Petition — West Texas State University v. Bennett

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Office- Supreme Court, US.

' FILED

82-1683 | see os

SSS nes ee

In THE

Supreme Court of the United States

Octosper Term, 1982

West Texas State University, et al.,

Petitioners,

Tina Bennett, et al.,

Respondents.

PETITION FOR A WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

Auan B. JoNEs

Counsel of Record

Hartow SPROUSE

Unverwoop, Wiison, Berry,

Stein & JoHNSON

P. O. Box 9158

Amarillo, Texas 79105

(806) 376-5613

Attorneys for Petitioners

QUESTION PRESENTED

Does Title IX. of the Education Amendments of 1972,

Pub. L. No. 92-318, 86 Stat. 373, 20 U.S.C. § 1681, et seq.,

apply to the intercollegiate athletics program of a univer-

sity as a result of the receipt of Federal financial assistance

by the university’s students or by other education pro-

grams or activities conducted by the university, when the

intercollegiate athletics program itself receives no direct

Federal financial assistance?

PARTIES IN THE COURT OF APPEALS

The parties to the proceeding in the court of appeals are

as follows:

Tina Bennett, Geneva McAfee, Deanne Robertson,

Yvonne Berryhill, Arlene Bern and

Diana Byrnes ..... Plaintiffs/Appellants/Respondents

West Texas State University, Dr. Myron H. Dees,

Dr. Gail Shannon, Max R. Sherman, T. L. Roach, Jr.,

Charles Schmidt, Dee S. Osborne and

Don Davis ........ Defendants/Appellees/Petitioners

Some of the individual Petitioners named above were not

joined as defendants in the district court, but have subse-

quently become parties to this proceeding by operation of

law. Fep. R. Crv. P. 25(d), Fep. R. App. P. 43(c).

TABLE OF CONTENTS

Page

SCE Scan cct sweetened decatveuviauoudues 1

EE cca ces su cuh dnd vauheseneraee Macatee 1

Statutory Provisions Involved .................04 2

NE SER TAOD 0 o's Sino i cae tncnbeabaxnngaves 2

Reasons for Allowing the Writ .................0.. 6

I. By reversing the district court’s summary judg-

ment, the court of appeals decided an important

question of Federal law which has not been, but

should be, settled by this Court .............. 6

II. By reversing the district court’s summary judg-

ment, the court of appeals decided this case in

a manner which conflicts with the decisions of

other courts of appeals on the same matter... 17

PN 6 Cua vas ace coun cckee sebateenanameaweah i8

ET MT ONOUOD oc n.ccckcdavenncecusaeeen suas i9

BOOED. 65 ccccccces Opinion of the Court of Appeals

SE OP <6 0.00540.84 oe cus Opinion of the District Court

ee Judgment of the Court of Appeals

EE vcs nsewaeuees Order of the Court of Appeals

on Petition for Rehearing

EES incon suse seevalnen tenes Text of Title IX

TABLE OF AUTHORITIES

Cases

Page

Grove City College v. Bell, 687 F.2d 684 (3rd Cir.

1982), cert. granted, 51 U.S.L.W. 3611 (Feb. 22,

BEE Vikk.o cinnd wkve cere eeenneareernl 2, 10, 12, 13, 16

Haffer v. Temple University, 688 F.2d 14 (3rd Cir.

| Ra PA Se pnb ager | ARE Ay =p a aE RES 13, 16

Hillsdale College v. Department of Health,

Education and Welfare, 696 F.2d 418 (6th Cir.

DEE Eos pune ie vba an bans ate Nek kaka Se Vows % 10, 11, 17

North Haven Board of Education v. Bell, US.

, 102 S.Ct. 1912, 72 L.Ed.2d 299

CRD dc cdsnuberateweh ckaannee 5, 6, 7, 9, 10, 11, 16, 18

Othen v. Ann Arbor School Board, 507 F. Supp.

1376 (E.D. Mich. 1981) aff’d on other grounds,

F.2d (6th Cir., No. 81-1259, Feb. 2,

BN 6 tanaera dada recsbaxhbemenyeleieneés eras 17

Rice v. President and Fellows of Harvard College,

See We me Oe CAP, TOE) osc ve ccictowcccnsass 12,17

Stewart v. New York University, 430 F. Supp. 1305

Ss MOE Aniskexcaks bende decenesoeess ber 17

University of Richmond v. Bell, 543 F. Supp. 321

EE ccardcaubeehonssaaaees 13, 14, 15, 16, 17

Statutes

Title 1X, Education Amendments of 1972,

Pub. L. No. 92-318, 86 Stat. 373, 20 U.S.C.

See OD Scntncssccocnccccsceszarescess passim

Department of Education Organization Act, Pub. L.

No. 96-88, 93 Stat. 678, 20 U.S.C. §3441(a)(3).... 3

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i nn oe ohh me empeibineieiedred 3

PUM Ms CMD ov Ssiv nes cccbnncactanedcusosecs

ie SE Sn eawiatoapebeucchbecseeaseus

Tex. Epuc. Cope Ann., § 54.508 ............cceeees

Regulations

45 C.F.R. § 86.1, et seg., recodified at 34 C.F.R.

PO. o'o-04s ocedebay toads ccucesecheesa’

Miscellaneous

Letter from Wm. Bradford Reynolds, Assistant

Attorney General, Civil Rights Division, United

States Department of Justice, to Clarence M.

Pendleton, Jr., Chairman, United States Commis-

sion on Civil Rights (September 16, 1982) ......

The Washington Post, September 9, 1982 (Final

PE Nai ab cauuanecseetnaesibaccpeeegaeubees

The Washington Post, October 11, 1982 (Final

EE a buriavbs seu banledat Nacedwethwrehacen

In THE

Supreme Court of the United States

Octroser Term, 1982

No.

West Texas State University, et al.,

Petitioners,

Tina Bennett, et al.,

Respondents.

PETITION FOR A WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

OPINIONS BELOW

The opinion of the court of appeals was not published.

That opinion is reproduced as Appendix A. The opinion of

the district court is reported at 525 F. Supp. 77 and is re-

produced as Appendix B.

JURISDICTION

The judgment of the court of appeals was rendered on

January 31, 1983. Petitioners’ timely petition for rehear-

ing before the court of appeals was granted in part and

denied in part by order of February 23, 1983. The jurisdic-

tion of this Court is invoked under 28 U.S.C. § 1254(1).

STATUTORY PROVISIONS INVOLVED

This case involves Title IX of the Education Amend-

ments of 1972, Pub. L. No. 92-318, 86 Stat. 373, 20 U.S.C.

§ 1681, et seg., and, in particular, Section 901(a) of Title

IX, 20 U.S.C. §$ 1681(a). Section 901(a) provides, in perti-

nent part:

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 .. .

The statute is reproduced in its entirety as Appendix E.

STATEMENT OF THE CASE

This case presents issues which are very similar to those

presented to the Court in Grove City College v. Bell, 687

F.2d 684 (3rd Cir. 1982), cert. granted, 51 U.S.L.W. 3611

(Feb. 22, 1983). Both cases involve the construction of

§$901(a) of the Education Amendments of 1972, Pub. L.

No. 92-318, §901(a), 86 Stat. 373, 20 U.S.C. § 1681(a)

(hereinafter called “Title IX”). Specifically, both cases

involve the question of whether Federal financial aid to

students constitutes “Federal financial assistance” to an

education program or activity at the students’ school.!

However, where Grove City deals with the applicability of

Title IX to an entire institution, this case concerns its

applicability to only one program — intercollegiate

athletics.

1This case also involves Federal aid for construction purposes, an

issue not presented in Grove City.

This suit was brought by six female students at West

Texas State University (“WTSU” or “the university”)

who participate in various aspects of the university’s inter-

collegiate athletics program. The students sued on behalf

of themselves and as representatives of a class of present

and future female intercollegiate athletes at WTSU. The

defendants were the university itself, and several of its

officials.2 Jurisdiction in the district court was invoked

under 28 U.S.C. $§ 1331, 1343, 2201 and 2202.

The plaintiff students alleged that the university had

violated Title IX and the regulations of the Department

of Health, Education and Welfare, 45 C.F.R. § 86.1, et seq.,°

by engaging in a panoply of “policies and practices” which

discriminate against women on the basis of sex and deny

women equal opportunity in the university’s intercollegiate

athletics program. The university denied the plaintiffs’

charges of discrimination.

Title IX does not prohibit sex discrimination in educa-

tion generally. Rather, Title [X on!y prohibits discrimina-

tion on the basis of gender in “any education program or

activity receiving Federal financial assistance.” The con-

nection between intercollegiate athletics at WTSU and

the Federal fisc was thus a crucial threshold question in this

case.

Intercollegiate athletics at WTSU draws its funding

from three sources: ticket sales and guarantees, private

donations, and the student service fee authorized by Tex.

2For the sake of simplicity, references to “WTSU” or “the univer-

sity” in connection with the course of these proceedings include

the individual defendants as well as the institution.

3Recodified at 34 C.F.R. § 106.1 1, et seq., upon the transfer of

HEW’s functions under Title IX to the Department of Educa-

tion. Department of Education Organization Act, Pub. L. No.

96-88, 93 Stat. 678, 20 U.S.C. § 3441(a)(3).

Epvuc. Cope Awnwn:, $54.503. The university’s intercol-

legiate athletics program receives none of its funding from

the Federal government or from any agency or department

thereof. Based on this lack of financial connection between

intercollegiate athletics and Federal dollars, the university

filed a motion for summary judgment. It urged that, since

intercollegiate athletics at WTSU enjoyed no financial

assistance from the Federal government, it was not subject

to Federal regulation under Title IX.

In response to the university’s motion, the plaintiff stu-

dents conducted considerable discovery. with respect to this

issue. They deposed both the university’s Business Manager

and Chief Fiscal Officer and its Athletic Director, and

sought further information by way of written interroga-

tories. The plaintiffs’ discovery disclosed no direct Federal

financial assistance to intercollegiate athletics at WTSU.

However, like most colleges and universities in this day,

WTSTU has not been able to avoid at least a minimal degree

of contact with the Federal government. For instance, some

of the university’s students receive Federal aid of one

form or another: Basic Educational Opportunity Grants

(“BEOGs”), Supplemental Educational Opportunity Grants

(“SEOGs”), National Direct Student Loans (“NDSLs”),

Guaranteed Student Loans (“GSLs”), college work-study

benefits, veteran’s benefits, etc. Furthermore, during the

past decade, WTSU has accepted Federal assistance in the

construction or expansion of five buildings on campus: a

men’s dormitory, a women’s dormitory, an addition to the

dining hall, a science building and a library. Finally, the

university continues to offer an ROTC program, resulting

in the presence of the United States Army on campus.

In response to the university’s motion for summary

judgment, the plaintiffs pointed only to these areas of

Federal financial involvement at WTSU. The plaintiffs

directed the attention of the district court to no Federal

funding going directly to intercollegiate athletics. Instead,

the plaintiffs argued that Federal aid to students, Federal

'aid in the construction of non-athletic facilities, and the

fact that an ROTC instructor volunteered to coach the

co-ed riflery team were sufficient to subject intercollegiate

athletics at WTSU to Title IX coverage.

The district court disagreed. Tnat court, anticipating

this Court’s holding in North Haven Board of Education v.

Bell, US. , 102 S.Ct. 1912, 72 L.Ed.2d 299 (1982),

determined that Title IX is “programmatic” in scope and

that, before the statute will apply to a particular education

program or activity, Federal financial assistance to that

specific program or activity is required. The district court

further held that the challenged program must directly

receive the financial assistance which is claimed to be the

nexus with the Federal government; it is not sufficient if

the challenged program merely derives some _ indirect

benefit from Federal assistance to another program, or

to the institution as a whole or to its students. Finding no

such assistance to intercollegiate athletics at WTSU, the

district court rendered summary judgment for the

university.

The court of appeals reversed the district court’s sum-

mary judgment and remanded the case for further pro-

ceedings. In doing so, the court of appeals pointed to

neither a genuine issue as to a material fact in the record

nor an erroneous legal conclusion drawn by the district

court which rendered summary judgment inappropriate.

Rather, the court of appeals concluded only that the plain-

tiffs had not been “allowed to make a record of the direct

funding that comes to the athletics department from the

sources they identified,” and reversed on that basis alone.

The court of appeals also stated that the plaintiffs

“should be permitted to demonstrate the sex discrimination

which allegedly exists in the intercollegiate athletics pro-

gram,” thereby intimating that the district court was not

permitted on remand to consider the Federal funding issue

apart from the merits of the case and dispose of the litiga-

tion on that basis, if appropriate. In response to the uni-

versity’s petition for rehearing, the court of appeals

eliminated the latter sentence from its opinion. Otherwise,

the petition for rehearing was denied.

REASONS FOR ALLOWING THE WRIT

By reversing the district court’s summary judgment, the

court of appeals decided an important question of Federal

law which has not been, but should be, settled by this Court.

In North Haven Board of Education v. Bell, supra, this

Court determined that Title IX has a “program-specific

focus,” rejecting the “institutional” construction of Title

IX which has consistently been advocated by the plaintiffs

in this case. This Court determined that the focus of in-

quiry in a Title IX case is whether discrimination is alleged

to have occurred in a “program,” as opposed to an “insti-

tution,” which receives Federal financial assistance. This

Court thus adopted the same general view of Title IX’s

scope as that which the district court had settled upon in

granting summary judgment in this case. However, in

North Haven this Court expressly declined to define the

term “program,” leaving that issue for another day. Also

left for another day was the issue of the type of Federal

expenditure which will constitute Federal financial assis-

tance to a particular program, a question not presented in

North Haven. Both questions are presented here.

The plaintiffs have urged, in effect, that in the case of a

university which offers a variety of educational, extracurri-

cular and related programs and activities, the institution

itself must be considered a “program” for Title IX pur-

poses: According to the plaintiffs, if the university re-

ceives funding in any measure from the Federal govern-

ment, whether that funding is general or is for the purpose

of conducting specific and discrete programs and activities,

then all of its programs and activities benefit in some man-

ner, albeit indirectly, from the expenditure of Federal

funds. In such a circumstance, the plaintiffs would deem the

entire institution a “program,” rendering the institution

itself and all of its distinct programs and activities subject

to the strictures of Title IX. By artful definition of the term

“program,” the plaintiffs thus reach the same result as

would have been reached had this Court accorded Title IX

an “institutional” construction in North Haven.

Others, including the university, accord the term “pro-

gram” a narrower meaning. The language contained in

both § 901(a) and other portions of Title IX and the legis-

lative history of the statute indicate that distinct programs

or activities of a multi-program entity such as a university

must be viewed separately. The key inquiry is whether the

specific program or activity in which gender discrimination

is claimed itself receives Federal aid. Stated another way,

the threshold question under Title IX is whether the dis-

crimination alleged by the plaintiff is discrimination in a

Federally funded education program. Any other conclusion

would circumvent the “programmatic” construction of the

statute settled upon in North Haven.

Similar disagreement exists with respect to the meaning

of the terms “receiving” and “assistance,” as they are used

in Title IX. According to the plaintiffs, even if the focus

of inquiry is upon discrete programs or activities of a

university, those individual programs “receive” Federal

financial assistance if it can be argued that they derive a

benefit from the expenditure of Federal money. Thus,

according to the plaintiffs Federal financial assistance to

one program of a multi-program entity constitutes assis-

tance to all programs since the Federal funds “free” funds

of the institution for use in other programs. Similarly,

according to the plaintiffs the receipt of Federal aid by

students constitutes Federal financial assistance to the

university, and in turn to all of its programs and activities,

because student financial aid is ultimately used by the stu-

dents for the payment of tuition, room, board, fees, and

other expenses to the university. The plaintiffs would

accord to the term “assistance” no connotation of patron-

age, aid or help, but would include within that term money

which is paid to a university in exchange for education-

related goods and services. Thus, under the plaintiffs’

theory, if a dollar can be traced from the Federal govern-

ment to a university, the university and all of its programs

and activities are thereby rendered subject to Title IX

regardless of the manner in which, and reason for which,

the dollar was paid and regardless of the identity of the

payor.

The university, on the other hand, takes the position that

the financial assistance which is claimed to be the nexus

between the Federal government and a challenged program

must be received directly by the program. The university

rejects the notion that an education program which itself

receives no direct funding by the Federal government can

be subjected to Title IX by assertions that it benefits, in -

some speculative and unquantifiable manner, from Federal

assistance to another program. The university likewise re-

jects the notion that its students’ use of their Federal aid

to purchase goods and services for their education consti-

tutes Federal financial assistance to the university and all

of its programs. In other words, the university rejects the

plaintiffs’ attempt to define the terms “receiving” and

“assistance” in such a manner as to circumvent the pro-

grammatic construction of Title IX adopted in North

Haven.

These questions are of controlling importance in this

ease. The challenged program here is intercollegiate ath-

letics. However, the plaintiffs have never pointed to any

Federal financial assistance to intercollegiate athletics at

WTSU, as there is none. The financial assistance relied

upon by the plaintiffs to supply the link with the Federal

government is of essentially two types: Federal aid for

the purpose of constructing non-athletic facilities and Fed-

eral aid to students.* However, the plaintiffs claim dis-

crimination in neither the operation of the Federally

funded facilities nor the university’s role in administer-

ing student financial aid. The meaning given to the terms

“program,” “receiving” and “assistance” will therefore de-

termine whether the Federal money relied upon by the

plaintiffs can result in Title [IX coverage of a program so

apparently unrelated to that money as intercollegiate

athletics. The court of appeals evidently concluded that,

at least under some circumstances, it can since it reversed

the district court’s judgment that it cannot. That conclu-

sion involves significant questions of Federal law which

should be decided by this Court.

Several courts have confronted the issues presented in

this case. However, neither the focus of those courts nor

their holdings on the issues presented here has been

unanimous. The significance of Federal aid to students

has recently been considered by two courts of appeal

‘The court of appeals evidently found little significance in the

ROTC instructor's gratuitous undertaking to coach the riflery

team.

which have reached directly contradictory conclusions. In

Grove City College v. Bell, supra, the Third Circuit held

that Federal aid to students constitutes Federal financial

assistance to the college for Title [IX purposes. The court

rejected Grove City’s argument that only direct assistance

to a program would render it subject to the statute. In

holding that aid to students constitutes “Federal financial

assistance” to the college, the court stated:

In light of Congress’ intent which we have gleaned

from the legislative history of Title IX, we are satis-

fied that monies which are paid to students, who in

turn use those funds for their education, constitute

no less a part of the college’s revenues than federal

monies paid directly to the institution itself.

Id., at 693. In response to Grove City’s argument that

student aid is general and non-program specific and that

such a construction of the statute would circumvent this

Court’s decision in North Haven, the Third Circuit opined

that the institution was the “program” for Title IX pur-

poses. According to the court:

Because the federal grants made to Grove’s students

necessarily inure to the benefit of the entire College,

the “program” here must be defined as the entire in-

stitution of Grove City College.

Id., at 700 [footnote omitted]. This Court has granted

certiorari to review these holdings.

In Hillsdale College v. Department of Health, Education

and Welfare, 696 F.2d 418 (6th Cir. 1982), the Sixth Cir-

cuit reached the opposite result. In Hillsdale, the court

was faced with some of the same financial aid programs

which are at issue in this case — the “NDSL” program, the

“BEOG” program, the “SEOG” program, and the “GSL”

program. HEW insisted that the college’s students’ receipt

of Federal aid rendered Hillsdale an “education program”

within the meaning of ~itle IX, obligating it to execute the

agency’s “Assurance of Compliance” form.

The court in Hillsdale used this Court’s decision in North

Haven as its point of departure. The court noted HEW’s

position that, when an educational institution receives

Federal money as a result of its students’ receipt of Fed-

eral grants and loans, the entire institution constitutes an

education program or activity. However, relying in part

upon the district court’s opinion in this case, the Hillsdale

court found inconsistency between that position and the

programmatic nature of Title IX:

Under the position taken by the plaintiffs in Bennett

and HEW in the instant case, every program or activ-

ity of an educational institution that accepts students

who receive federal financial assistance would be sub-

jected to regulation under Title LX. 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 federal finan-

cial assistance. For the reasons stated herein, we find

HEW’s position to be inconsistent with the program -

specific language of Sections 901 and 902 of Title IX.

Id., at 428. According to the court, the “practical effect” of

HEW’s position “would be to circumvent the programmatic

focus of the statute and adopt the institutional approach”

which this Court had refused to adopt in North Haven. Id.,

at 427. The Sixth Circuit therefore rejected HEW’s con-

tention that the entire college was a “program” within the

meaning of Title IX and held that “only the student loan

and grant program is subject to Title [IX regulation.” Zd.,

at 430. The Hillsdale court also expressly declined to follow

the decision of the Third Cireuit in Grove City College v.

Bell, supra.

These directly contradictory decisions by the Third and

Sixth Cireuits are not the only ones which have considered

the relationship between Title IX and student financial aid.

In Rice v. President and Fellows of Harvard College, 663

F.2d 336 (1st Cir. 1981), the plaintiff alleged discrimination

in the awarding of grades at Harvard Law School in viola-

tion of Title IX. The plaintiff asserted that:

... by virtue of the Law School’s status as a recipient

of federal funds through such specific programs as

work-study, Title IX applies whenever the School dis-

criminates in any area, regardless of whether the

discrimination occurs in a program that is federally

funded.

Id., at 338. In Rice, the First Cireuit joined the ranks of

those courts which have concluded that Title IX is a pro-

gram-specifie statute. The court noted that the only Feder-

ally funded program identified by the plaintiff was the

work-study program. In affirming the district court’s dis-

missal of the case, the court stated:

By alleging merely that Harvard Law School receives

federal funds for its work-study program, without

alleging sex discrimination in the School’s handling of

that program, Rice has failed to bring herself within

the protection of Title IX.

Id., at 339 [footnote omitted]. In a footnote, the court

amplified its holding by stating that:

... Once admitted to an educational institution, allega-

tions of discrimination in violation of 20 U.S.C. § 1681

must involve discrimination by the particular funded

education program within that institution.

Id., at 339, n. 2.

On the other hand, a second panel of the Third Circuit

followed Grove City in holding that indirect benefits to an

education program, including whatever benefit that pro-

gram might reap as a result of Federal financial aid to

students, were sufficient to trigger Title IX coverage of

the program. Haffer v. Temple University, 688 F.2d 14

(3rd Cir, 1982), Noting the binding effect of opinions of

prior panels in that court, the Haffer court stated:

Whatever the views of the individual judges on this

panel may be, the result reached in Grove City and the

reasoning employed by the Court there resolve the

present appeal.

After Grove City, then, it is clear that the only result

we can reach in this appeal is to affirm: if Temple

University as a whole is to be considered the “program

or activity” for Title IX purposes, it follows that

because the University as a whole receives federal

monies, its intercollegiate athletic department is gov-

erred by Title IX.

Id., at 16-17 [footnotes omitted].

In addition to the four decisions of courts of appeals dis-

cussed above, a decision of one Federal district court in this

area merits comment. In University of Richmond v. Bell,

543 F. Supp. 321 (E.D.Va. 1982), the court was faced with

the precise issue presented here, i.e., whether an intercol-

legiate athletics program was rendered subject to Title IX

by virtue of Federal aid to students and Federal aid for

the purpose of constructing non-athletic facilities. As is

the case here, the athletic department at Richmond is

“funded separately from other programs at the University

based on a budget drawn from sports revenues and gifts

and the general funds of the University. It receives no

direct federal financial assistance.” Jd., at 323.

In Richmond, the court declined to treat Federal aid to

students as Federal financial assistance to the university.

According to the court:

These funds received by UR from or on behalf of

students, and which originate from federal funds are

not really “‘federal assistance’ [at all] but rather

payments for services rendered. Federal judges receive

federal salary checks each month but it is not supposed

that this is ‘assistance’. It is presumed that they are

being paid an approximation, at least, of what they

should be compensated for judging.” Trageser v. Libbie

Rehabilitation Center, Inc., 462 F. Supp. 424, 426 (E.D.

Va. 1977), aff'd, 590 F.2d 87 (4th Cir. 1978), cert.

denied, 442 U.S. 947, 99 S.Ct. 2895, 61 L.Ed.2d 318

(1979).

Id., at 330. The court also held that Title IX coverage of a

program is conditioned upon direct assistance to that

program. Accordingly, the court held that some indirect

benefit that the intercollegiate athletics program might

derive by virtue of Federal financial assistance to other

programs (such as the university’s non-athletic construc-

tion program) is not a sufficient basis upon which to predi-

cate Title IX coverage of intercollegiate athletics. In con-

clusion, the court stated:

The Court simply will not countenance the ED’s

attempt to bootstrap itself through its regulations to

make, by necessary implication, all programs and

activities of a private university subject to its control

when any program or activity within the institution,

or the institution, or students themselves receive what

it determines to be “federal financial assistance.” See

34 C.F.R. § 106.2(g).

Id., at 330-331. Accordingly, the court enjoined the Depart-

ment of Education from investigating any program or

activity at an educational institution within its jurisdiction

without a showing that the program or activity is the

recipient of direct Federal financial assistance.

Apart from its holding, the primary importance of the

Richmond decision lies in the response of the Departments

of Justice and Education to that decision. Those agencies

determined not to appeal the Richmond decision. In a letter

to the Chairman of the United States Commission on Civil

Rights,5 the Assistant Attorney General for Civil Rights

stated the government’s position that:

In light of the clear language of Sections 901 and 902,

the accompanying legislative history, and the Supreme

Court’s recent pronouncement of the intended scope

of Title IX coverage, we found Judge Warriner’s opin-

ion to be both analytically and legally sound. Its con-

clusion that only those University programs and activi-

ties shown to be recipients of Federal funds are within

the reach of Title IX is fully consistent with the better

reasoned judicial precedents in the area. See Rice v.

President and Fellows of Harvard College, 663 F.2d

336 (1st Cir. 1981); Bennett v. West Texas State Uni-

SLetter from Wm. Bradford Reynolds, Assistant Attorney General,

Civil Rights Division, United States Department of Justice, to

Clarence M. Pendleton, Jr., Chairman, United States Commission

on Civil Rights (September 16, 1982), discussed in The Wash-

ington Post, October 11, 1982 (Final Edition), at A 17.

versity, No. 280-0073-f (N.D. Tex., July 27, 1981);

Othen v. Ann Arbor School Board, 507 F. Supp. 1376

(E.D. Mich. 1981).

The Assistant Attorney General expressly referred to the

decisions of the Third Circuit in Grove City and Haffer,

supra, and concluded that Judge Warriner’s opinion in

Richmond “had the best of it.” Thus, the two agencies of

the Federal government most intensely involved in the en-

forcement of Title IX have apparently concluded that the

opinion of the district court in this case, which the court of

appeals reversed, correctly construed the nature and scope

of Title IX, at least in the area of intercollegiate athletics.

Confusion and inconsistent precedent thus mark our pro-

gress to date in the effort to define the terms “program,”

“receiving” and “assistance” as used in Title IX. This

Court’s decision in North Haven, while it directs us toward

the proper path to follow, gives us little light to guide our

way. The court of appeals in this case presumably conclud-

ed that those terms are broad enough to encompass what-

ever indirect benefit an education program may derive by

virtue of Federal aid to students or to other unrelated pro-

grams. However, the complexity of these issues, the incon-

sistent results achieved in dealing with them and their far-

reaching effects on American education dictate that they

shoulc be resolved by this Court. This Court has agreed to

consider the issues presented by Grove City. Certiorari

should be granted to review the related issues presented

here as well.

*See also The Washington Post, September 9, 1982 (Final Edi-

tion), at A23, where Assistant Attorney General Reynolds is

quoted as stating that the Richmond decision “is pretty sound >*

a matter of law.”

II.

By reversing the district court’s summary judgment, the

court of appeals decided this case in a manner which con-

flicts with the decisions of other courts of appeals on the

same matter.

While the opinion of the court of appeals is by no means

unambiguous, it must be inferred that the court concluded

that, at least under some circumstances, student financial

aid could constitute Federal financial assistance to a uni-

versity and its intercollegiate athletics program for pur-

poses of Title IX. This holding directly conflicts with the

decisions of the courts of appeal for the First and Sixth

Circuits in Rice and Hillsdale College, supra.

Moreover, the decision of the court of appeals conflicts

with the decisions of a number of district courts, with

respect to both the effect of student financial aid and the

effect of Federal aid for the purpose of facility construc-

tion and other non-athletic purposes. University of Rich-

mond v. Bell, supra; Othen v. Ann Arbor School Board,

507 F. Supp. 1376 (E.D.Mich. 1981), aff’d on other grounds,

F.2d (6th Cir., No. 81-1259, Feb. 2, 1983) ; Stewart

v. New York University, 430 F. Supp. 1305 (S.D.N.Y. 1976).

The significance of these district court decisions, and of the

conflict which exists between them and the court of appeals

below, lies in the fact that the Departments of Education

and Justice have evidently adopted the construction of

Title IX set forth in those cases, and presumably will

conform their conduct regarding enforcement of Title IX

to those decisions. The decision of the court of appeals

thus coiflicts with the construction of Title IX adopted

by the agencies of the United States government charged

with the enforcement of that statute. Certiorari should be

granted in order to resolve these conflicts.

CONCLUSION

This Court’s decision in North Haven leaves significant

questions unanswered. The resolution of those questions

will determine the degree to which the Federal government

may exercise control over education programs at most

colleges and vniversities in the nation. Those questions

embrace significant issues of Federal law upon which

there is no unanimity of decision among the lower courts.

A writ of certiorari should be granted in this case in order

to settle these issues, and in order to resolve the conflict

between the decision of the court of appeals below and the

decisions of other courts which have considered these issues.

Respectfully submitted,

Aan B~loxes

Counsel of Record

Hariow Sprovse

Unxperwoop, Witsox, Berry,

Stems & Jonnsonx

P. O. Box 9158

Amarillo, Texas 79105

(806) 376-5613

Attorneys for Petitioners

CERTIFICATE OF SERVICE

This is to certify that, on the = day of April, 1983,

three copies of the foregoing Petition for a Writ of Certi-

orari to the United States Court of Appeals for the Fifth

Cireuit were served upon Respondents by placing the same

in the United States mails, certified mail, postage prepaid,

addressed to their attorneys of record as follows:

Ms. Margaret Kohn

Ms. Marcia D. Greenberger

Ms. Nancy Duff Campbell

National Women’s Law Center

1751 N Street, N.W.

Washington, D.C. 20036

Ms. Betty Wheeler

Hoffman & Wheeler

1008 S. Madison

Amarillo, TX 79101

ro.

APPENDIX A

UNITED STATES COURT OF APPEALS

POR THE FIFTH CIRCUIT

NO. 81-1398 gp

TINA BENNETT, et al.,

Plaintiffs-Appellants

versus

WEST TEXAS STATE UNIVERSITY, et al.,

De fendants-Appellees

Appeal from the United States District Court

For the Northern District of Texas

( January 31, 1983 )

Before GARZA, TATE and WILLIAMS, Circuit Judges.

PER CURIAM:

This appeal challenges a summary judgment of dismissal in a

class ac:ion charging sex discrimination in the intercollegiate

athletics program at West Texas State University. Plaintiffs

alleged in their complaint that Title IX of the Education Amendments

APPENDIX A

of 1972, 20 U.S.C. § 1681 et seq., was violated by the various

policies and practices which discriminate against women by denying

them equal opportunity in the university intercollegiate athletics

program.

r—

Title IX provides:

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. § 1681. After this general prohibition come

nine exceptions to coverage, none of which are relevant

to the instant case.

“It is undisputed that West Texas State University receives a

great deal of federal money. The dispute in this case centers around

the exact type of federal financial assistance which triggers the

provisions of Title IX. There are two theories on this issue, as

the district court recognized in its opinion.

The Defendants have argued that the exact language

of Title IX itself is controlling and, thus, that

only if an athletic program or activity directly

receives federal financial assistance must there

be no discrimination. This is what has been referred

to as the “programmatic approach.” Plaintiffs

assert, to the contrary, that what is prohibited

is “institutional” discrimination, i.e., that if an

institution receives federal funds, then there

may not be any discrimination in any of its programs

or activities, regardless of whether that program

or activity itself receives the federal aid. This

is the approach taken by the regulations.

Record on Appeal, vol. 2, at 343-44.

APPENDIX A

The court below ruled adversely to plaintiffs, holding first

that the institutional approach was invalid and second, that the

plaintiffs had not demonstrated receipt of the "direct" funds

necessary to trigger Title IX under the programmatic approach.

Without anticipating the decision of the Fifth Circuit on these

issues, we simply hold today that the plaintiffs must be permitted

to present a case on the receipt of direct funds by the athletics

Gepartment. Plaintiffs contend that the athletics program does

indeed receive direct funds including work-study employment

assistance to students who are employed in the athletics department,

compulsory student fees which support the athletics program and

subsidized housing for athletes. At this point in the development

of the case, plaintiffs have not been allowed to make a record of

the direct funding that comes to the athletics department from the

sources they identified. They must be permitted to do so. In

addition, they should be permitted to demonstrate the sex

discrimination which allegedly exists in the intercollegiate

athletics program.

For the foregoing reasons, we reverse and remand for further

consideration consistent with this opinion.

REVERSED AND REMANDED.

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APPENDIX B

BENNETT v. WEST TEXAS STATE UNIVERSITY 77

Cite as S25 F Supp. 77 (1981)

channel when part of the reservation was

allotted in 1886 was added to the riverbed

by a semes of accretive changes between

1886 and the late 1940's and therefore was

added to the Tribe's ownership of the bed

Ghione v. Washington, supra.

(22) 23. Movement of the river channe!

by the Army Corps of Engineers, described

in finding 17 above, constitutes an avulsive

change under Washington law. Harper +

Holston, supra, Ghione v. Washington, su-

pra; Rose v. Riedinger, 13 Wash.App. 222.

$34 P.2d 146 (Wn.CtApp.1975); Parker v

Farrell, 74 Wash.2d 553, 445 P.2d 620 (1968)

(23) 24. Under Washington law, when

the bank of a river forms the boundary

between two property owners, an avulsive

change in the mver channe! does not affect

the boundary. Harper v. Holston, supra:

Parker v. Farrell, supra.

(24] 25. When artificial relocation of a

mver channel leaves portions of the former

channel abandoned as dry land, the owner

of the river bed retains ownership of the

abandoned channe! under Washington law

The owner of property adjacent to the

abandoned channel does not receive title.

Hill v. Newell, 8 Wash. 227, 149 P. 951

(1915); Commercial Waterway District +

Washington, 50 Wash.2d 335, 311 P.2d 680

(1957); Ghione v. Washington, supra.

[25] 26. The United States did convey

the beneficial ownership of the Puyallup

riverbed, within the boundaries of the Pu-

yallup Reservation, to the Puyallup Indians

by the Treaties of 1854-1855 and the Exec-

utive Order of January 27, 1857.

27. The United States continues to hold

the property at issue herein in trust for the

use and benefit of the Puyallup Tribe.

2. Title to the bed of the Puyallup riv-

er, within the exterior boundaries of the

Puyallup Reservation, did not pass to the

State of Washington when it became a

State of the Union in 1889.

2. Plaintiffs petition for Declaratory

Judgment Quieting Title to the bed of the

Puyallup River as to those parcels of rea!

property herein described, is GRANTED.

Tina BENNETT, et al.

WEST TEXAS STATE UNIVERSITY,

et al.

Civ. A. No. CA2-80-0073-F.

United States District Court,

N. D. Texas,

Amanilo Division

July 27, 1981.

Plaintiffs, female students at state uni-

versity who participated in university's in-

tercollegiate athletics program brought suit

against university and various individuals

responsible for administration of universi-

ty’s intercollegiate athletics program and

other university affairs, contending that

certain policies and practices violated Title

IX of the Education Amendments of 1972

and regulations promulgated thereunder.

The District Court. Robert W. Porter, J.,

held that: (1) Title IX governs program if

that specific program receives federal fi-

nancial assistance, and to the extent that

federal regulations attempted to apply

strictures of Title IX on institutional basis,

regulations were invalid, and (2) type of

indirect aid received by university athletic

program did not bring them within ambit

of Title IX.

Summary judgment for defendants.

1. Civil Rights o=9.5

Title IX of the Educa.ion Amendments

of 1972 and regulations prom..gated there-

under apply only to specific programs or

activities which receive direct federa! finan-

cial assistance; to the extent that regu!-

tions attempt to apply strictures of Title IX

on an institutional basis, regulations are

invalid. Education Amendments of 1972,

$§ 901 et seq.. 902, 904, DB USCA §$§ 1681

et seq., 1682, 1684.

APPENDIX B

78 525 FEDERAL SUPPLEMENT

2. Civil Rights o=9.5

Type of indirect aid received by state

university athletic program did not bring

them within ambit of Title IX of the Edu-

cation Amendments, despite contention that

athletic programs received funds that

would otherwise have been diverted with-

out the infusion of federal monies. Educa-

tion Amendments of 1972, §§ 901 et seq.,

902, 904, 20 U.S.C.A. §§ 1681 et seq., 1682,

1634.

Betty Wheeler, Hoffman, Steeg & Wheel-

er, Amarillo, Tex., for plaintiffs.

Alan B. Jones and Harlow Sprouse, Un-

derwood, Wilson, Berry, Stein & Johnson,

Amarillo, Tex., Edna 1. Ramon, Asst. Atty

Gen., Austin, Tex., for defendants.

MEMORANDUM ORDER GRANTING

SUMMARY JUDGMENT

ROBERT W. PORTER, District Judge.

The named Plaintiffs in this action are

six female students at West Texas State

University in Canyon, Texas, who partici-

pate in the University’s intercollegiate ath-

letics program. The Defendants are the

University as well as various individuals

who are responsible for the administration

of the University’s affairs, including but

not limited to the intercollegiate athletics

program.

The Plaintiffs, on behalf of themselves

and as representatives of the class that has

heretofore been certified, have alleged that

the Defendants maintain various policies

and practices which discriminate against

women on the basis of sex and which deny

women equal opportunity in the Universi-

ty’s intercollegiate athletics program. The

Plaintiffs contend shat such policies and

practices have had the 2‘*ect of excluding

Plaintiffs from full participation in, deny-

ing Plaintiffs the benefits of, and subject-

ing Plaintiffs to discrimination in an athiet-

i¢ program or activity receiving fecerai fi-

nancial assistance, and thus that such poli-

cies and practices are in violation of Title

IX of the Education Amendments of 1972,

20 U.S.C. § 1681 et seq. (hereinafter Title

IX) and the regulations promulgated there-

under, 34 C.F.R § 106.1 et seg. (originally

codified at 45 C.F.R. § 86.1 et seq.).

It is the Defendants’ position that the

intercollegiate athletics program does not

receive federal financial assistance, and

therefore that the program is outside the

scope of Title IX. The Defendants also

contend that, to the extent the referenced

regulations purport to apply to the Univer-

sity'’s intercollegiate athletic program irre-

spective of the absence of direct federal

financial assistance to that specific pro-

gram, those regulations are beyond the

statutory authority granted under Title IX

and are invalid.

The Defendants have filed a motion for

summary judgment, to which the Plaintiffs

have duly responded. After hearing and

careful consideration of the briefs and ar-

guments of counsel, | am of the opinion, for

the reasons set out below, that the Defend-

ants are entitled to summary judgment as a

matter of law

The portion of Title IX at issue here is

Section 901 of the Education Amendments

of 1972, 20 U.S.C. § 1681, which provides in

pertinent part, that

(a) No person in the United States shall,

on the basis of sex, be excluded from

participation in, be denied the benefits of.

or be subjected to discrimination under

any education program or activity receiv-

ing federal financial assistance

The regulations, 34 C.F.R. § 106.1, which

have been promulgated by the Department

of Education pursuant to Title IX, provide

as follows:

(a) General. No person shall, on the ba-

sis of sex, be excluded from participation

in, be denied the benefits of, be treated

differently from another person or other-

wise be discriminaved against in any in-

tercollegiate, club, or intramural athletics

offered by a recipient, and no recipient

shall provide any such athletics separate-

ly on such basis. (emphasis added).

APPENDIX B

BENNETT v. WEST TEXAS STATE UNIVERSITY 79

Cite as S25 F Supp. 77 (1981)

The resolution of Defendants’ motion for

summary judgment is dependent upon the

meaning and effect of these two provisions

and their relationship to one another. The

Defendants have argued that the exact lan-

guage of Title IX itself is controlling and,

thus, that only if an athletic program or

activity directly receives federa! financial

assistance must there be no discrimination

This is what has been referred to as the

“programmatic approach.” Plaintiffs as-

sert, to the contrary, that what is prohibited

is “institutional” discrimination, i. e., that if

an institution receives federal funds, then

there may not be any discrimination in any

of its programs or activities, regardiess of

whether that program or activity itself re-

ceives the federal aid. This is the approach

taken by the regulations.

An examination of the various sections of

Title IX indicates that the drafters of this

legislation were very aware of the distinc-

tion between the programmatic and institu-

tional approaches. For exampie, 20 U.S.C

§ 1682, the provision by which the agency

and the courts are to determine the permis-

sible scope of any regulations instituted to

effectuate Title IX, limits the agency's au-

thority to promulgate rules and regulations

to include only those programs or activities

receiving federa! financial assistance.

Each federa! department which is

empowered to extend Federal financia!

assistance to any education program or

activity is authorized and directed to

effectuate the provisions of section 1681

of this title with respect to such program

or activity by issuing rules, regulations,

or orders. (emphasis added).

(1) Section 1682 also contains an en-

forcement provision which provides for ter-

mination of federa! financia! assistance,

which is limited to particular programs or

activities which receive federa) funds.

These provisions obviousiy embody a pro-

grammatic approach and should be con-

trasted with the institutional approach used

elsewhere in the same title 20 USC.

§ 1684, dealing with impaired vision, states

that:

No person in the United States shall, on

the ground of blindness or severely im-

paired vision, be denied admission in any

course of study by a recipient of Federal

financial assistance for any education

program or activity. (emphasis added).

The precise selection of the terms “pro-

grams” and “recipient” throughout the var-

ious sections of Title IX evidence the clear

intent of Congress that Sections 1681 and

1682 and the regulations thereunder apply

only to specific programs or activities which

receive direct financial assistance.

A review of the lemsiative background of

Title IX supports this conclusion. The orig-

ina! Senate version of Title IX was institu-

tional! in nature. It provided that

No person in the United States shall, on

the ground of sex. be excluded from par-

ticipation in, be denied the benefits of, or

be subjected to discrimination under any

program or activity conducted by a public

institution which is a recipient of Federal

financial assistance for any education

program or activity

117 Cong. Rec. 30156 (1971). This version of

Title IX was subsequently rejected and in

its stead the present program specific ver-

sion was enacted. Again, this is clear evi-

dence of the intent of Congress to limit the

scope of Title IX.

The courts which have grappled with this

issue have ruled consistently with the Con-

gressiona! interpretation. Most persuasive

to this Court in the Fifth Circuit's holding

in Dougherty County Schoo! System v. Har-

ris, 622 F.2d 735 (Sth Cir. 1980). In that

case the Secretary of Health, Education and

Welfare had promulgated regulations which

prohibited any school receiving federal fi-

nancial assistance from engaging in sexual

discrimination in employment practices.

The regulations were not limited to those

employees who were compensated vut of

federal funds or who worked in prograns

receiving federal assistance, but they ap-

plied to all employees of the entire school

system so long as any program or activity

of the school received federa! financia! as-

sistance. The court found the regulations

invalid, emphasizing that:

APPENDIX B

80 525 FEDERAL SUPPLEMENT

(w]e cannot find sanction in the statute

for this conclusion that any discrimina-

tion in an entire school system so taints

the system as to permit termination of all

federal aid even though federally assisted

programs are administered impeccably.

The regulations attempt to regulate sex

discrimination in employment practices

generally rather than in connection with

specific programs receiving federal funds.

The statute itself indicates that such reg-

ulations sweep too broadly Further

evidence that the regulations must be

keyed to a specific program is found in

the enforcement provisions.

622 F.2d at 737. Accord, Seattie University

v. Department of Health, Education and

Welfare, 16 F.E.P. 719 (W.D.Wash.1978),

aff'd 621 F.2d 992 (9th Cir. 1980), cert

granted sub. nom. United States Depart-

ment of Health, Education and Welfare v

Seattle University, 449 U.S. 1009, 101 S.Ct.

563, 66 L.Ed.2d 467 (1981); Romeo Commu-

nity Schools v. Department of Health, Edu-

cation and Welfare, 438 F Supp. 1021 (E.D

Mich.1977), aff'd, 600 F.2d 581 (6th Cir.),

cert. denied 444 U.S. 972, 100 S.Ct. 467, 62

L.Ed.2d 388 (1979); Junior College District

of St. Louis v. Califano, 597 F.2d 119 (8th

Cir.), cert. denied 44 U.S. 972, 100 S.Ct.

467, 62 L.Ed.2d 388 (1979); Is/esboro Schoo!

Committee v. Califano, 593 F.2d 424 (1st

Cir.), cert. denied 444 U.S. 972, 100 S.Ct.

467, 62 L.Ed.2d 387 (1979). The Fifth Cir-

cuit's determination that Title IX governs

the conduct of a program only if that spe-

cific program receives Federal financial as-

sistance is binding on this court.' The clear

language of Title IX and the intent of

Congress require that the Act be applied

1. Most of the cases interpreting Title (X have

ansen in the context of challenges to regula-

uons under Title IX relating to employment

discrimination. | am aware of only one other

court that has been directly confronted with

the difficult and sensitive task of applying Title

IX and its regulations to a school's athletic

programs. Othen v. Ann Arbor School Board.

507 F Supp. 1376 (E.D. Mich. 1961). Judge Join-

er's analytical opinion cogently addresses is-

Sues identical to ones raised in the case at bar.

and | unreservedly endorse his reasoning and

holding.

programmatically. To the extent that the

regulations attempt to apply the strictures

of Title IX on an institutional basis, the

regulations are invalid.

Ill.

(2) Although I have held that Title IX is

applicable only to those specific programs

and activities which receive direct federal

assistance, Plaintiffs contend that there is a

genuine issue of fact as to whether the

University’s athletic programs receive di-

rect federal aid. Clarence E. Thompson,

the Business Manager and Chief Financial

Officer of West Texas State University, has

submitted an affidavit which asserts that

the intercollegiate athletics program main-

tained by the University does not receive

any direct financial assistance of any na-

ture from the federal government. The

Plaintiffs argue, however, that various dep-

ositions taken in the case reflect that the

athletic programs benefit from the fact

that students receive veteran's benefits, Ba-

sic Educational Opportunity Grants, federal

work-study program benefits and other fed-

eral financial aid. Plaintiffs also assert

that the university receives federal aid for

building dormitories and dining halls which

particularily benefit athietes. Plaintiffs’

contention is, in essence, that the athletic

programs of the University are directly

benefited by federal financial assistance be-

cause those programs receive funds that

would otherwise be diverted without the

infusion of federal monies.

Plaintiffs’ argument that such aid consti-

tutes a direct benefit to the athletics pro-

grams is not weill-taken. All the types of

federal aid enumerated by the Plaintiffs

Of partucular import to my holding here is

Judge Joiner's analysis of the relationship be-

tween Title IX and Title V1 of the Civil Rights

Act of 1964. While recognizing that the Su-

preme Court has heid in Cannon v. Uni

of Chicago, 441 U.S. 677, 99 S.Ct 1946, 60

LEd.2d 560 (1979), that Title IX is to be con-

strued in accordance with Titie V1, Judge Join-

er relied heavily on Board of Public Instruction

of Taylor County v. Finch, 414 F.2d 1068 (Sth

Cir. 1969), in holding that Title [X is program-

matic in nature. Finch, which heid that Title

V1 is programmatic in nature, is of course bind-

ing authority on this Court.

APPENDIX B

GREEN v. WHITE 81

Cite as 525 F.Supp. 81 (1981)

are genera! and nonspecific, and such aid is

indirect by nature. The type of assistance

relied on by Plaintiffs results in some bene-

fit, however remote and indirect, to every

program at West Texas State University

Were the Court to adopt Plaintiffs’ argu-

ment, the programmatic construction of Ti-

tle IX would be rendered nugatory, because

every program or activity at the university

would be subject to Title IX. The Act itself

compels a different conclusion. In order

for the strictures of Title IX to be trig-

gered, the federa! financia! assistance must

be direct. Othen v. Ann Arbor Schoo!

Board, 507 F.Supp. 1376 (E.D.Mich.1981);

Stewart v. New York University, 430

F.Supp. 1305 (S.D.N.Y.1976). The type of

indirect aid received by the University ath-

letic programs does not bring them within

the ambit of Title IX

Therefore, in accordance with the forego-

ing opinion, it is

ORDERED that Defendants motion for

summary judgment be and hereby is in al!

things GRANTED.

Clovis Carl GREEN, Jr. Plaintiff,

Carl WHITE, etc., Defendant.

No. 781144C(2).

United States District Court,

E. D. Missouri, E. D.

Aug. 10, 1981.

Action was brought against superin-

tendent at state training center for men on

ground that he had violated rights of indi-

vidual! plaintiff, and all members of specific

church, to exercise their religious beliefs.

The United States District Court for the

Eastern District of Missouri, John F. Nan-

gie, J., dismissed complaint as frivolous, and

appeal was taken. The Court of Appeals,

605 F.2d 376, affirmed in part, reversed in

part and remanded. Upon remand, the Dis-

trict Court found that complaint was mali-

cious and dismissed it, and appeal! was again

taken. The Court of Appeals, 628 F.2d

1126, reversed and remanded with di-

rections. On remand, the District Court,

Nangle, J., held that where prison officials

believed that prisoner's religion was sham

and bogus religion concocted by prisoner for

sole purpose of extracting from prison offi-

cials privileges not available to general pris-

on population, former prisoner failed to

prove that prison officials did not act in

good faith in connection with prisoner's reli-

gion and action would be dismissed due to

frivolous and mulicious nature of litigation.

Dismissed.

1. Civil Rights o13.8(1)

Prisoner may recover damages against

prison officials entitled to qualified immuni-

ty only if he or she can show that officials

acted in bad faith or that prison officials

took action that they knew or should have

known violated prisoner's constitutional

rights. 42 U.S.C.A. § 1983.

2. Prisons @4(14)

There is no constitutional right for

prisoner to devise a religion in order to

obtain concessions from prison officials.

3. Civil Rights o13.4(6)

Where prison officials believed that

prisoner's religion was sham and bogus reli-

gion concocted by prisoner for sole purpose

of extracting from prison officials privileg-

es not available to general prison popula-

tion, former prisoner failed to prove prison

officials did not act in good faith in connec-

tion with prisoner's religion and, thus, pris-

oner could not recover damages from prison

officials. 42 U.S.C.A. § 1983.

4. Federal Civil Procedure 1788.10

Where prisoner claiming interference

with his religion was unable to offer any

APPENDIX C

United States Court of Appeals

FOR THE FIFTH CIRCUIT

—

No. 81-1398

D. C. Docket No. CA-2-80-73

TINA BENNETT, ET AL.,

Plaintiffs-Appellants,

versus

WEST TEXAS STATE UNIVERSITY,

ET AL.,

De fendants-Appellees.

Appeal from the United States District Court for the

Northern District of Texas

Before GARZA, TATE and WILLIAMS, Circuit Judges.

SUDGMNENT

This cause came on to be heard on the record on appeal

and was argued by counsel;

ON CONSIDERATION WHEREOF, It is now here ordered and

adjudged by this Court that the judgment of the said District

Court in this cause be, and the same is hereby’, reversed; and that

this cause be and the same is hereby remanded to the said District

Court in accordance with the opinion of this Court;

IT IS FURTHER ORDERED that defencants-appellees pay to

plaintiffs-appellants the costs on appeal, to be taxed by the Clerk

of this Court.

January 31, 1983

ISSUED AS MANDATE:

MAR 26 1y63 gg

APPENDIX D

U.S. COURT OF APPEALS

UNITED STATES COURT OF APPEALS FES 23 1983

FOR THE FIFTH CIRCUIT SEN fC

NO. 81-1398 BDO NOT PUeLisH

TINA BENNETT, et al.,

Plaintiffs-Appellants

versus

WEST TEXAS STATE UNIVERSITY, et al.,

De fendants-Appellees

Appeal from the United States District Court

For the Northern District of Texas

( FEBRUARY 23, 1983 )

ON PETITION FOR REHEARING

Before GARZA, TATE and WILLIAMS, Circuit Judges.

PER CURIAM:

In our prior unpublished opinion in this action, we reversed

the grant of summary judgment and ordered the district court to

permit plaintiffs to make a record of the direct funding that comes

APPENDIX

to the athletics department from the sources previously identified

by plaintiffs.

We also ruled that "[iJn addition, they should be

permitted to demonstrate the sex discrimination which allegedly

exists in the intercollegiate athletics program.”

we withdraw that sentence from the opinion. In all other respects,

the rehearing is denied.

DENIED.

A true copy

Test CILBCRT F. GANUCHEAU

Clerk US. nego of Appecis, Fiith Circuit

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On rehearing,

PD LOCAL

¥ OF THE

Sec.

1681.

1682.

1683.

1684.

1685.

1686.

§ 1

APPENDIX E

CHAPTER 38—DISCRIMINATION BASED ON SEX

Sex.

OR BLINDNESS

(a) Prohibition against discrimination; exceptions.

(1) Classes of educational institutions subject to pro-

hibition.

(2) Educational institutions commencing planned

change in admissions.

(3) Educational institutions of religious organiza-

tions with contrary religious tenets.

(4) Educational institutions training individuals for

military services or merchant marine.

(5) Public educational institutions with traditional

and continuing admissions policy.

(6) Social fraternities or sororities; voluntary youth

service organizations.

(7) Boy or Girl conferences.

(8) Father-son or mother-daughter activities at ed-

ucational institutions.

(9) Institution of higher education scholarship

awards in “beauty” pageants.

(b) Preferential or disparate treatment because of im-

balance in participation or receipt of Federal! bene-

fits; statistical evidence of imbalance.

(ce) Educational institution defined.

Federal administrative enforcement; report to congressional

committees.

Judicial review.

Blindness or visual impairment; prohibition against discrim-

ination.

Authority under other laws unaffected.

Interpretation with respect to living facilities.

681.

Sex

Prebibition against discrimination; exceptions

(a) No person in the United States shall, on the basis of sex, be

excluded from participation in, be denied the benefits of, or be sub-

jected to discrimination under any education prograr or activity re-

ceiving Federal financial assistance, except that:

Classes of educational institutions subject to probibition

‘l) in regard to admissions to educational institution., vais

section shall apply only to institutions of vocational education,

APPENDIX E

20 § 1681 EDUCATION Ch. 38

professional education, and graduate higher education, and to

public institutions of undergraduate higher education;

Educational institutions commenciag planned change in admissions

(2) in regard to admissions to educational institutions, this

section shall not apply (A) for one year from June 23, 1972, nor

for six years after June 23, 1972, in the case of an educational

institution which has begun the process of changing from being

an institution which admits only students of one sex to being an

institution which admits students of both sexes, but only if it is

carrying out a plan for such a change which is approved by the

Commissioner of Education or (B) for seven years from the

date an educational institution begins the process of changing

from being an institution which admits only students of only

one sex to being an institution which admits students of both

sexes, but only if it is carrying out a plan for such a change

which is approved by the Commissioner of Education, whichever

is the later;

Educational institutions of religious organizations with

coatrary religious tenets

(3) this section shall not apply to an educational institution

which is controlled by a religious organization if the applica-

tion of this subsection would not be consistent with the reli-

gious tenets of such organization;

Educational institutions training individuals for

military services or merchant marine

(4) this section shall not apply to an educational institution

whose primary purpose is the training of individuals for the

military services of the United States, or the merchant marine;

Public educational institutions with traditional and

continuing admissions policy

(5) in regard to admissions this section shall not apply to

any public institution of undergraduate higher education which

is an institution that traditionally and continually from its es-

tablishment has had a policy of admitting only students of one

sex;

Secial fraternities or sororities; voluatary youth service organisations

(6) this section sha'l not apply to membership practices—

(A) of a social frate-nity or social sorority which is ex-

empt from taxation under section 501(a) of Title 26, the ac-

tive membership of which consists primarily of students in

attendance at an institution of higher education, or

(B) of the Young Men's Christian Association, Young

Women's Christian Association, Girl Scouts, Boy Scouts,

APPENDIX E

Ch. 38 DISCRIMINATION 20 § 1681

Camp Fire Girls, and voluntary youth service organizations

which are so exempt, the membership of which has tradi-

tionally been limited to persons of one sex and principally

to persons of less than nineteen years of age;

Bey or Girl conferences

(7) this section shall not apply to—

(A) any program or activity of the American Legion un-

dertaken in connection with the organization or operation

of any Boys State conference, Boys Nation conference,

Girls State conference, or Girls Nation conference; or

(B) any program or activity of any secondary school or

educational institution specifically for—

(i) the promotion of any Boys State conference,

Boys Nation conference, Girls State conference, or Girls

Nation conference; or

(ii) the selection of students to attend any such con-

ference;

Father-son or mother-daughter activities at educational institutions

(8) this section shall not preclude father-son or mother-

daughter activities at an educational institution, but if such ac-

tivities are provided for students of one sex, opportunities for

reasonably comparable activities shall be provided for students

of the other sex; and

Institution of higher education scholarship awards in “beauty” pageants

(9) this section shall not apply with respect to any scholar-

ship or other financial assistance awarded by an institution of

higher education to any individual because such individual has

received such award in any pageant in which the attainment of

such award is based upon a combination of factors related to

the personal appearance, poise, and talent of such individual

and in which participation is limited to individuals of one sex

only, so long as such pageant is in compliance with other non-

discrimination provisions of Federal law.

Preferential or disparate treatment because of imbalance ia

participation or receipt of Federal benefits:

statistical evidence of imbalance

; (b) Nothing contained in subsection (a) of this section shall be

interpreted to require any educational institution to grant preferential

or disparate treatment to the members of one sex on account of an

imbalance which may exist with respect to the total number or per-

centage of persons of that sex participating in or receiving the ben-

efits of any federally supported program or activity, in comparison

with the total number or percentage of persons of that sex in any

APPENDIX E

20 § 1681

community, State, section, or other area: Provided, That this sub-

section shall not be construed to prevent the consideration in any

hearing or proceeding under this chapter of statistical evidence tend-

ing to show that such an imbalance exists with respect to the partici-

pation in, or receipt of the benefits of, any such program or activity

by the members of one sex.

EDUCATION Ch. 38

Educational institution defined

(¢c) 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 department which are administratively

separate units, such term means each such school, college, or depart-

ment.

Pub.L. 92-318, Title IX, § 901, June 23, 1972, 86 Stat. 373; Pub.L.

93-568, § 3(a), Dec. 31, 1974, 88 Stat. 1862; Pub.L. 94-482, Title IV,

§ 412(a), Oct. 12, 1976, 90 Stat. 2234.

Historical Note

“The provisions of the amendment made

by subsection (a) (amending this section)

References in Text.

ferred to in subsecs. (b) and ic), was io

This chapter, re.

the original ‘this titie’. meaning Title

IX of Pub.L. 92-318 which enacted this

cbapter and amended sections 203 and 213

of Tithe 2, Labor. and sections 2000c,

2000c-6, 2000c-9, and 2000h-2 of Title 42,

The Public Health and Welfare. For

complete classification of Title IX to the

Code, see Tabies volume.

1976 Amendment. Subsec (a). Pub.L.

9-482 in par. (6) substituted “this for

“This”, and added pars. (7) to (9)

1974 Amendment. Subsec. (a). Pubd.L.

93-568 added par. (6)

Effective Date of 1976 Amendment.

Pubd.l. 9-482. § 412(b). provicled that:

“The amendment made ty subsection (a)

{to this section; shall take effect upon

the date of enactment of this Act [Oct

12. 1976)."

Effective Date of 1974

Pud.L. 93-568. § Sib),

Amendment.

Provided that

shall be effective on, and retroactive to,

July 1, 1972."

Regulations; Nature of Particular

Sperts; Intercollegiate Athietic Activi-

tles. Pub. 93-380, Title VIII, § Si,

Aug. 21, 197%, 88 Stat. 612, provided that

the Secretary prepare and publish, not

more than 30 days after Aug. 21, 1974,

proposed regulations implementing the

provisions of this chapter regarding pro-

hibition of sex discrimination in federaily

assisted programs, including reasonabie

regulations for intercollegiate athletic ac-

tivities considering the nature of the par-

ticular sports.

Legisiative Histery. For legislative

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

1972 U.S.Code Coag. and Adm.News, p.

2462. See, also. Pub.L. 93-368 1974 U.S.

Code Cong. and Adm.News, p. 6779:

Pub.L. 9482. 1976 U S.Code Cong. and

Adm.News, p. 4713.

Library References

Drugs and Narcotics G=9

C.J.8. Drugs and Narcotics §§ 20, 21.

Code of Federal Regulations

Application,

Improvement of post secondary education, see 45 CFR 1501.2.

National Iastitute of Education programs, see 45 CFR 1400.2.

Veterans cost-of-instruction payments to institutions of higher education, see

45 CFR 199.4.

Policies and procedures, see 45 CFR 86.1 et seq.

APPENDIX E

Ch. 38

DISCRIMINATION

20 § 1682

Notes of Decisions

Activities net within section 3

Activities within section 2

Exhaustion of administrative remedies 5

Private right of action 4

Purpece 1

1. Purpece

Under this section, congressional intent

was to eradicate sex discrimination in

noareligious, nonmilitary, coeducational

programs, jacluding. but aot limited to.

sex discrimination in employment io edu-

cational activities. Plascik v. Cleveland

Museum of Art, D.C.Ohio 197, 428 F

Supp. 779.

2. Activities within section

Had advanced or college preparatory

courses been offered in each high school.

rather than in a separate high school,

and had school authorities requirec high-

er academic standing of girls for admis-

sion to such course, such standards

would have been illegal discrimination oo

the basis of sex. Berkelman v San

Francisco Unified School Dist. C.A.Cal.

1974, S01 F.2d 12h.

Discrimisation in high schowl iater-

scholastic athletics constitutes discrimi.

nation in education within purview of

this section. Brenden vy. Iladependent

School Dist. 742, C.A.Minn.1973, 477 F.2d

1292.

Operation of art museum. which receir-

ed federal assistance for education pro-

gram it operated for school system aad

which operated library. slide. and teach-

ing facilities for 8 to 90 university stu-

dents. qualified as an educational activity

receiving Federal financial assistance

within meapiog of this section. Piascik

v. Cleveland Museum of Art. DC Ohio

1976, 426 F Supp. 779.

3% §6Aetivities net within section

Fact that high school grooming crie

prohibited «=.» male students from wear.

$ 1682.

ing hair helow the ear lobe or over the

collar did not constitute sex-hased dis-

crimination within meaning of this ~ec-

tion. Trent v. Perritt, D.C.Miss.1975, 391

F Supp. 171

4. Private right ef action

There exists an implied private right of

action for vindicating violations of this

section. Piascik v. Cleveland Museum of

Art. LD C.Ohio 1976. 426 F.Supp. 779.

For wost situations, this chapter is not

tu be interpreted as a grant of a private

right of action. Cape v. Tennessee Sec-

eadary School Athietic Ass'a. D.C.Tena.

1976, 424 F.Supp. 732.

Even if unavailability of administrative

remedies would entitle plaintiff student

to bring private action against university

to enforce provisions of this section,

plaintiff's action seeking review of uni-

versity's Jdecision denying plaintiff ad-

Mission to medical school, which also

sought mupey damages. was teyond

scope of its pruvisions and district court

could nut permit such expansion of stat-

utory coverage. Canaun v University of

Chicago. D.C.11.1976, 408 F Supp. 1257. af-

firmed S50 F 2d 1083.

This chapter did not authorise private

right of action by student against uni-

versity based upon its refusal to admit

her to its school of medicine on alleged

basis of her age. sex and lack of ad-

vanced degree. Id.

5S. Exhaustion of administrative remedies

Female bigh school student who sought

to challenge on equal protection grounds

promulgation and enforcement ty public

school officiais of special rules fur giris

basketball was sot entitied to relief un-

der this chapter where plaintiff student

had not pursued administrative remedies

within the Department of Health. Educa-

tion, and Welfare Cape v Tennessee

Secondary School Athietic Ass'n, D.C.

Tenn.1976, 424 F.Supp. 732.

Federal administrative enforcement; report to con-

gressional committees

Each Federal department and agency which is empowered to ex-

tend Federa! financial assistance to any education program or activ-

ity, by way of grant, loan, or contract other than a contract of in-

Surance or guaranty, is authorized and directed to effectuate the

APPENDIX E

20 § 1682 EDUCATION Ch. 38

provisions of section 1681 of this title with respect to such program

or activity by issuing rules, regulations, or orders of general appli-

cability which shall be consistent with achievement of the objectives

of the statute authorizing the financial 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.

Compliance with any requirement adopted pursuant to this section

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

continue assistance under such program or activity to any recipient

as to whom there has been an express finding on the record, after

opportunity for hearing, of a failure to comply with such require-

ment, but such termination or refusal shall be limited to the partic-

ular political entity, or part thereof, or other recipient as to whom

such a finding has been made, and shall be limited in its effect to

the particular program, or part thereof, in which such noncompli-

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

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

the department or agency concerned has advised the appropriate per-

son or persons of the failure to comply with the requirement and

has determined that compliance cannot be secured by voluntary

means. In the case of any action terminating, or refusing to grant

or continue, assistance because of failure to comply with a require-

ment imposed pursuant to this section, the head of the Federal de-

partment or agency shal! file with the committees of the House and

Senate having legislative jurisdiction over the program or activity

involved a full written report of the circumstances and the grounds

for such action. No such action shall become effective until thirty

days have elapsed after the filing of such report.

Pub.L. 92-318, Title IX, § 902, June 23, 1972, 86 Stat. 374.

Historical Note

Legislative History. For legisiative 1972 U.S.Code Cong. and Adm.News, p.

history and purpose of Pub.L. 92-318, see 2462.

§ 1683. Judicial review

Any department or agency action taken pursuant to section 1682

of this title shall be subject to such judicial review as may other-

wise be provided by law for similar action taken by such department

or agency on other grounds. In the case of action, not otherwise

subject to judicial review, terminating or refusing to grant or to

continue financial assistance upon a finding of failure to comply

with any requirement imposed pursuant to section 1682 of this title,

any person aggrieved (including any State or political subdivision

thereof and any agency of either) may obtain judicial review of

such action in accordance with chapter 7 of Title 5, and such action

APPENDIX E

Ch. 38 DISCRIMINATION 20 § 1685

shall not be deemed committed to unreviewable agency discretion

within the meaning of section 701 of that Title.

Pub.L. 92-318, Title IX, § 903, June 23, 1972, 86 Stat. 374.

Historical Note

Codification. “Section 1682 of this ti- Legisiative History. For legisiative

tle’. where first appearing. was substi- history asd purpose of Pub.L. 92-318, see

tuted for “section 1002° as conforming to 1972 U.S Code Cong. and Adm.News, p.

intent of Coogress as Publ) L. 92-318 was 2462

eoacted without any section 1002 anil

subsequent text refers to “section Sue".

codified as “section 1482 of this title”

West's Federal Forms

Enforcement and review of decisions and orders of administrative agencies, see § 851

et seq.

§ 1684. Blindness or visual impairment; prohibition against

discrimination

No person in the United States shall, on the ground of blindness

or severely impaired vision, be denied admission in any course of

study by a recipient of Federal financial assistance for any educa-

tion program or activity, but nothing herein shall be construed to

require any such institution to provide any special services to such

person because of his blindness or visual impairment.

Pub.L. 92-318, Title IX, § 904, June 23, 1972, 86 Stat. 375.

Historical Note

Legislative Uletery. For ilegisiative 1972 US Code Cong. and Adm News. p.

history and ourpose of Pub L. 92-318. see 2442.

§ 1685. Authority under other laws unaffected

Nothing in this chapter shall add to or detract from any existing

authority with respect to any program or activity under which Fed-

eral financial assistance is extended by way of a contract of insur-

ance or guaranty.

Pub.L. 92-318, Title IX, § 905, June 23, 1972, 86 Stat. 375.

Historical Note

References in Text. Ths chapter. re. sification of Title IX to the Code, see

ferred to in text was in the original Tabies rolume

this title’, meaning Title IX of Pub L

R318 which enactei this chapter and Keeiciative iletery. Fee legislative

amended sections 303 ani 213 of Ti history end purpose of Pub.L. 92-318. see

Labor, and sevens 2000e. s000e-4. ptm 1952 UsCode Cong. and Adm News, p.

% amd WOOh-2 of Title 42. The Pubic **

Health and Welfare. For complete clas-

APPENDIX E

20 § 1686

§ 1686.

EDUCATION

Ch. 38

Interpretation with respect to living facilities

Notwithstanding anything to the contrary contained in this chap-

ter, nothing contained herein shall be construed to prohibit any edu-

cational institution receiving funds under this Act, from maintain-

ing separate living facilities for the different sexes.

Pub.L. 92-318, Title IX, § 907, June 23, 1972, 86 Stat. 375.

Historical Note

References in Text. This chapter, re-

ferred to in text, was in the original

“this t'tle’, meaning Title IX of Pub.L.

92-318 which enacte| this chapter aod

amended sections 203 and 213 of Title 2,

Labor, and sections 2000c, 2000c-6, 2000c-

9. aad 2000h-2 of Title 42, The Public

Health and Welfare. For complete cias-

sification of Title IX to the Cole, see

This Act, referred to in text, is Pub.L.

92-318, June 23, 1972. 86 Stat. 235. kaown

as the Education Amendments of 1972.

For complete classification of this Act to

the Code. see Short Title note set out un-

der section 1001 of this title and Tables

volume

Legisiative History. For legislative

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

Tavies volume. 1972 US Code Cong. and Adm.News, p

2462.

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