged here. The
only violation charged in this proceeding is Respondent’s
refusal to sign an Assurance of Compliance.

We do not ignore the fact that executing an Assurance
of Compliance would impose a contractual] duty on the
Respondent to comply with Title IX and its regulations
where applicable. However, as we have earlier noted,
should the Title IX regulations, in whole or in part, sub-
sequently be judicially found to be in excess of statutory
authorization, the Respondent and other similarly situated
institutions would clearly not be bound by such invalid
regulations. By executing an Assurance of Compliance,
Hillsdale College is bound to comply only with lawful
regulations.

II.

The Department excepts to the Judge’s finding that
loans secured by students under the Guaranteed Loan

53a

Program do not constitute federal] financial assistance for
the purpose of enforcing Title IX.

The Exception is granted.

The Judge concluded that the Guaranteed Student Loan
Program (GSL) was exempt from Title IX coverage by
virtue of § 902 of Title IX, 20 U.S.C. § 1682, which de-
fines federal financial assistance as any grant, loan, or
contract “other than a contract of insurance or guar-
anty.” Under the GSL Program, students apply to private
lending institutions for loans to defray their educational
costs. The loans are guaranteed in whole or in part by
the federal government. U.S.C. § 1071 et seg.; 45 C.F.R.
$§ 177.31, 177.41-.43. The Government’s guaranty to a
lender against default by a student borrower, by itself,
seems to come within the exemption in § 902. However,
under the GSL Program, the Government also pays in-
terest to the lender on behalf of student borrowers while
they are attending college. 45 C.F.R. §§ 177.2, 177.4.
This is in effect a subsidy of federal funds from which
the Respondent benefits. We agree with Judge Feldman’s
conclusions in his Initial Decision in Grove City College,
Docket No. A-22 (Sept. 15, 1978):

[T)he Government not only guarantees the payment
of the student loans, but also the Government under-
takes and pays interest on the loans to the lender
while the student is in school. This would seem to re-
move this contract from being a contract of insurance
or guaranty. The obligation of the Government is
more that of a principal than that of an insurer or
guarantor.

In other words, while a contract of insurance or guaranty
alone does not involve an expenditure of federal funds un-
less and until the borrower defaults—i.e., it is a condi-
tional contract—the interest payments under the GSL
Program are direct and immediate disbursements of fed-

54a

eral funds aiding the Respondent in the same way as the
funds disbursed under the NDSL Program.

We therefore conclude that the GSL Program, in its
operation, goes beyond the terms of the contract of in-
surance or guaranty exclusion and falls within the pur-
view of Title IX. The Judge’s holding that loans secured
under the GSL Program do not constitute federal financial
assistance for Title IX purposes is therefore over-
ruled.

Order

In view of what has been said in response to the Ex-
ceptions of the Department and Respondent, we hereby re-
verse the part of the Judge’s decision which is incon-
sistent with our rulings herein, and hold the Respondent,
Hillsdale College, to be in noncompliance with Part 86.4
of the regulations implementing Title IX of the Education
Amendments of 1972. We further hold that in order to be
eligible for federal financial assistance, Respondent must
comply with Part 86.4 by executing an approved Assur-
ance of Compliance form. All Exceptions to the contrary
are denied.

JAMES BIERMAN
Betsy LEVIN
OLIVER MORSE

55a
APPENDIX €

ADMINISTRATIVE PROCEEDING
IN THE DEPARTMENT OF
HEALTH, EDUCATION, AND WELFARE

Docket No. A-7

IN THE MATTER OF
HILLSDALE COLLEGE and
STATE OF MICHIGAN

INITIAL DECISION
[Dated: August 23, 1978]

Preliminary Statement

This is a proceeding under Title IX of the Education
Amendments of 1972 (20 U.S.C. 1681 et seg.) and the
regulations of the Department of Health, Education, and
Welfare (45 CFR 86.1 et seg.) instituted by a Notice of
Hearing, dated December 2, 1977, filed by the General
Counsel, Department of Health, Education, and Welfare
alleging, in part, that Hillsdale College, Respondent Insti-
tution, receives, has applied for, or is eligible to apply
for, Federal] financial assistance for its program of post-
secondary education from the State of Michigan, Respond-
ent State Agency, and directly from the Department of
Health, Education, and Welfare, under one or more acts
of Congress administered by the Department of Health,
Education, and Welfare; and that Hillsdale has not sub-
mitted to DHEW an adequate Assurance of Compliance
with Title IX and its implementing regulation, as re-
quired by such regulation, although it has received timely

56a

notice that its failure to do so is violative of such regula-
tion and despite the attempt by the Office of Civil Rights,
DHEW, to obtain its compliance by voluntary means. The
Notice of Hearing further alleges that as long as Re-
spondent continues to fail to submit an adequate Assur-
ance of Compliance it is in violation of Title IX and is not
eligible to receive the Federal financial assistance de-
scribed in the notice.

The General Counsel prays for, in part, an order
“Terminating, refusing to grart or to continue, and find-
ing Respondent Institution ineligible to receive, Federal
financia] assistance which is administered by DHEW di-
rectly to the Respondent Institution or through the Re-
spondent State Agency”. which shall remain in force until
Hillsdale College satisfies the Director of the Office of
Civil Rights that it has complied with the requirements
of Title IX of the Education Amendments of 1972 and
that it has provided assurance that it will comply in the
future with such requirements.

The Notice of Hearing merely alleges with respect to
the State of Michigan that it exercises genera] supervision
over the institution of higher education of the State, in-
cluding Respondent Institution, and that it is “responsible
for receiving, administering, and disbursing specified
funds granted to the State by the Federal government for
educational purposes under various acts of Congress ad-
ministered by DHEW, and its duties in this connection
normally extend to and include the distribution of a por-
tion of such funds to Respondent Institution.” The State
of Michigan filed an answer dated January 5, 1978. It
is alleged therein, in part, that “the State Board of Edu-
cation receives, administers and disburses funds granted
to the state by the federal government for educational
purposes under various acts of Congress administered by
DHEW, but no funds are distributed to Respondent
Institution.”

57a

Hillsdale College filed an answer to the Notice of Hear-
ing January 4, 1978 in which it, in part, admits that it
has not submitted an Assurance of Compliance but de-
nies that the Genera] Counsel is authorized by Title IX
to bring this action, that the Secretary of Health, Educa-
tion, and Welfare has authority to require it to execute
such assurance or that it is eligible as, or is, a recipiént
of Federal financial assistance. In its answer, Hillsdale
College alleges several affirmative defenses to the effect
that while its students have and do receive Federal funds
to finance their education, it does not receive Federal fi-
nancial assistance “which is paid directly to the college to
use as the college sees fit or paid to the college to fund
any specific program or activity which Hillsdale College
maintains for the benefit of its students,” that the regu-
lations purportedly promulgated pursuant to Title IX are
in excess of statutory authority and violative of the Con-
stitution of the United States, that this proceeding to, in
effect, terminate and refuse to continue Federal financial
assistance to the students of Hillsdale College is illegal
and that the regulations involved are violative of the Con-
stitution of the United States if within the scope of stat-
utory authority.

Administrative Law Judge, Herbert L. Perlman, En-
vironmental Protection Agency, was designated on Jan-
uary 20, 1978 as the Administrative Law Judge to preside
in this proceeding and to issue an Initial Decision here
in. The Administrative Law Judge held a prehearing con-
ference February 2, 1978 in Washington, D.C. The Gen-
eral Counsel was represented by Harriet Kuryk and
Bonnie Milstein, Attorneys at Law, Washington, D.C., and
Respondent Institution was represented by Gordon C.
Coffman and John Michael] Facciola, Attorneys at Law,
Washington, D.C. The Respondent State Agency, which
was excused from further proceedings in this matter by
order dated January 26, 1978 upon agreement of the
parties as, in part, “the allegations in the notice of hear-

58a

ing herein contain no averments of unlawful conduct
against the Respondent State Agency”, was not repre
sented at the conference.

As a result of such conference, as set forth in a re-
port thereof dated February 3, 1978, the hearing in this
proceeding was vacated and a joint stipulation of facts
and accompanying exhibits filed by the parties, as
amended by the Report of Prehearing Conference, consti-
tute the record of this proceeding. Subsequently, the
parties filed statements of position and opening and reply
briefs.

Findings of Fact

1. Respondent Institution, Hillsdale College, is a pri-
vate, nonsectarian, coeducational college located in Hills-
dale, Michigan. Its present enrollment is approximately
1,000 students. The college awards three undergraduate
degrees, Bachelor of Arts, Bachelor of Science, and Bach-
elor of Liberal Studies.

2. The State of Michigan is the Respondent State
Agency in this proceeding. The State of Michigan Board
of Education, through the head of the Department of Ed-
ucation, only exercises genera] supervision over private
institutions of higher education, including Respondent In-
stitution, within the limits of the lawful authority con-
ferred upon the State Board of Education under Michigan
law. The State Board of Education receives, administers
and disburses funds granted to the State of Michigan by
the Federal government for educational purposes under
various acts of Congress administered by the Department
of Health, Education, and Welfare, but no funds are
presently distributed to Respondent Institution.

3. In the year ending June 30, 1978, as in previous
years, a number of students attending Hillsdale College
secured funds to pay their tuition to Hillsdale College
and other educational costs by virtue of moneys appro-
priated by Congress and allocated by the Department of
Health, Education and Welfare pursuant to the National

59a

Direct Student Loan Program, 20 U.S.C. 1087aa et seq.,
and the Basic Educationa] Opportunity Grant Program
and Supplemental Educational Opportunity Grant Pro-
gram, 20 U.S.C. 1070a and b. Additionally, a number of
students secured loans from private institutions to defray
educational expenses at Hillsdale, which loans are guaran-
teed, in whole or in part, by the United States under the
Guaranteed Student Loan Program, 20 U.S.C. 1071 et
seq.

4. In the year ending June 30, 1978, certain students
of Hillsdale College who are veterans secured funds di-
rectly from the United States pursuant to the Veterans
Education Benefits Act, 38 U.S.C. chapters 31, 34, 35 and
36. Said funds are administered by the Veterans Admin-
istration, not the Department of Health. Education and
Welfare, and are not now the subject of these proceedings.

5. Under the National Direct Student Loan Program
(NDSL) as it exists at Hillsdale College, loans are made
by Hillsdale to its students on the basis of their need in
compliance with the applicable requirements specified in
the statute creating the NDSL program and the appro-
priate HEW regulations. 45 CFR 144.1 et seg. (1976).
All funds from said NDSL fund at Hillsdale are paid to
students who, in turn, use said funds to pay the costs of
their education at Hillsdale either by direct payment to
Hillsdale (e.g., tuition) or to private vendors (e.g.,
books, rent for off-campus housing, etc.). In the year end-
ing June 30, 1977, the Department of Health, Education
and Welfare allocated $40,548 as the federal capital con-
tribution to this loan fund. In the year ending June 30,
1978, Hilisdale College did not receive a federal contribu-
tion to this fund because the cash on hand has been suf-
ficient for its needs. In the year ending June 30, 1978, _
approximately 107 students at Hillsdale College have
secured approximately $104,000 in such loans.

6. Under the Basic Educational Opportunity Grant
Program (BEOG), students who attend Hillsdale College

60a

secure federal funds, appropriated by Congress for use in
the program, directly from the United States. Upon re-
ceipt the student uses his or her grant to defray educa-
tional costs by direct payment to Hillsdale (e.g., tuition)
or by payment to private vendors (e.g., books, rent for off-
campus housing, etc.). In the year ending June 30,
1978, 54 students who attend Hillsdale College have se-
cured approximately $54,000 in such grants.

7. Under the Guaranteed Student Loan Program
(GSL), as it exists at Hillsdale College, a student de-
sirous of securing a loan guaranteed in whole or in part
by the United States applies to a private lending institu-
tion which, from its own capital, makes a loan to the
student who, in turn, uses the funds to defray educational
costs by payment to Hillsdale College (e.g., tuition) or by
payment to private vendors (e.g., books, rent for off-
campus housing, etc.). In the year ending June 30,
51 Hillsdale students have secured aproximately $123,306
in these loans.

8. Under the Supplemental Educational Opportunity
Grant Program (SEOG), funds, appropriated by Con-
gress and allocated to Hillsdale by DHEW, are awe.rded
by Hillsdale to needy students in compliance with the ap-
plicable requirements specified in the statute creating; the
SEOG program and the appropriate HEW regulations.
45 CFR 176.1 et seg. (1976). The students then utilize
the grants to defray the costs of their education by di-
rect payment to Hillsdale (e.g., tuition) or by paymert
to private vendors (e.g., books, rent for off-campus hous-
ing, ete.) In the year ending June 30, 1978, approximately
53 students attending Hillsdale College have been awarded
the $37,400 allocated to Hillsdale by DHEW.

9. Besides the funds appropriated and allocated under
the programs enumerated in Findings of Fact 3-§ above,
neither Hillsdale College nor its students partic pate in
any other programs or activities which are funded, in

6la

whole or in part, by the United States. Hillsdale College
did participate in the College Work Study program, cre-
ated pursuant to the statutory authority of 42 U.S.C. 2751
et seq., in the year ending June 30, 1977. Although funds
in the amount of $17,325 were allocated to Hillsdale Col-
lege under said program for use in the year ending June
30, 1978, Hillsdale College decided not to continue such a
program and neither requested nor accepted the funds
allocated to it for this program from the United States.

10. Hillsdale College has been deemed eligible by
DHEW to participate in the programs specified in Find-
ings of Fact 3-9 above under the applicable program
regulations.

11. Regulations implementing Title IX of the Educa-
tion Amendments of 1972, U.S.C. 1681 et seqg., at 45 CFR
Part 86, became effective on July 25, 1975, and were pub-
lished for genera] notice. 40 F.R. 24128.

12. Section 86.4 of said regulations requires every ap-
plication for Federal financial assistance to be accom-
panied by an Assurance of Compliance with said regula-
tions.

13. Section 86.2(g) (ii) defines Federal financial as-
sistance to include, inter alia:

“Scholarships, lowns rants, wages, or other funds
extended to any enuty for payment to or on behalf
of students admitted to that entity, or extended di-
rectly to such students for payment to that entity.”

14. The Director of the Office of Civil Rights, DHEW,
has specified HEW Form 639A as the Assurance of Com-
pliance with the Title IX regulations which is acceptable
to him.

15. On several occasions in 1977, the Director of the
Office of Civil Rights has requested, in writing, that Hill-
dale College submit an executed HEW Form 639A and
Hillsdale College has not done so.

{

62a ~:

16. Ina letter dated December 3, 1977, the Director of
the Office of Civi] Rights advised Hillsdale College that
if HEW Form 639A was not completed and returned
within ten days of receipt of said letter, enforcement ac-
tion would be initiated against Hillsdale College to secure
its compliance with 45 CFR 86.4 (1976).

17. Hillsdale College has not requested assistance from
the Office of Civil Rights, DHEW, to aid it in complying
with 45 CFR 86.4. Continued voluntary efforts by DHEW
to secure its execution of HEW Form 639A will be futile.
Hillsdale College has refused to file and has no intention
to file an executed HEW Form 639A.

. 18. On or about October 16, 1977, Hillsdale College sub-
mitted a certain DHEW form applying to DHEW for the
allocation of $34,557 to the SEOG program it participates
in and for authorization to maintain a level of lending of

$103,671 in its NDSL program.

19. On or about December 3, 1977, the Director of the
Office of Civil Rights advised Hillsdale College by letter
that he was imposing a deferral, commencing January 3,
1978, on “final approval of applications for Federal finan-
cial assistance filed on behalf of your institution for new
programs and for increases in the funding of continuing
programs” until the conclusion of this proceeding. Sub-
sequent thereto, the consequence of the deferral has been
explained to mean that in the fall semester of 1978 Re-
spondent Institution may loan the $103,671 in its Na-
tional Direct Student Loan Program to its students and
that “In the absence of a final order of termination [in
this proceeding] signed by the Secretary and the passage
of 30 days after transmittal to the appropriate committees
of Congress, students who intend to attend Respondent
Institution in the fall semester of 1978, and who otherwise
qualify, will be able to secure Basic Educational Oppor-
tunity Grants to defray the costs of their education at
Hillsdale” and “will be able to secure loans from private
lenders under Guaranteed Student Loan Program to

63a

defray the costs of their education at Hillsdale.” Hills-
dale’s application for the Supplemental Education Oppor-
tunity Grant Program remains deferred pursuant to the
December 3, deferral of the Director of the Office of
Civil Rights.

Conclusions
I

In this proceeding under Title IX of the Education
Amendments of 1972 (20 U.S.C. 1681 et seg.) and the
regulations.of the Department of Health, Education, and
Welfare (45 CFR 36.1 et seqg.), the General Counsel seeks
an order terminating what is alleged to be Federal finan-
cial assistance Hillsdale College is now receiving and which
it might be eligible to apply for and receive in the future
on the ground that it has failed to submit an Assurance
of Compliance as required by section 86.4 of the applicable
regulations (45 CFR &6.4).' The General Counsel also
seeks an order which will prohibit the State of Michigan
from disbursing Federal financial assistance to Respondent
Institution in the future by reason of such failure (See
also 45 CFR 80.8). Hillsdale College contends that it
does not operate any “education program or activity re-
ceiving Federal financial] assistance”, that it is not there-
fore a “recipient” of such assistance within the meaning
of Title IX and that it is not subject to regulation by the
Department of Health, Education, and Welfare.

Title IX of the Education Amendments of 1972, en-
acted into law on June 23, 1972, was designed to prevent

1 Section 86.4 reads, in part, as follows:

(a) General. Every application for Federal financial assistance
for any education program or activity shall as condition of its
approval contain or be accompanied by an assurance from the
applicant or recipient, satisfactory to the Director, that each
education program or activity operated by the applicant or re-
cipient and to which this part applies will be operated in com-
pliance with this part...”

64a

sex discrimination in federally assisted\education pro-
grams. Section 901, 20 U.S.C. Section 1681, provides, in
pertinent part, as follows:

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... .

Sectior 902 directed the promulgation of regulations to
effectuate the provisions of Section 901.2 DHEW pub-

2? Section 902 provides as follows:

Each Federal department and agency which is empowered to
extend Federal financial assistance to any education program
or activity, by way of grant. loan, or contract other than a
contract of insurance or gua. .nty, is authorized and directed
to effectuate the provisions of section 901 with respect to such
program or activity by issuing rules, regulations, or orders
of general applicability which shall be consistent with achieve-
ment of the objectives of the statute authorizing the financial
assistance in connection with which the action is taken. No
such rule, regulation, «.* order shall become effective unless and
until approved by the President. Compliance with any require-
ment 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 op-
portunity for hearing, of a failure to comply with such re-
quirement, but such termination or refusa! shall be limited to
the particular political entity, or part thereof, or other re-
cipient as to whom such a finding has been made, and shal! be
limited in its effect to the particular 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 con-
cerned has advised the appropriate person or persons of the
failure to comply with the requirement and has determined
that compliancé cannot be secured by voluntary means. In the
case of any action terminating, or refusing to grant or con-
tinue, assistance because of failure to com

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385010_0639%3A2. Public record. Not legal advice.