Petition — Iron Arrow Honor Soc. v. Heckler

AMEXANDER 1. STEVAs

CLERK ‘

in the ie.

Supreme Court

of the

United States

October Term, 1983

IRON ARROW HONOR SOCIETY, a “tap” or

recognition association for men, et al.

Petitioners,

vs.

MARGARET M. HECKLER,

Secretary of the Department of Health

and Human Services, et al.

Respondents.

PETITION FOR A WRIT OF CERTIORARI TO

THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

JOSEPH P. KLOCK, JR.

Counsel of Record for Petitioners

Steel, Hector & Davis

1400 Southeast Bank Building

100 S. Biscayne Blvd.

Miami, Florida 33131

(305) 577-2877

QUESTION PRESENTED

Can a University be denied Title IX funding because

it allows an all-male honor society, which receives no

financial or other tangible assistance from the University,

to use campus facilities for its “tapping” ceremony?

TABLE OF CONTENTS"

Page

TABLE OF CITATIONS ii

OPINION BELOW ..... 1

JURISDICTION ...... 1

yg | 1

STATUTES INVOLVED 2

STATEMENT OF FACTS .. 5

REASON FOR GRANTING THE WRIT 13

I. The Appeals Court Has Ignored the

Program-Specific Limitation of Title IX . 13

II. The “Very Existence” of Iron Arrow on

the University Campus Does Not

Pervasively “Infect” or “Taint” Federally

Funded Programs............... 20

OO 29

*Pursuant to Rule 21(b) of the Rules of this Court, the parties

to the proceeding are Iron Arrow Honor Society (and its Chief);

University of Miami; and the Secretary of the Department of

Health and Human Services. Supporting the Secretary as amicus

below was the Women’s Commission of the University of Miami.

TABLE OF CITATIONS

Case Page

Grove City College v. Bell,

687 F.2d 684 (3d Cir. 1982), cert. —

75 L.Ed. 2d 429 (1983)....... .. 19-20

Hillsdale College v.

Department of Health Education and Welfare,

696 F.2d 418 (6th Cir. 1982)............... . 19

Iron Arrow Honor Society v. Heckler,

702 F.2d 549 (5th Cir. 1983).......... passim

North Haven Board of Education v. Bell,

SCR UD. BIR GU sence eke eecees passim

Othen v. Ann Arbor School Board,

507 F. Supp. 1276 (E.D. Mich 1981), aff'd.,

699 F.2d 309 (6th Cir. 1983)........... ues 19

Rice u President and Fellows of Harvard College,

663 F.2d 336 (1st Cir. 1981), cert. denied,

GOB UR. Se 6 ck eaw oes iwareece. 17-19

University of Richmond v. Bell,

543 F. Supp. 321 (E.D. Va. 1982) ......... nie

The Petitioner, Iron Arrow Honor Society

(hereinafter “Iron Arrow”) prays that a Writ of Certiorari

issue to review the judgment and opinion of the United

States Circuit Court of Appeals for the Fifth Circuit

entered in this cause on April 11, 1983.

OPINION BELOW

The opinion of the Circuit Court of Appeals for the

Fifth Circuit is reported at 702 F.2d 549. [A.1] The

opinion followed this Court’s Order of June 28, 1982

[A.50], vacating and remanding the 1981 opinion of the

Fifth Circuit in this cause, reported at 652 F.2d 445

(A.52], for further consideration in light of North Haven

Board of Education v. Bell, 456 U.S. 512 (1982).

JURISDICTION

The judgment of the United States Court of Appeals

for the Fifth Circuit was entered on April 11, 1983.

This petition was filed within ninety days of that date.

The jurisdiction of this Court is invoked under

Title 28, Sections 1331, 1681, 1682, United States Code

(1976), and Title 5, Section 72, United States Code

(1976), et. seq.

STATUTES INVOLVED

The following statutes and regulations are involved:

Title IX of the Education Amendment of 1976 §§901-02;

as codified in Title 20, sections 1681-82, United States

Code (1976):

20 U.S.C. §1681(aXc) 1976:

Prohibition 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 subjected

to discrimination under any education program

or activity receiving Federal financial assistance,

except that:

Social fraternities or sororities; voluntary youth

service organizations

(6) this section shall not apply to membership

practices —

(A) ofa social fraternity or social sorority

which is exempt from taxation under section

501(a) of Title 26, the active 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, Camp Fire Girls, and voluntary

youth service organizations which are so exempt,

the membership of which has traditionally been

limited to persons of one sex and principally

to persons of less than nineteen years of age.

20 U.S.C. §1682 (1976)

Federal administrative enforcement; report to

congressional committees

Fach 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, regulations,

or orders of general applicability 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 requirement, but such termination

or refusal shall be limited to the particular

political entity, or part thereof, or other recipient

as to whom such a finding has been made, and

shall be limited in its effect to the 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 concerned has

advised the appropriate person or persons of

the failure to comply with the requirement and

has determined that compliance cannot be

secured by voluntary means. In the case of

any action terminating, or refusing to grant or

continue, assistance because of failure to comply

with a requirement imposed pursuant to this

section, the head of the Federal department

or agency shall file with the committees of the

House and Senate having legislative jurisdiction

over the program or activity involved a full

written report of the circumstances and the

grounds for such action. No such action shall

become effective until thirty days have elapsed

after the filing of such report.

Code of Federal Regulation §86.31(a), (bX7)

Subpart D— Discrimination on the Basis of Sex

in Education Programs and Activities Prohibited

§86.31 Education programs and activities.

(a) General. Except as provided elsewhere

in this part, no person shall, on the basis of

sex, be excluded from participation in, be denied

the benefits of, or be subjected to discrimination

under any academic, extra-curricular, research,

occupational training, or other education

program or activity operated by a recipient

which receives or benefits from Federal financial

assistance. This subpart does not apply to actions

of a recipient in connection with admission of

its students to an education program or activity

of (1) a recipient to which Subpart C does not

apply, or (2) an entity, not a recipient, to which

Subpart C would not apply if the entity were a

recipient.

(b) Specific prohibitions. Except as

provided in this subpart, in providing any aid,

benefit, or service to a student, a recipient

shall not, on the basis of sex:

(7) Aid or perpetuate discrimination against

any person by providing significant assistance

to any agency, organization, or person which

discriminates on the basis of sex in providing

any aid, benefit or service to students or

employees.

STATEMENT OF TIIE FACTS

On June 23, 1972, “Title IX” (§901 of Public Law,

92-318, 86 Stat. 373) became effective. That law provides:

(a) No person in the United States shall, on

the basis of sex, be excluded from participatior

in, be denied the benefits of, or be subjected

to discrimination under any education program

or activity receiving Federal financial assistance

except that: . .

(6) this Section shall not apply to membership

practices —

(A) of a social fraternity or social sorority

which is exempt from taxation under section

501 (a) of Title 26, the active membership consists

primarily of students in an institution of higher

education, or

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

Young Women’s Christian Association, Girl

Scouts, Boy Scouts, Camp Fire Girls, and

voluntary youth service organizations which

are so exempt, the membership of which has

traditionally been limited to persons of one

sex and principally to persons of less than

nineteen years of age; ...

Title 20, section 1681, United States Code (1976).

Prior to any regulations being adopted by the

then Department of Health, Education and Welfare

(HIEW), it received a complaint against Iron Arrow for

discrimination against Indians in violation of Title VI

of the Civil Rights Act of 1964 and for discrimination

against women under Title IX. The university was

informed of this complaint, but before the end of the

year, the Indian charge was dropped, and Iron Arrow

was absolved of wrongdoing in that regard.

On May 24, 1976, the Office of Civil Rights (0.C.R.)

wrote to the president of the university, stating that

O.C.R. had concluded its investigation and had found a

Title IX violation:

It is undisputed that the University of Miami

receives Federal financial assistance in the

form of student aid and that the Iron Arrow

Honor Society does not admit women to

membership. Such facts indicate that the

University of Miami is in noncompliance with

Title IX if the University provides significant

assistance to Iron Arrow...

The assistance to Iron Arrow Honor Society

is of two types. First, Iron Arrow benefits

from recognition and identification with the

University, thereby enhancing its prestige.

Second, Iron Arrow benefits from tangible

support such as secretarial services, alumni

mailings, and the use of meeting rooms.

Accordingly, we are informing you that in order

for the University of Miami to fulfill its obligation

under Title IX, it must either require the Iron

Arrow Honor Society to eliminate its policy of

excluding women or discontinue its support of

the Iron Arrow Society.

Letter of William H. Thomas to Henry King Stanford,

May 24, 1976. (Emphasis supplied.) [A. 92-95].

The university requested additional time to respond,

which was granted on July 30, 1976, but in that

communication, O.C.R. changes its position:

We have reviewed Mr. John T. Benedict's

memorandum regarding changes in the

relationship between Iron Arrow Society and

the University. The memorandum does not

alter our findings set forth in our May 24, 1976

letter. There continues to be a significant

relationship between the Society and the

University for coverage of the society under

Title IX of the Educational Amendments of

1971.

Letter of William H. Thomas to Henry King Stanford,

July 30, 1976. (Emphasis supplied.) [A. 96}.

Mr. Thomas’ letter referred to the HEW regulations

allegedly implementing Title IX, which became effective

on July 21, 1975:

Except as provided in this subpart, in providing

any aid, benefits, or service to a student, a

recipient shall not, on the basis of sex:

(7) Aid or perpetuate discrimination

against any person by providing significant

assistance to any agency, organization, or

person which discriminates on the basis of

sex in providing any aid, benefit or service

to students or employees . . . (Emphasis

supplied)

45 C.F.R. §86.31(bX7).

The university asked for further time from O.C.R.

so as to continue in its efforts to encourage voluntary

compliance by Iron Arrow, but at the same time President

Stanford wrote to the “Iron Arrow Brothers” and said

that the university would comply with HEW'’s directive

and would refuse to “contest the action of HEW in the

Courts.”

Following an O.C.R. directive that “no Iron Arrow

Society functions, such as tapping take place until the

question of the University’s compliance is resolved,”

Iron Arrow filed its complaint in the United States

District Court for the Southern District of Florida. An

emergency hearing was held on its request for a

preliminary injunction, but it was denied. The society

then moved for a summary judgment. In its supporting

memorandum, a summary of the admissions and Wenials

contained by the defendants in their respective answers

was detailed, a part of which is set forth below:

That the plaintiff, Iron Arrow Honor Society

was founded in 1926 as a recognition society

to honor the University of Miami students,

faculty and alumni who have made outstanding

contr’>utions in leadership and services to

the University. That it was to be the “highest

honor attained by men.”

That the Iron Arrow was “chartered” by the

University of Miami and that the allegations

in the complaint concerning that chartering

are accurate.

That Iron Arrow is in fact a recognition

society rather than a traditional “honor”

society. That future membership is conditioned

on the unanimous approval of Iron Arrow

ve)

membership, based upon subjective standards

and not upon criteria developed by the

University or any outside agency.

The University of Miami admits to all of the

allegations of paragraph 6 in which the plaintiff

has traced its relationship with the university.

This includes the admission that the University

provides no financial assistance to Iron Arrow,

gives no special recognition to members of

Iron Arrow and that Iron Arrow receives no

other tangible support. The federal defendants

have, however, denied those specific allegations

while joining with the University or not

contesting that the standards for admission

to Iron Arrow are established by Iron Arrow,

not the University, that there is a voluntary

faculty advisor chosen by Iron Arrow not

the University, that support by the alumni

association for mailing, printing and posting

has been discontinued, that there has been

no secretarial support of Iron Arrow since

1973, that the Iron Arrow mailbox in the

Student Union Building has been eliminated,

and that “in brief, the plaintiff could ‘move

all activities off campus yet retain identical

prestige in the community’ with the exception

of the tapping (selection) ceremony.”

The Federal defendants admit and the

University claims no knowledge that the

10

regulations of defendant, HEW, do not purport

to extend control over groups or organizations

as to which a covered education institution

does not “provide significant assistance.

However, a non-exempt organization whose

membership was restricted to members of

one sex could adhere to its restrictive policies,

and operate on the campus of a recipient

University, if it receives no assistance from

the University.”

HEW fact sheet, June 1975, page 9. (R. at pp 66-70).

The federal defendants filed a cross-motion for

summary judgment. On May 24, 1977, the district judge

sua sponte dismissed the cause for lack of standing on

the plaintiffs part. An appeal was taken to the United

States Court of Appeals for the Fifth Circuit, which

reversed that ruling. Jron Arrow Honor Society v.

Califano, 597 F.2d 590 (5th Cir. 1979). The matter was

returned to the district court and transferred to a new

judge, who then considered the motion for summary

judgment.

The petitioner submitted additional testimony

through affidavit from the “Chief’ of the Iron Arrow

Tribe in support of its motion for summary judgment.

That affidavit set forth the extent to which the “significant

assistance” flowed from Iron Arrow to the university,

rather than from the university to Iron Arrow. Supplied

to the court at the same time was certain material from

HEW to concerned individuals around the country which

sets out some standards for determining when “significant

assistance” exists and highlight the continuing lack of

any guidelines for making such determination.

The United States District Court ruled against

Iron Arrow and upheld the agency's view that the

University provided “significant assistance” to Iron

Arrow. Iron Arrow Honor Society uv. Hufstedler, 499 F.

Supp. 496 (S.D. Fla. 1980), An appeal was taken, but the

Fifth Circuit affirmed. Jron Arrow Honor Society v.

Schweiker (I), 652 F.2d 445 (5th Cir. 1981). The Fifth

Circuit acknowledged that the only “support” given by

the University to Iron Arrow was allowing “use of the

mound in front of the student union building and the

statue there for ‘tapping’ for new members.” 652 F.2d

at 448. Nonetheless, the Fifth Circuit held that since

Iron Arrow is composed of members of the University

community, “Iron Arrow could not exist without the

University.” Therefore, the University could not receive

federal HEW funds if the University maintained any

“continued association” with Iron Arrow. /d.

In response to Iron Arrow’s petition for certiorari,

this Court vacated and remanded the Fifth Circuit

opinion for further consideration in light of North Haven

Board of Education v. Bell, 456 U.S. 512 (1982), which

had held that “an agency's authority under Title IX

both to promulgate regulations and to terminate fund

is subject to the program-specific limitation” of the

statute.

On remand, the Fifth Circuit, Judge Roney

dissenting, found that:

since ... the Supreme Court’s decision in

North Haven, because of its reliance upon Board

of Public Instruction v. Finch, not only permits

our approving the Secretary's actions, but

compels such a result, and because we also

find that the language of Title IX and its

legislative history support this conclusion, we

reinstate our prior decision in this case.

Iron Arrow (II), 702 F.2d at 565 [A.42]. Indeed in so

doing, the court held that Iron Arrow, “by its very

existence unavoidably and necessarily taints each and

every federally assisted program at the University.”

Iron Arrow (II) at F.2d at 564 [A.42]. Therefore, as the

Fifth Circuit sees it, any actions of the University

except expressions of outright hostility toward Iron

Arrow, a society which exists to support the University,

put the University at risk of loss of its federa! funding.

REASON FOR GRANTING

THE WRIT

I. The Appeals Court Has Ignored the Program-

Specific Limitation of Title IX,

This Court, in North Haven, established that the

plain language of Title IX means what it says: the

Statute only affects “programs” or “activities” which

receive federal funds. As this Court pointed out, “Congress

failed to adopt proposals that would have prohibited all

discriminatory practices of an institution that receives

federal funds.” The plain import of the legislative history

is that specific programs would be the target of Title

IX: perhaps the football program or hiring in the English

Department.

13

Regulation §86.31(b)(7), codified at 34 CFR

§106.31(b\(7), states:

Except as provided in this subpart, in providing

any aid, benefit, or service to a student, a

recipient shall not, on the basis of sex: aid or

perpetuate discrimination against any person

by providing significant assistance to any agency,

organization, or person which discriminates

on the basis of sex to providing any aid, benefit

or service to students or employees. (Emphasis

added).

The Fifth Circuit originally approved this regulation

in one or two sentences as “effectuating” the “objectives

of the statute.” Jron Arrow (J), 652 F.2d at 447. After

this Court vacated and remanded for consideration,

the Fifth Circuit, rather than reconsider, reaffirmed its

earlier conclusion even more briefly:

After careful study, we now determine that

the case law, including the North Haven decision,

strongly supports our prior conclusion that

Regulation 86.31(b\(7) is valid both on its face

and as applied.

Iron Arrow (II), 702 F.2d at 555. After finding that the

regulation effectuates the purpose of Title IX in

combatting discrimination, the Fifth Circuit then found

that the agency's application of the regulation in this

case was defensible. Somewhere along the trail, the

explicit limitation of Title IX to specific “programs” or

“activities” of a recipient was lost.

14

This Court held in North Haven not only that

termination of funds as a remedy was limited “to the

particular program, or part thereof, in which...

noncompliance has been. . . found,” but also that the

“agency's authority to promulgate regulation” is limited

to the contro! of discrimination in specific “programs”

or “activities” receiving federal assistance. Iron Arrow

cares not whether its seven-year-old wound arises from

promulgation of an invalid regulation by HEW, or in

the incorrect interpretation of a valid one. HEW erred

in both ways, and petitioner's complaint is that HEW,

and the Fifth Circuit, in approving the termination of

all funds to the University and Iron Arrow’s ouster

from campus, have reached a result plainly contrary to

the language of the statute and the holding of this

Court in North Haven, as wel! as one likely to cause

dangerous consequences for coercion of private

universities by federal agencies.

It is undisputed that Iron Arrow itself is neither a

“program’ nor an “activity” of the University, and, of

course, that it receives no federal financial assistance

of any kind. It is also undisputed that only one action of

the University might be interpreted as giving “assistance”

to Iron Arrow—allowing the society to use the

University's public areas for its “tapping” ceremony.

From these facts, it is beyond question that Iron

Arrow's membership policies are outside the scope of

Title IX.

Congress could have, if it wished, stated that any

university or other institution which discriminates in

any of its programs or activities would lose federal

15

funding.* As this Court pointed out at length in North

Haven, such statutes were proposed, but not enacted.

The inevitable effect of the statute actually passed is

that, for example, a university has the choice of whether

or not to maintain, without federal funding, a particular

practice viewed as discriminatory by the funding federal

agency without peril to other programs which are

federally funded and nondiscriminatory. If in such a

case the federal agency may threaten to cut off all

funds because of the “very existence” of the discriminatory

program or the “continued association” of the university

with it, the careful program-specific language of the

statute would be ineffective and useless verbiage. This

Court's description of the “program specific” nature of

the statute would be of no significance. Federal funding

agencies would be given great coercive powers to control

the actions and even public positions of private

universities, and other affected entities. This is exactly

the mandate divined by the Fifth Circuit's bizarre

interpretation of North Haven.

This potential could not be made more clear than

by this case. Although Iron Arrow is a society of men

of the University of Miami community and its purpose

is to support the University of Miami, that University

has been forced by a federal bureaucracy not only to

forebear giving even the minimal support to Iron Arrow

which it ever gave, but also to take a public position of

hostility toward Iron Arow—all in an effort to keep

the millions of dollars of federal funding which the

University uses in all of its programs and activities.

*For the purposes of this argument, we assume that the

University is “discriminating” in allowing Iron Arrow to use its

campus. As we show below, there is no such “discrimination by

the University in the record in this case.

16

The vice in this vast coercive power if not just

that a federal] bureaucracy can control private decisions

of a university. Sometimes laws have exactly that result.

But where, as here, Congress intended, and by well-

chosen language sought to ensure, that this power

would not exist, the result is totally unacceptable. The

Fifth Circuit's refusal to respect the “program-specific”

language of the statute makes the case a pernicious

precedent not only for the vibrancy of the country’s

pluralistic private universities, but also for the distortion

of the entire thrust of North Haven within the Fifth

and Eleventh Circuits and elsewhere.

It is quite apparent that the Fifth Circuit was

dissatisfied with the result plainly dictated by the

language of the statute and North Haven. In an

extraordinarily lengthy adjectival opinion, the Fifth

Circuit reinstated the very decision which had been

vacated by this Court. Faced with the vacation of its

earlier decision by this court and directed to measure

the case by North Haven’s yardstick of program—

specificity, the Fifth Circuit simply elected to make the

entire university (and at times, when it felt more

expansive, the entire “university community”) a “program”

by virtue of the “very existence” of Iron Arrow as a

single-sex organization. Jron Arrow, 702 F.2d at 564.

[A.42].

Such a result turns North Haven on its head. Not

only does the decision torture North Haven's plain

language, it also contradicts the decision of the First

Circuit in Rice v. President and Fellows of Harvard

College, 663 F.2d 336 (1st Cir. 1981), cert. denied, 456

U.S. 928 (1982), which squarely rejected the Fifth Circuit

approach. There a female had asked to:

17

have [the Court] interpret “education program”

in this case to mean Harvard Law School,

thereby permitting her to invoke the protection

of Title IX. Such an interpretation is essential

to her claim, as she has not specified any federally

funded program in which she suffered

discrimination because of her se.r. Her argument

is that, by virtue of the law school's status as a

recipient of federal funds through such specific

programs as work-study, Title 1X applies

whenever the school discriminates in any area,

regardless of whether the discrimination occurs

in an area that is federally funded.

Rice, 663 F.2d at 338 (Emphasis added). The First Circuit

was not impressed:

By alleging merely that Harvard Law School

receives federal funds for its work study

program, without alleging sex discrimination

in the handling of that program, [plaintiff] has

failed to bring herself within the protection of

Title IX.

Id. at 339.

Nor can any effort to distinguish Rice on its facts

succeed. Assuming Plaintiffs allegations that professors

intentionally and systematically lowered the grades of

female law students are taken as true —as they had to

be for the purposes of the motion to dismiss at issue in

Rice —a pervasive detrimental effect on the “self worth”

or “motivation” of women would be much more likely

than here where a supersensitive, strident Fifth Circuit

took exception to the University of Miami's passive

1s

tolerance of an honors society of University boosters.

The First Circuit was not concerned with such nebulous

concepts, however, since like this Court in North Haven,

the First Circuit recognized that Title IX is concerned

only with sex discrimination in the school’s handling of

federally-funded programs.

Numerous other courts have reached this same

conclusion. The Sixth Circuit in Hillsdale College ».

Department of Health Education and Welfare, 696 F.2d

418 (6th Cir. 1982) stated the point well:

We do not believe that Congress intended, in

enacting Title IX, to authorize HEW pervasively

to regulate entire colleges and universities

because federal money benefits the entire

institution.

Hillsdale, 696 F.2d at 429-30. In so ruling, the Sixth

Circuit mandated that HEW could not prevent anything

it viewed as “sex discrimination” at a college solely

because many of its students took advantage of federal

loan programs.

Other courts have recognized that only university

programs and activities which receive federal funds

are subject to Title IX. Othen vu. Ann Arbor School

Board, 507 F. Supp. 1376 (E.D. Mich. 1981), aff'd., 699

F.2d 309 (6th Cir. 1983); University of Richmond v. Bell

543 F. Supp. 321 (E.D. Va. 1982) (specifical!) rejecting

Iron Arrow decision).

Essentially the Fifth Circuit majority in this case

aligned itself with the Third Circuit in Grove City

College v. Bell 687 F.2d 684 (3d Cir. 1982), cert. granted,

19

75 L.Ed. 2d 429 (1983), which held that when some of a

college's students used federally-subsidized student loans,

the college was subject to plenary regulation of any

“discrimination” by HEW. The Jron Arrow case should

be considered along with Grove City College as this

Court resolves the conflict between the Circuits on the

key issue of interpretation of Title IX. This case presents

the “program-specificity” issue in the context of outside

student organizations rather than student loans.

We could not persuade the Fifth Circuit, despite

two appearances before it, that the language of Title

IX means what it says. This Court has been no more

successful. In North Haven, this Court went out of its

way to guide the lower courts on the issue. The Third

Circuit and, in the case now in question, the Fifth

Circuit, have not taken this court’s suggestion to heart —

even where, as here, the original opinion was pointedly

vacated for reconsideration. The subtle approach having

failed, it is now time to wield a heftier tool. This case is

for that reason an appropriate case for exercise of this

Court's writ of certiorari.

II. The ‘Very Existence’ of Iron Arrow on the

University Campus Does Not Pervasively

“Infect” or “Taint All Federally Funded

Programs.

In an almost pathetic attempt to clothe its earlier

rationale in a North Haven cloak and attempting to

disguise obvious conflict with other case law, the Fifth

Circuit claims that if the University of Miami allows

Iron Arrow to use the campus in any manner whatsoever,

20

this tolerance would be a “pervasive practice affecting

all assisted programs or activities conducted by the

institution.” Jron Arrow (IJ), 702 F.2d at 563. [A.38].*

The narrowness of this standard is appropriate —in

striking contrast to the manner in which the exception

was applied by the Fifth Circuit.

The exception must be a narrow one in light of the

program-specific nature of the purpose of title IX —that

federal funds not be used to perpetuate discrimination

in the University’s programs —and the remedy authorized

by the statute—cutoff of federal funds to specific

programs. Cutoff of all funds to an entire institution is

only authorized, as shown by the legislative history

grudgingly cited by the Fifth Circuit majority Uron

Arrow (II), 702 F.2d at 563 [A.38]), in narrow

circumstances. To justify such a draconian result, the

prohibited discrimination must so pervade a university

that funds cannot be given to any part or program of it

without federal funds sharing in the taint. If the practice

is viewed as discriminatory is not pervasive, however,

Title IX only authorizes cutoff of funds to the particular

program.

*Not only did the Fifth Circuit miss the reason for this

Court's return of the case to it, the appeals court viewed the

remand order as an opportunity to wax even more eloquently on

its theory of “pervasive infection” of a University.

The entire straw house of the Fifth Circuit's Jron Arrow (II)

decision is based on the substitution of the whole (University! for

one of its parts (a “program’). Otherwise, the Fifth Circuit would

unavoidably be hoisted on the petard of program-specificity. If

this simple expedient is as readily available as the Fifth Circuit

thinks, “program-specificity” and this Court's discussion of the

concept in North Haven will have no practical significance.

21

The courts have agreed that a discriminatory

admissions policy is one sort of pervasive practice of a

university (perhaps the only one) that may be prohibited

by HEW regulation and which may put the university

at risk of loss of all federal funding. As the First Circuit

acknowledged in Rice, a discriminatory admissions policy

will necessarily prevent applicants discriminated against

from participating in any federally-funded program.

Rice, 663 F.2d at 339 n. 2.

Allowing Iron Arrow to use the university grounds

for its tapping ceremony obviously will have no such

effect. Indeed, the Fifth Circuit acknowledged that

“neither Iron Arrow nor the University has ‘kept one

penny of federal financial assistance from being available

to the women students at the University as much as to

the male students there.’ Jron Arrow (IJ), 702 F.2d at

555 [A.19].

Rather than apply the program-by-program approach

of the statute, which carefully tailors the penalty to

the violation of public policy, the Court applied the

“pervasive practices” exception in a way that would

swallow the general rule. The effect of this interpretation

is that any practice viewed as discriminatory by HEW—

even if no federal funds are involved—can be controlled

by HEW, poised as it is with its garrote around the

financial jugular of the University. Title IX requires a

scalpel; the Fifth Circuit used a bludgeon.

Furthermore, the Fifth Circuit stretched the bare

record in this case into the realm of fancy when it

found that Iron Arrow’s use of public campus grounds

twice a year to “tap” its members would “infect the

entire academic mission of the Ufiiversity.” Jron Arrow

to

to

io

(IN), 702 F.2d at 555. [A.17]. The minimal record is clear

that University of Miami gives no significant assistance

whatsoever to Iron Arrow.

Undeterred by the facts or the record, Senior Judge

Tuttle and Judge Anderson concluded that the “very

existence” of Iron Arrow pervaded the University of

Miami's entire academic mission. The Court's explanatory

opinion, tinged with the emotionalism of a colorful closing

jury argument, is devoid of support in logic or in the

record:

The existence of the all-male Iron Arrow Honor

Society as the most prestigious honorary-

recognition society at the University has a

pervasive discriminatory effect upon women

in all of the University’s academic programs,

federally funded or not. All federal programs

at the University of Miami are necessarily

infected by what amounts to a general and

overriding policy of the University. This infection

results from the University’s close historical

ties with Iron Arrow. The Supreme Court has

recognized that “{a] sense of inferiority affects

the motivation of a child to learn.” [Citing

Brown v. Board of Education|.

Iron Arrow (II), 702 F.2d at 561 [A.32-33] (Emphasis

added).

The Fifth Circuit appeared inescapably drawn to

the ultimate inquiry as to whether any female student

at the University would bother to learn if she could not

join Iron Arrow. Stirred by its own language, the Court

proceeds to muse about the woes of the “woman chemistry

23

professor,” whose “motivation in conducting her research

may be adversely affected, in a subtle manner, because

[she knows] that the University community will never

formally recognize and accept. . . that [her] work is of

the same quality as that of male students or faculty.”

Iron Arrow (II), 702 F.2d at 561 n. 22 [A.34] (Emphasis

added). Having come this far, the conclusion is inevitable:

“Iron Arrow’s practices . . . subtlely undermine the

self worth of women who participate” in the University.

Tron Arrow (II), 702 F.2d at 562 [A.36].

While the thought of a female student or professor

driven to questioning the meaning of life when faced

with the deprivation of Iron Arrow membership might

otherwise be amusing, this type of legal reasoning is

not as humorous today in the Fifth or Eleventh Circuits.

Aside from the total factual implausibility of the

Fifth Circuit's bare conclusions, two significant implicit

legal errors make it imperative that this Court grant

the Writ to finally correct the Fifth Circuit's mistake,

since such correction could not be coaxed by this Court's

prior action.

First, the court below not only refused to respect

the “program-specific” nature of the statute, but it

even ignored the fact that it is the University which

(even for the most pervasive discrimination) is the

relevant entity. The Court instead focused on the

University community, an entity which receives no

federal funds and whose actions or attitudes (however

those might be defined) are a matter of indifference to

funding agencies as far as Title IX is concerned.

24

A second error in the analysis of the Fifth Circuit

was its reliance, repeated at numerous crucial points in

the opinion, on the “historical ties” of the University

with Iron Arrow. The fatal error in this argument is

that Title IX, and even its implementing regulations,

are written in the present tense. No discriminatory

actions of the University in the past were cited. Even if

there were such actions, they cannot be punished by a

present denial of federal funding.

The Fifth Circuit clearly disapproves of single-

gender societies which are in any way prestigious or

exclusive: ‘We are disturbed that the University

community, which in theory premises relations among

its members upon the free the vigorous interplay of

ideas, should classify and stigmatize the quality of those

ideas solely because of the sex of their author.” Jron

Arrow (II), 702 F.2d at 561 (Emphasis added) [A.33-34].*

Judges Tuttle and Anderson are entitled to their opinion.

However, irrespective of one’s personal educational

philosophy, single-gender private societies are not illegal.

Whether or not Congress could or should ban them is

not the question. It has not chosen to do so, and it has

not given federal agencies the power to do so either.

The relevant issue is whether any “program” or “activity”

of the University (not “the University community”) is

discriminatory.

*This observation is also irrelevant as Iron Arrow does not

exist to grade the worth or value of any “ideas”.

25

The Fifth Circuit refused to recognize any middle

ground between active discrimination by the University

and rigid dictation of HEW’s ideas of equality of treatment

to private organizations among the University community.

As the Fifth Circuit panel admitted in 1981, “we are

unable to imagine any continued association of the

society with the University of Miami” without violating

Title IX. Jron Arrow (I), 652 F.2d at 448. The disaffection

of that court with Iron Arrow continues. To the Fifth

Circuit, the point is a clear one: the University of

Miami should not allow Iron Arrow to exist.

Congress did not require that America's private

Universities be enslaved to HEW's view of

nondiscrimination in private organizations. In the greater

society, broad leeway is allowed for association of groups

that choose their own members on their own terms.

The law permits churches, women’s organizations, black

and ethnic organizations, and other organizations to

fail to apply the HEW notion of nondiscrimination,

however enlightened. Our free society, guaranteed by

the Constitution, allows these groups to exist. A

university, in the spirit of tolerance and pluralism, can

do the same without running afoul of Title IX.

This case may be unique. Indeed, some may believe

that the idea of an all-male honors society is anachronistic,

quaint, or even misguided, but the principle of tolerance

and noninterference here is a broad and important one.

A private or state university can allow a student

organization to use campus facilities without itself

adopting the views of the organization. When Young

Democrats, Young Republicans and Young Socialists

all meet on campus, there is obviously no university

commitment to the ideas of any. The Women’s Commission

26

of the University of Miami, amicus in this matter to the

courts below, doubtless meets on the University campus —

its presence accepted, tolerated, just as Iron Arrow’s,

without implicating the University in its beliefs, goals

or discriminations.

There are numerous organizations or campuses

that are not open to all members of the University

community —black student's associations, women’s

commissions, gay student's alliances, fraternities. As a

matter of law, these may be permitted without implicating

Title IX. If a university allows a Catholic service in the

university chapel—when women may not serve as

Catholic priests—does sex discrimination therefore

pervade the university? Obviously not—and no more

does the University’s tolerance of Iron Arrow result in

an approval of its membership policies.

Iron Arrow’s cause admittedly is not stylish by

today's standards. In past years, women's rights and

ethnic and racial causes were not viewed favorably. A

male honors society is now singled out as the object of

the Establishment's wrath ironically under a (totally

inappropriate) interpretation of a nondiscrimination

statute. To prevent this result, this Court should grant

certioriari.

(1) Since no federal funds go to Iron Arrow, directly

or indirectly, Iron Arrow’'s practices fal] outside the

scope of Title IX and Iron Arrow is of no concern to the

bureaucrats who administer the transfer of federal

education revenues.

(2) The University’s mere passive tolerance of a

single-gender organization which operates in the

university community is only a healthy manifestation

ed

of American pluralism and in no way “pervades” the

University with discrimination, “subtle” or otherwise.

The Fifth Circuit's contrary holding on these points

is not only in hopeless conflict with better reasoned

cases from the First and Sixth Circuits, but also makes

a mockery of the “program specific” nature of Title IX,

as explored by this Court in North Haven.

This Court should grant certiorari to consider the

important issues raised by this petition—the scope of

Title IX and whether HEW has overreached in the

exercise of its power in this case.

28

CONCLUSION

For the reasons stated, we urge this Court to

grant a writ of certiorari to review the opinion in this

cause,

Respectfully Submitted,

JOSEPH P. KLOCK, JR., ESQUIRE

JEFFREY B. CROCKETT, ESQUIRE

STEEL HECTOR & DAVIS

1400 Southeast Bank Bldg.

100 South Biscayne Blvd.

Miami, Florida 33131

ELIZABETH J. DuFRESNE

DuFRESNE AND BRADLEY, P.A.

1782 One Biscayne Tower

Two South Biscayne Boulevard

Miami, Florida 33131

Telephone: (305) 358-6044

Attorneys for Petitioner

Iron Arrow Honor Society

CERTIFICATE OF MAILING

I, Joseph P. Klock, Jr., an attorney admitted to

practice before the Supreme Court of the United States,

do swear and certify that I have this 8th day of July,

1983, placed the attached Petitiun for a Writ of Certiorari

in the Office of the United States Postal Service located

at the Miami International Airport, Miami, Florida.

Copies were appropriately addressed to the Clerk of

the Court and to the opposing attorneys with first

class postage prepaid within the time allowed for filing.

Joseph P. Klock, Jr.

COUNTY OF DADE

STATE OF FLORIDA

I hereby notarize that Joseph P. Klock, Jr., personally

known to me, did appear before me and swear to the

above Certificate of Mailing.

Notars Public

30

Appendix

TABLE OF CONTENTS OF APPENDIX

April 11, 1983 Opinion of 5th Circuit........

June 28, 1982 Letter of Clerk of seca

Court on Remand Order |

June 28, 1982 Order of this Court

Aug. 3, 1981 Opinion of 5th Circuit

Aug. 12,1980 Decision of S. D. Fla.

May 24, 1976 O.C.R. Letter to University

July 30,1976 O.C.R. Letter to University

Sept. 28,1976 U.of M. Letter to O.C.R.

May 20,1977 Decision of S.D. Fla.

June 11,1979 Decision of 5th Cir.

App. |

IRON ARROW HONOR SOCIETY, a “tap”

or recognition association for men, et al,

Plaintiff-A ppellants,

v.

Margaret M. HECKLER, Secretary of the Department

of Health and Human Services, et al.

Defendants-A ppellees.

No. 80-5663.

United States Court of Appeals.

Fifth Circuit.*

Unit B

April 11, 1983.

All-male university honorary-recognition society

brought action seeking to enjoin Secretary of Department

of Health and Human Services from terminating federal

funding to university for giving “substantial assistance”

to society. On remand, after previous appeal, 597 F.2d

590, the United States District Court for the Southern

District of Florida, Eugene P. Spellman, J., 499 F.Supp.

496, entered judgment from which society appealed.

The Court of Appeals, 652 F.2d 445, affirmed. On writ

of certiorari, the Supreme Court, 102 S.Ct. 3475, vacated

and remanded. On remand, the Court of Appeals, Tuttle,

Senior Circuit Judge, held that: (1) action continued to

*Former Fifth Circuit case, section 1) of Public Law 96452 — October

14, 1980.

App. 1

present live controversy after university's board of

trustees adopted policy by which society would no

longer be permitted to resume discriminatory practices

on campus, even though Department then considered

issue moot, and (2) where discriminatory practices of

society, by their nature and in light of intertwined

histories of society and university, infected entire academic

mission of university, thus rendering each and every

federal program at university necessarily discriminatory

as result of society's relationship to university, federal

regulation under which university was threatened with

termination of federal funds for giving substantial

assistance to society was valid both on its face and as

applied.

Affirmed.

Roney, Circuit Judge, dissented and filed an opinion.

1. Federal Courts—13

In determining whether action brought by all-male

university honorary-recognition society to enjoin

Secretary of the Department of Health and Human

Services from terminating federal funding to university

still presented justiciable Article III case or controversy

after university's board of trustees adopted policy by

which society would no longer be permitted to resume

discriminatory practices on campus, Court of Appeals

had to assess whether it could effectively render relief

requested by society. U.S.C.A. Const. Art. 3, §2.

App. 2

2. Federal Courts—13

Action brought by all-male university honorary-

recognition society seeking to enjoin Department of

Health and Human Services from terminating federal

funding to university under Title IX in order to deter

university from allowing society to conduct certain

functions on university campus continued to present

live controversy after board of trustees adopted policy

by which society would no longer be permitted to resume

discriminatory practices on campus, even though

Department then considered issue moot, in view of

facts that Department could require university to take

more substantial steps than merely prohibiting society

from using campus facilities and that university's present

policies displayed no assurances of permanence. U.S.C.A.

Const. Art. 3, §2; Education Amendments of 1972, §901

et seq., as amended, 20 U.S.C.A. §1681 et seq.

3. Civil Rights—9.5

Where discriminatory practices of all-male university

honorary-recognition society, by their nature and in

light of intertwined histories of society and university,

infected entire academic mission of university, thus

rendering each and every federal program at university

necessarily discriminatory as result of society's

relationship to university, federal regulation under which

university was threatened with termination of federal

funds for giving substantial assistance to society was

valid both on its face and as applied. Education

Amendments of 1972, §901 et seq., as amended, 20

U.S.C.A. §1681 et seq.

App. 3

4. Civil Rights—9.5

So-called “pinpoint” provision of civil rights statute

permitting cutoff of federal funds only in federally

supported program or activity that is actually found to

be engaged in race discrimination was designed to

balance need to prevent federal monies from being

used to advance discrimination against fear that fund

cutoffs would be exercised in a vindictive or punitive

manner. Civil Rights Act of 1964, §602, 42 U.S.C.A.

§2000d-1.

5. Civil Rights—9.5

Existence of all-male honorary-recognition society

as most prestigious such society at university had a

pervasive discriminatory effect upon women in all of

university's academic programs, federally funded or

not, so that all federal programs at university were

necessarily infected by what amounted to a general

and overriding policy of university, program-specific

prohibition of Title IX was satisfied, permitting application

of regulation under which university was threatened

with termination of substantial contribution of federal

funds for giving substantial assistance to society.

Education Amendments of 1972, §901 et seq., as amended,

20 U.S.C.A. §1681 et seq.

6. Civil Rights—9.5

Program-specific prohibition of statute forbidding

discrimination on basis of sex in federally funded school

programs applies when a discriminatory program is

“benefited ’ by federal financial assistance or when a

federally assisted program itself is infected by a

App. 4

discriminatory environment. Education Amendments

of 1972, §901 et seq., as amended, 20 U.S.C.A. §1681 et

seq.

Du Fresne & Du Fresne, Elizabeth J. Du Fresne,

Steel, Hector & Davis, Joseph P. Klock, Jr.. Miami,

Fla., for plaintiffs-appellants.

Drew S. Days, III, Asst. Atty. Gen., U.S. Dept. of

Justice, Civil Rights Div., Walter W. Barnett, Irving

Goldstein, William Bradford Reynolds, Jessica Dunsay

Silver, Walter W. Barnett, Washington, D.C., for

defendants-appellees.

Appeal from the United States District Court for

the Southern District of Florida.

ON REMAND FROM THE SUPREME

COURT OF THE UNITED STATES

Before RONEY and ANDERSON, Circuit Judges,

and TUTTLE, Senior Circuit Judge.

TUTTLE, Senior Circuit Judge:

I. INTRODUCTION

This case involves the proper ambit of the non-

discrimination and enforcement provisions of Title IX

of the Education Amendments of 1972. 20 U.S.C. §1681

et seq. It arises from the Supreme Court's order, ___

U.S. __, 102 S.Ct. 3475, 73 L.Ed.2d 1363 (1982), vacating

our prior decision, 652 F.2d 445 (5th Cir. 1981), and

remanding in light of North Haven Board of Education

App. 5

v. Bell, 456 U.S. ___, 102 S.Ct. 1912, 72 L.Ed.2d 299

(1982). We must determine how far the Secretary of

the Department of Health, Education amd Welfare’

may extend the Congressional mandate to eliminate

gender-based discrimination; the “simple justice” of

this policy was articulated 20 years ago by President

Kennedy with respect to discrimination on the basis of

race:

Simple justice requires that public funds, to

which all taxpayers of all races contribute, not

be spent in any fashion which encourages,

entrenches, subsidizes or results in racial

discrimination. Direct discrimination by Federal,

State, or local governments is prohibited by

the Constitution. But indirect discrimination,

through the use of Federal funds, is just as

invidious. .. .

President's Second Civil Rights Message to Congress

(June 19, 1963), set out in the Hearings before

Subcommittee No. 5 of the House Committee on the

Judiciary, 88th Cong., 1st Sess., ser. 4, Pt. II, 1446, 1454

(1963). Also see Lau v. Nechuls, 414 U.S. 563, 569, 94

S.Ct. 786, 789, 39 L.Ed.2d 1 (1974), quoting 110 Cong.Rec.

6543 (1963) (Remarks of Sen. Humphrey).

‘The Department of Health, Education and Welfare’s

responsibilities for educational! institutions under Title IX were

transferred to the Department of Education by §301/a¥3) of the

Department of Education Organization Act, Pub.L. No. 96-88, 93

Stat. 668, 678 (1979). The Department of Health, Education and

Welfare was then reorganized as the Department of Health and

Human Services. This opinion will refer to the appropriate party

defendant as simply the “Secretary.”

App. 6

The Iron Arrow Society is the most prestigious

honorary-recognition society at the University of Miami

in Florida. Iron Arrow elects only men to membership.

Male undergraduate and graduate students, alumni,

faculty, administrators, and staff of the University are

eligible for election to the Society on the basis of love

for Alma Mater, leadership, scholarship, and humility.

Those elected are initiated into the Society through a

“tapping” ceremony. The Secretary determined, by

letter of May 26, 1976, that the University of Miami, a

private institution of higher education which receives

substantial federal funding,’ gave “substantial assistance”

to Iron Arrow. This assistance, the Secretary determined,

subjected the University to Title IX’s prohibition against

gender-based discrimination.

Iron Arrow was established at the time of the

founding of the University. The first president of the

University provided the impetus for its founding and

granted a charter to Iron Arrow; two University

presidents have “signed into law” Iron Arrow’s

constitution and amendments to it. Iron Arrow is the

only campus organization that holds a charter granted

by the University. While the University no longer provides

secretarial and mailing services or meeting facilities to

the Society, nothing indicates that faculty members no

longer serve on membership screening committees in

all of the colleges, except the law school. In addition,

many plaques and monuments around the campus pay

‘The University of Miami received $46,000,000 of federal

funds in 1980, in the form of contracts, grants, and student assistance.

App. 7

tribute to Iron Arrow and its members, recognizing

the Society as “the highest honor at the University of

Miami.”

Iron Arrow sought to enjoin the Secretary from

terminating federal funding to the University. In our

previous opinion, we affirmed the district court’s denial

of a permanent injunction. See 499 F.Supp. 496 (S.D.Fla.

1980). In reaching this conclusion, we made two findings.

First, we found that the HEW regulation upon which

the Secretary acted, Reg. 86.31(b\7) (1975), 40 Fed.Reg.

24128,‘ “effectuates” the provisions of Title IX and is

consistent with the achievement of the objectives of

that statute. Second, we found that, in light of the close

history of the Society and the University, continuing

tangible and non-tangible support of the Society by the

University constitutes adequate assistance to impute

fairly Iron Arrow’s sex discrimination practices to the

University itself.

We now must reconsider our conclusions in light

of the “program-specific” language in the Supreme Court's

North Haven decision. We face the issue of the validity

of the HEW regulations implementing Title IX and the

Secretary's interpretation of several key phrases of

‘The most prominent of these monuments is on a mound

outside the student union building. At the time the Secretary

initiated his administrative action against the University, Iron

Arrow conducted its “tapping” ceremony by removing “tapees’

from class and conducting a highly visible ceremony on the mount.

‘The regulation, originally codified as 45 C.F.R. §86.31(b\7)

(1975), has since been codified as 34 C.F.R. §106.31(b7) (1982) in

connection with the establishment of DOE, 45 Fed. Reg. 30802

(1980).

App. 8

these regulations. To assist us in this task, we requested

briefs from the parties within 60 days. The Society and

amicus Women’s Commission of the University of Miami

complied with our request. The Secretary failed to

brief the substantive issues but filed a Motion for

Suggestion of Mootness and a Motion for Remand. Iron

Arrow responded by vigorously opposing this motion.

We turn first to the mootness question before reaching

the substantive issues.

II. MOOTNESS

The Secretary refers the Court to the letter dated

September 23, 1982, of University President Edward

T. Foote. II to C. Rhea Warren, Iron Arrow’s Chief.

That letter expresses the new policy of the University's

Board of Trustees that it will not permit Iron Arrow to

resume its discriminatory practices on campus even if

Iron Arrow succeeds in this lawsuit. This letter

presumably refers to the policy adopted by the Trustee

Executive Committee on July 15, 1980, setting forth

the requirement that Iron Arrow may only return to

campus if it meets the code for student organizations,

which includes a policy of non-discrimination. The

Secretary, joined by amicus, contends that Iron Arrow’s

injury is attributable solely to the University’s decision

to keep it off the campus, and not to any action by the

Department of Education or any possible action by this

Court.

[1] In determining whether this case still presents

a justiciable Article III case or controversy, we must

assess whether the Court may effectively render the

relief requested by the appellant. Mills uv Green, 159

App. 9

U.S. 651, 653, 16 S.Ct. 132, 40 L.Ed. 293 (1895).’ It is

important to bear in mind that, while the University is

the defendant in the administrative action that provided

the stimulus for this lawsuit, Iron Arrow is the plaintiff

which has requested injunctive relief and whose policies

form the basis for the Secretary's actions. We, therefore,

must consider whether enjoining the Secretary from

cutting off federal funding to the University would

result in any benefit to Iron Arrow.

{2} This case continues to present a live controversy.

First, we find that we may still grant the plaintiffs

effectual relief. The Secretary still could require, for

the University to be found in compliance with Title IX,

that the University take more substantial steps than

merely prohibiting Iron Arrow from using campus

facilities for its “tapping” ceremony. The Secretary

conceivably could demand that the University, in addition

to its stated policy, disestablish the historical ties between

it and Iron Arrow by, inter alia, revoking the charter

given by the University to the Society, refusing to

recognize Iron Arrow any longer, withdrawing

“sponsorship” of Iron Arrow by the office of the president,

and prohibiting Iron Arrow from using the University’s

name. An injunction would serve to insulate the plaintiffs

from all of these appropriate additional enforcement

actions should we, for example, uphold the validity of

the HEW regulation but find that the Secretary's

application of the regulation in this particular instance

is improper.

‘We note that, in evaluating the mootness of a case pending

on appeal from a lower court, we are empowered to consider

extrinsic evidence not appearing on the record. Mills, 159 U.S. at

653, 16 S.Ct. at 133.

App. 10

The second reason this case continues to present a

live controversy is, quite simply, because the University’s

present policies display no assurances of permanence.

We note that the University's policy of excluding Iron

Arrow from campus, even if adopted in good faith, is

subject to change at a later date. The present trustee

policy barring Iron Arrow from campus while the Society

maintains discriminatory membership practices itself

reflects a shift from University policy adopted April

11, 1977,’ and thus indicates that such policy statements

are readily changeable. A long line of Supreme Court

cases supports the proposition that the “[vjoluntary

discontinuance of an illegal activity does not operate to

remove a case from the ambit of judicial power.” Walling

v. Helmerich & Payne, 323 U.S 37, 43,65 S.Ct. 11, 14, 89

L.Ed. 29 (1944). E.G., St. Paul Fire & Marine Insurance

Co. v. Barry, 438 U.S. 531, 537-38, 98 S.Ct. 2923, 2927-28,

57 L.Ed.2d 932 (1978); United States 1. Phosphate Export

Association, 393 U.S. 199, 203, 89 S.Ct. 361, 364, 21

L.Ed.2d 344 (1968) (heavy burden of persuasion where

voluntary discontinuance); United States vu. W.T. Grant

Co., 345 U.S. 629, 633, 73 S.Ct. 894, 897, 97 L.Ed. 1303

(1953); Hecht Co. v. Bowles, 321 U.S. 321, 327, 64 S.Ct.

"The April 11, 1977, policy of the Board of Trustees Executive

Committee would have permitted Iron Arrow back on campus so

long as such action was legally permissible, even if the Society

continued to elect only men to membership.

“Moreover, the reluctance of the Secretary to enforce the

regulation under attack does not moot this litigation because the

regulation still is in effect. See North Haven, 102 S.Ct. at 1918, n.

12.

App. 11

987, 590, 88 L.Ed. 754 (1944).* Also see Otis & Co. wv

SEC, 106 F.2d 579, 583-84 (6th Cir. 1939). We are bound

by another panel of this Circuit, which recently offered

the following advice in this regard: “Courts should

keep in mind the oft-repeated observation that ‘reform

timed to anticipate or blunt the force of a lawsuit

offer(s] insufficient assurance that the practice sought

to be enjoined will not be repeated." NAACP x. City

of Evergreen, Alabama, 693 F.2d 1367, 1370 (11th Cir.,

1982), quoting James v. Stockham Valves & Fittings

Co., 559 F.2d 310, 354-55 (5th Cir. 1977), cert. denied,

434 U.S. 1034, 98 S.Ct. 767, 54 L.Ed.2d 781 (1978). We

thus fee] free to proceed to a reconsideration of the

merits of this appeal. Appellees’ Motion for Remand is

denied.

‘The case of SEC v. Medical Committee for Human Rights,

404 U.S. 403, 92 S.Ct. 577, 30 L.Ed.2d 560 (1972), relied upon by

appellees, is not persuasive here. That case against the Securities

and Exchange Commission for failure to oppose a third party

corporation's exclusion of a shareholder proposal was mooted not

solely, as appellees suggest, because the corporation later decided

to include the proposal in its proxy statement. Rather, the Court

relied upon a finding of fact that Dow would not seek to exclude

the proposal challenging production of napalm when the shareholders

were permitted by the security laws to resubmit it in three years,

because the proposal gained such little support the first time it

was included in the corporation's proxy statement. We also note

that we do not rely upon the “capable of repetition but evading

review’ line of cases in denying appellees motion. because it is

factually inappropriate in the instant case.

App. 12

III. RECONSIDERATION IN LIGHT

OF NORTH HAVEN

A. The Statute and HEW’s Regulation

Section 90l(a) of Title IX of the Education

Amendments of 1972 provides that, “(njo person 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(a). Congress

gave federal agencies the power to enforce this prohibition

by authorizing regulations which may include a fund

cutoff provision. Section 902 provides, in pertinent part:

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 .. . 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 of general

applicability which shall be consistent with

the statute authorizing the financial assistance

in connection with which the action is taken. . . .

Compliance with any requirement adopted

pursuant to this section may be effected (1) by

termination 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

requirement, but such termination or refusal

shall be limited to the .. . recipient as to

App. 13

whom such a finding has been made, and shall

be limited in its effect to the particular program,

or part thereof, in which such non-compliance

has been so found. ... Provided however,

that no such action shall be taken until the

department or agency concerned has advised

the appropriate person or persons of the failure

to comply with the requirement and has

determined that compliance cannot be secured

by voluntary means.

20 U.S.C. §1682,

Pursuant to this authority, HEW issued regulations

in 1974. Regulation 86.31\b\7) provided the basis for

the Secretary's threatened cutotf of federal funds at

the University of Miami. That Regulation provides, in

pertinent part:

A recipient shall not, on the basis of sex: .. .

(7) Aid or perpetuate discrimination against

any person by providing significant assistance

to any agency, organization, or person which

discriminates on the basis of sex in providing

any aid, benefit or service to students or

employees.

40 Fed.Reg. 24128 (1975). The Secretary explained the

purpose and function of this Regulation on “outside”

organizations:

Section 86.31(bX7) prohibits a recipient from

assisting another party which discriminates

on the basis of sex in serving students or

App. 14

>

employees of that recipient. This section might

apply, for example, to financial support by the

recipient to a community recreational group

or to official institutional sanction of a

professional or social orgagization. Among the

criteria to be considered in each case are the

substantiality of the relationship between the

recipient subject to the regulation and the

other party involved, including the financial

support by the recipient, and whether the other

party's activities relate so closely to the

recipient's educational program or activity, or

to students or employees in that program,

that they fairly should be considered as activities

of the recipient itself. (Under section 86.6ic), a

recipient's obligations are not changed by

membership in any league or other organization

whose rules require or permit discrimination

on the basis of sex).

39 Fed.Reg. 22229 (1974). HEW also described in the

Federal Register some additional standards which would

guide its enforcement of Regulation 86.31(b\7):

{S]uch forms of assistance as faculty sponsors,

facilities, administrative staff, etc. may be

significant enough to create the nexus and to

render the organization subject to the regulation.

Such determinations will turn on the facts and

circumstances of specific situations.

40 Fed.Reg. 24132 (1975).

It should be noted that the statute itself fails to

detine the terms “education program or activity.” Section

App. 15

901l(c) of the statute does define the term “educational

89

institution,’ as follows:

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, except 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 department.

20 U.S.C. §1681(c).

In our initial consideration of this case, we interpreted

these comments to mean that, while the sanction of a

cutoff of federal funds normally is limited to a recipient's

discriminatory program or activity directly receiving

federal funds, a different standard applies where an

*T xe term “institution” is used throughout the exceptions to

Title IX. Section 901\a\1) provides that, with respect to admissions,

section 901\a) applies only to institutions of vocational education,

professional education, and graduate higher education, and to

institutions of undergraduate higher education. Specific exceptions

are made for the admissions policies of schools that begin admitting

students of both sexes for the first time, section 901(aX2); religious

schools, section 901(aX3); military schools, section 901l(aX4); the

admission policies of public institutions of undergraduate higher

education that traditionally and continually have admitted students

of only one gender, section 901(aX5); social fraternities and sororities,

and voluntary youth service organizations, section 901(aX6); Boys/Girls

State Nation conferences, section 901(aX7); father-son and mother-

daughter activities at educational institutions, section 901(a\8);

and scholarships awarded in “beauty” pageants by institutions of

higher education, section 901(aX9).

App. 16

“outside organization” is involved. In such a case, we

found it necessary to consider the substantiality of the

relationship between a university and the outside

party and whether that party's activities relate so

closely to a university's educational program or activity,

or to students or employees in that program, that

these activities should be considered as activities of a

university itself for the purpose of terminating federal

funding.

We now turn our attention to the effect of the

Supreme Court's decision in North Haven on our previous

holding that the Secretary properly exercised his

authority under Titie IX when he (1) promulgated

Regulation 86.31(b\7) and (2) applied the Regulation to

compel the University to disassociate itself from the

Society so long as Iron Arrow maintains its all-male

membership policy or face a termination of federal

funds.

(3] After careful study, we now determine that

the case law, including the North Haven decision, strongly

supports our prior conclusion that Regulation 86.31(bX7)

is valid both on its face and as applied. Each and every

federal program at the University is necessarily

discriminatory as a result of Iron Arrow’s relationship

to the University. The discriminatory practices of the

Society, by their nature and in light of the intertwined

histories of Iron Arrow and the University, infect the

entire academic mission of the University. In reaching

this conclusion it is immaterial that federal funds are

not directly earmarked to Iron Arrow itself. The effect

of the program-specific requirements of North Haven

is that, while the University as a whole is not subject

to the prohibitions and sanctions of Title IX, each and

App. 17

every program or activity at the University receiving

federal assistance is so subject to the statute's strictures.

We also find that the statutory language and the statute's

pre-enactment and post-enactment legislative history

bear out our conclusion that Congress intended that

Title IX cover honor societies such as Iron Arrow.

B. The North Haven Decision

In North Haven, the Supreme Court upheld the

validity of regulations that prohibit federally funded

educational programs from discriminating in employment

on the basis of gender. In applying this conclusion to

the specific facts in the North Haven case, the Court

noted that Title IX is “program-specific’ both in its

prohibition of gender discrimination and in its fund

cutoff sanction. Thus, the Court left little doubt that

Title IX applies to those programs or activities directly

receiving federal funds.

The Court's decision, however, leaves open several

questions for this Court. For example, the Court explicitly

recognized that it did ‘not undertake to define

‘program .. .” 102 S.Ct. at 1927. Thus, may the term

“program” encompass outside activities such as Iron

Arrow if the activities are considered as programs of

the University itself? Also, who falls within the definition

of a “recipient” of federal funding? In addition, we still

must determine the means by which federal funding

may “benefit” a program that engages in discrimination.

C. Analysis

Appellants, on remand, contend that the program-

specific language of North Haven requires the “tracing”

App. 18

of federal money to a specific university program which

then, in turn, benefitted Iron Arrow, for the University

to be subjected to Title IX’s sanctions. They argue that

neither Iron Arrow nor the University has “kept one

penny of federal financial assistance from being available

to the women students at the University as much as to

the male students there.” Appellants rely on three

cases, each dealing with sports programs at schools, to

support their proposition that Title IX applies only to

those programs receiving direct federal funding. Amicus,

on the contrary, argues that the legislative history

requires that the term “program or activity” be read

broadly so as to include honorary societies. Amicus

also relies on several cases which employ various theories

to broaden the definition of “recipient” or “program”

under Title IX.

North Haven provides a framework for the analysis

of the scope of Title IX. In that case, the Court looked

first to the language of the statute, then to the legislative

history, both from before and since Title [X's enactment,

and finally to the case law to determine if employment

discrimination falls within the ambit of Title IX. We

employ this same approach here.

1. The statute

We now have the benefit of the Supreme Court's

ruling in North Haven that an agency's authority under

Title IX both to promulgate regulations and to terminate

funds is limited to the specific program or activity

receiving federal financial aid. The statute fails on its

own to define unambiguously the terms “program or

activity” or “recipient.” We therefore must turn to the

App. 19

legislative history for a clearer understanding of the

boundaries of these terms.

Nothing in the language of the statute itself, however,

indicates that Iron Arrow’s activities should not be

attributable to the University and thus be subject to

Title IX. We especially note that Congress did not limit

its prohibition merely to discrimination in entrance to

funded programs or to discrimination among actual

participants in those programs. The language of Title

IX sweeps far more broadly. In addition to the language,

“excluded from participation in” and “subjected to

discrimination under,’ Congress also used the broad

phrase “be denied the benefits of.” Not only does the

word “benefit” allow for the prohibition of many subtle

substantive forms of discrimination, the act of “denial”

is so unspecific as to admit of a host of prohibited

actions. We also believe it significant that Congress

did not provide in the statute that the “education program

or activity receiving Federal financial assistance” be

the actual party which engages in the discriminatory

act.

The statute also is revealing for the exceptions it

contains.” These exceptions fall roughly into two classes.

The first class excepts from Title IX’s coverage the

admissions policies of certain types of schools that do

not admit students of one or the other sex or that

admit only a limited number of male or female students.

The second class excepts from coverage certain activities

or organizations in otherwise covered schools. The

existence of these exceptions is significant to

‘See footnote 9.

App. 20

understanding the scope of §901(a). Congress would

not have provided such exceptions unless it believed

that the activities or policies, in the absence of these

exceptions, would otherwise have been covered. Thus,

for example, social fraternities are specifically excepted

from coverage, even without any clear indication of the

direct federal funding they would receive.” Similarly,

Congress felt it necessary to except certain admissions

policies even though admissions programs are themselves

rarely federally funded. These exceptions indicate

Congress’ contemplation of a broad reading of Title IX

and its “program-specific’ requirements that would

apply to general and overriding features of all educational

institutions.”

2. Pre-enactment legislative history

If the pre-enactment legislative history of Title IX

reveals anything, it is that Congress did not expressly

contemplate the type of problem that is before us today.

Two factors are important in considering the pre-

enactment legislative history of Title IX. First, Title

IX was presented as a floor amendment so there is no

informative committee consideration. Second, Title IX

was explicitly modeled after and contains virtually

identical language to sections 601 and 602 of Title VI of

the Civil Rights Act of 1964, Pub.L. 88-352, 78 Stat.

252, 42 U.S.C. §§2000d et seg., which addresses race

See Haffer v. Temple University, 524 F.Supp. 531, 541i, affd

688 F.2d 14 (3d Cir. 1982), where the court also relies on this

argument.

"See section III, C, 3, on post-enactment legislative history,

infra, for further discussion of these exceptions.

App. 21

discrimination in all phases of federally funded programs,

not merely in education. North Haven, 102 S.Ct. at

1922; Cannon v. University of Chicago, 441 U.S. 677,

694, 99 S.Ct. 1946, 1956, 60 L.Ed.2d 560 (1979); Sex

Discrimination Regulations: Hearings Before

Subcommittee on Post Secondary Education of the

Committee on Education and Labor, House of

Representatives, 94th Cong., Ist Sess. 16, at 150 (“(T]he

setting up of an identical administrative structure and

the use of virtually identical statutory language

substantiates the intent of Congress that the

interpretation of Title IX was to provide the same

coverage as had been provided under Title VI.”)

(Comments of Senator Bayh). (“Sex Discrimination

Hearings.’) Thus, the legislative history of Title VI is

useful in understanding Congress’ intent when it enacted

Title IX, although we recognize that it is obviously,

“Congress intention in 1972, not 1964, that is of

significance in interpreting Title IX.” North Haven,

102 S.Ct. at 1922.

[4] The so-called “pinpoint” provision of section

602 of Title VI, which permits the cutoff of federal

funds only in the federally supported program or activity

that is actually found to be engaged in race discrimination,

was designed to balance the need to prevent federal

monies from being used to advance discrimination, Lau

v. Nichols, 414 U.S. 563, 565, 94 S.Ct. 786, 788, 789, 39

L.Ed.2d 1 (1974), against the fear that fund cutoffs

would be exercised in a vindictive or punitive manner.

E.g. 110 Cong.Rec. 7062 (1964) (Comments of Senator

Pastore’. Several! senators harbored this fear. especially

with regard to fund cutoffs for segregated pub!.. school

App. 22

systems.” They feared that funds to an entire state

could be terminated if only a single school remained

segregated and that innocent beneficiaries of federal

funds would thus be adversely affected.’ The need to

pinpoint the termination of funds to the particular

discriminating program was envisioned as an essentially

geographic limitation, yet with broad applicability to

prohibit the use of federal] funds for discriminatory

purposes.”

We note that Title IX’s legislative history indicates

that Congress explicitly contemplated coverage of at

least one of the types of harms suffered by the women

who originally complained to the Secretary. There is

substantial evidence in the record that future employers

often regard membership in Iron Arrow as a very

“For a discussion of the history of the “pin-point” provision,

see generally, Board of Public Instruction v. Finch: Unwarranted

Compromise of Title VI's Termination Sanction, 118 U.Pa.L.Rev.

1113 (1970); Title VI, Title IX and the Private University: Defining

“Recipient” and “Program or Part Thereof,” 78 Mich.L.Rev. 608

(1980); Administrative Cutoff of Federa! Funding under Title VI:

A Proposed Interpretation of “Program.” 52 Ind.L.J. 651 (1977);

Federal Aid to Higher Education: the Challenge to Fraternal

Freedom of Association, (1966) Wis.L.Rev. 1252: HEW's Regulations

under Title IX of the Education Amendments of 1972: Ultra Vires

Challenges, 1976 Brigham Young University L.Rev. 133 (1976).

“See, e.g. 110 Cong.Rec. 8507-08 (1964) (Comments of Senator

Smathers) (Title VI, “would punish a whole area. a whole State, a

whole group, because of the sins of one.”.

“See, e.g.. 110 Cong.Rec. 11942 (1964) (Comments of Attorney

General Kennedy); id. at 7063 (Comments of Senator Pastore); id.

at 6067 (Comments of Senator Ribicoff); id. at 8979-80 (Comments

of Senator Humphrey).

(Footnote continued on next page)

App. 23

desirable attribute. Senator Bayh, Title I1X’s sponsor,

noted the effect of educational opportunities on future

employment. He identified the need for a, “fair chance

[for women] to secure the jobs of their choice .. .,”

118 Cong.Rec. 5808 (1972), as a significant motivation

for enacting Title IX.

In sum, Title IX’s pre-enactment legislative history

is inconclusive with respect to whether Congress actually

(Footnote 15 Continued)

The breadth of congressional concern is indicated by the

following list of abuses of federal funds towards which Title VI

was aimed:

The Federal Government pays more than ninety-five

percent of all National Guard operating funds, yet eleven

states still require segregation in their Guard units.

The Federal Government gives the State of Mississippi

about two million dollars a year for its public schools, yet

every public school in the State continues to be segregated

ten years after the Supreme Court school decision.

The Federal Government spent seven hundred fifty

million dollars on research projects in 1960, yet in seven

States forty-three percent of all National Institutes of

Health grants and forty-one percent of all grants by the

Atomic Energy Commissioner went to public universities

and research centers that do not admit Negro students.

State public offices are financed one hundred percent

by the Federal Government, nevertheless many offices

maintain separate buildings, separate waiting rooms and

separate job lists.

110 Cong.Rec. 7711 (1964) (Quoting from Leadership Conference

on Civil Rights).

App. 24

envisioned imputing the practices of ‘‘outside

organizations” to federal fund recipients. The history

does indicate two general principles. First, that in limiting

an administrator's authority to cut off federal funds,

Congress was concerned about abuses of the termination

sanction that are very different from the Secretary's

actions in the instant case. Thus, there is no indication

that the “pinpoint” provision was designed to prohibit

the Secretary from pursuing the type of sanctions he

seeks to impose in this case. Second, Congress clearly

intended that Title VI’s and Title IX’s prohibitions

apply whenever federal funds bestow a benefit in a

discriminatory manner. Included amongst those benefits

are equal employment opportunities for women as a

result of equal educational opportunities.

3. Post-enactment legislative history

Title IX’s post-enactment legislative history offers

significant insight to the problem we face. Several

amendments and proposed amendments, as well as

formal consideration of the HEW regulations, confirm

Congress’ desire to ban discrimination in those honor

societies with an adequate nexus to universities receiving

federal funds.

HEW published its final Title IX regulations on

June 4, 1975. The Secretary submitted these regulations

to Congress for review pursuant to section 431(d\1) of

the Genera! Education Provisions Act, Pub.L. 93-380,

88 Stat. 567, as amended, 20 U.S.C. §1232(d\1). This

“laying before” provision was designed to afford Congress

an opportunity to examine the regulation and, if it

found the regulation “inconsistent with the Act from

which it derives its authority . . .,” to disapprove it in

App. 25

a concurrent resolution. If no such disapproval was

adopted within 45 days the regulation would become

effective.”

Two resolutions of disapproval were introduced in

the Senate, but neither was acted upon. See 121 Cong.Rec.

17300 (1975) and id. at 22940. One of these, Senate

Concurrent Resolution 46 proposed by Senator Helms,

would have disapproved regulations applying Title IX

to programs and activities not directly receiving federal

funds. The resolution was not reported out of committee.

Similarly, the House failed to pass concurrent resolutions

of disapproval. See 121 Cong.Rec. 21687. Congress thus

failed to register its dissatisfaction with the regulations

in question in this case.

“This 45 day period had already run by the time that Congress

amended 20 U.S.C. §1232\d*1) to provide that:

Failure of the Congress to adopt such a concurrent resolution

with respect to any such final regulation prescribed under

any such Act, shall not represent, with respect to such

final regulation, an approval or finding of consistency

with the Act from which it derives its authority for any

purpose, nor shall such failure to adopt a concurrent

resolution be construed as evidence of an approval or

finding of consistency necessary to establish a prima

facie case, or an inference or presumption, in any judicial

proceeding.

Section SiaXb) of Public Law 94-142 provides that section 7\b),

which amended 20 U.S.C. §1232id#1), was to take effect on November

24, 1975. While the failure of resolutions of disapproval in the

absence of this amendment cannot be read to mean that Congress

explicitly approved the new regulations or explicitly found them

to be consistent with Title IX, we note that many members of

Congress were obviously aware that their actions indeed would

be construed as an implicit finding of consistency.

App. 26

As the Supreme Court in North Haven noted, “[Tjhe

relatively insubstantial interest given the resolutions

of disapproval that were introduced seems particularly

significant since Congress has proceeded to amend section

901 when it has disagreed with HEW’s interpretation

of the statute.” 102 S.Ct. at 1924 (footnote omitted).

Five attempted amendments to Title IX merit our

careful attention. These amendments reveal that Congress

contemplated the problem of Title IX’s coverage of

outside organizations, including honor societies such as

Iron Arrow, and that Congress did not act to prevent

such an extension of HEW’s authority under Title IX.

In the only one of these five proposed amendments

actually adopted, Congress amended Title IX, even

before it reviewed HEW’s regulations, to except social

fraternities and sororities and voluntary youth service

organizations from the reach of section 901(a). Pub.L.

93-568, §3(a), 88 Stat. 1862 (1974). Senator Bayh, the

sponsor of the amendment, emphasized that:

This exemption covers only social Greek

organizations; it does not apply to professional

fraternities or sororities whose admission

practices might have a discriminatory effect

on the future career opportunities of a woman.

120 Cong.Rec. 39992 (1974).

This amendment clarifies two aspects of Congress’

thinking.” First, it is strong evidence that Congress

“It is useful to note, in divining Congress’ intent by examining a

post-enactment amendment to a statute, the substantia! continuity

of membership from the 92nd to the 94th Congress. See 1976

Brigham Young U.L.Rev. 133.

App. 27

intended that Title IX apply to outside organizations

such as Iron Arrow, which might affect the post-graduation

employment opportunities of women. Second, it is difficult

to imagine, except in a very few cases where a fraternity

or sorority might occupy a house in which construction

was paid for in some part by federal funds, any sort of

direct federal aid such an organization could receive.

Yet this fact did not deter Congress from believing

that, unless fraternities and sororities were specifically

excepted from the coverage of Title IX, their

discriminatory admissions policies would fall within

the ambit of section 901(a)."*

In 1975, Senator Helms attempted to limit explicitly

Title IX’s coverage to educational programs and activities

directly receiving federal financial assistance. S.2146,

121 Cong.Rec. 23845 (1975). Congress declined to pass

this amendment. In 1976, Senator McClure similiarly

“See Haffer, 524 F.Supp. at 541 (“Logic supports a broad

reading of Title IX and supports upholding the validity of the

regulations. Congress explicitly amended Title IX to exclude social

fraternities and sororities from its coverage. I cannot imagine

what possible federal funds could have been earmarked for these

programs. If such indirectly (if at all) benefited programs were

never intended to be covered by Title IX, it is inexplicable that

Congress felt the need to exempt them specifically on another

basis.”)

We emphasize at this point that Congress was well aware

that these social] fraternities or sororities might only receive

indirect federal funding. In the course of the amendment's debate,

Senator Bayh stated that, “Most of these fraternal organizations

could not continue to exist without this kind of indirect financial

assistance from the colleges and universities. . . .”’ 120 Cong.Rec.

3992 (1974) emphasis added).

App. 28

attempted to define federa! financial assistance as

assistance received directly from the federal government.

Amendment 390, 122 Cong.Rec. 28144 (1976). The Senate

defeated this amendment. Senator McClure also

attempted to amend section 901 to limit the meaning of

“educational program or activity’ to such “as are

curriculum or graduation requirements of the institutions.”

Amendment 389, 122 Cong.Rec. 28136 (1976). This

amendment arguably would have placed Regulation

86.31(b7) beyond the Secretary's authority under Title

IX. The Senate, by a vote of 52 to 28, declined to so

limit the scope of Title IX’s prohibitions. 122 Cong.Rec.

28147 (1976).

In 1976, Representative Mathis unsucessfully

attempted to broaden an amendment containing certain

exceptions to Title IX, specifically sections 901(aX6) to

(9),"° by also excepting professional fraternities and

sororities from the coverage of Title IX. In response to

inquiry on the scope of his proposed amendment,

Representative Mathis clearly stated that honorary

societies would remain subject to Title IX. 122 Cong.Rec.

13535 (1976). In addition, several other representatives

strongly denounced the policy behind Representative ©

Mathis’ proposed amendment and noted that the

discriminatory membership practices of such societies

were among the abuses Title IX was designed to remedy.

See 122 Cong.Rec. 13535-36 (1976).

These numerous attempts to alter Title IX's scope

of coverage reveal that Congress was well aware that

Title IX would be construed to prohibit discriminatory

"See footnote 9, supra.

App. 29

membership practices among honor societies such as

Iron Arrow. We take these expressions of Title IX's

scope as authoritative, in light of the recent language

of the Supreme Court in North Haven that:

Although postenactment developments cannot

be accorded “the weight of contemporary

legislative history, we would be remiss if we

ignored these authoritative expressions

concerning the scope and purpose of Title

IX ... .’ Cannon vu. University of Chicago, 441

U.S., at 687, note 7 (99 S.Ct. at 1952, note 7].

Where “an agency's statutory construction has

been ‘fully brought to the attention of the

public and the Congress,’ and the latter has

not sought to alter that interpretation although

it has amended the statute in other respects,

then presumably the legislative intent has been

correctly discerned.’ United States v.

Rutherford, 442 U.S. 544, 554, noted 10 [99

S.Ct. 2470, 2476, note 10, 61 L.Ed.2d 68] (1979),

quoting Apex Hosiery Co. v. Leader, 310 USS.

469, 489 [60 S.Ct. 982, 989, 84 L.Ed. 1311]

(1940)... .

102 S.Ct. at 1925.

4. The relevant case law

The relevant case law strongly supports our prior

finding that the Secretary acted within his authority

when he issued Regulation 86.31(b\7) and when he

determined that the University is subject to a cutoff of

federal funding due to its relationship with Iron Arrow.

In reaching this decision, we rely primarily upon the

App. 30

case of Board of Public Instruction of Taylor County,

Florida v. Finch, 414 F.2d 1068 (5th Cir.1968), by which

we are bound.” In Finch, the former Fifth Circuit

interpreted the term “program” in section 602 of Title

VI to mean the use of federal funds under an individual

grant statute by which the school received aid to remedy

specific areas of educational need. 414 F.2d at 1078."

The court held that a general finding of discrimination

in the operation of an elementary and secondary schoo!

system is insufficient for the termination of all federal

funding to that system because, “the termination power

reaches only those programs which would utilize federal

funds for unconstitutional ends.” 414 F.2d at 1078. The

Court found that HEW must make a finding of

discrimination in the operation of each program funded

by a particular statute before cutting off federal funds.

The Finch court went on to recognize that the

policy of Title IX mandates the broad and flexible

application of the fund cutoff provisions:

~The case law of the former Fifth Circuit Court of Appeals

has been adopted by the Eleventh Circuit Court of Appeals as

binding precedent unless and until overruled or modified by this

Court sitting en bane. Bonner &. City of Prichard, 661 F.2d 1206

(11th Cir.1981).

This interpretation is applicable to Title IX because of the

virtually identical language of that statute. See North Haven, 102

S.Ct. at 1922 ("the meaning and applicability of Title Vi are useful

guides in construing Title IX, therefore, only to the extent that

the language and history of Title 1X do not suggest a contrary

interpretation. ); Cannon | I'niversity of Chicago, 441 U.S. at

697 98, 99 S.Ct. at 195%

\ pp $]

We conclude with a word of caution. In

finding that a termination of funds under

Title IV (sic) of the Civil Rights Act must be

made on a program by program basis, we do

not mean to indicate that a program must

be considered in isolation from its context.

To say that a program in a school is free

from discrimination because everyone in that

school is at liberty to partake of its benefits

may or may not be a tenable position. Clearly

the racial composition of a school’s student

body, or the racial composition of its faculty

may have an effect upon the particular

program in question. But this may not always

be the case. In deference to this possibility,

the administrative agency seeking to cut off

federal funds must make findings of fact

indicating either that a particular program

is itself administered in a discriminatory

manner, or is so affected by discriminatory

practices elsewhere in the school system

that it thereby becomes discriminatory.

414 F.2d at 1078-79. Thus, under the standards set out

by the Court, if federal funds, “support a program

which is infected by a discriminatory environment,

then termination of such funds is proper.” 414 F.2d at

1078.

[5] We hold, therefore, that the existence of the

all-male Iron Arrow Honor Society as the most prestigious

honorary-recognition society at the University has a

pervasive discriminatory effect upon women in all of

the University’s academic programs, federally funded

or not. All federal programs at the University of Miami

are necessarily infected by what amounts to a general

and overriding policy of the University. This infection

results from the University's close historical ties with

Iron Arrow.

The Supreme Court has recognized that, “[a] sense

of inferiority affects the motivation of a child to learn.”

Brown v. Board of Education, 347 U.S. 483, 494, 74

S.Ct. 686, 691, 98 L.Ed 873 (1954). Two factors aggravate

this concern with respect to Iron Arrow. First, evidence

indicates that a central tenet of the Society's philosophy

is the public peer recognition that membership should

command. The obviousness of Iron Arrow’s ceremonies,

such as its “tapping” or the tradition that new initiates

wear certain Indian jackets, insures that all members

of the campus community are aware upon whom the

honor of membership has been bestowed. Second, Iron

Arrow’s membership is not limited to students, but

also includes alumni, staff, faculty members, and university

administrators. Thus, the suggestion that the

contributions, efforts, and achievements of women can

never rise to the level of male accomplishments on

campus necessarily infects the academic atmosphere of

the entire University. We are unable to imagine a

single federal program which, even though on its face

administered in a non-discriminatory manner, escapes

the taint of this discrimination.

It is srecisely because Iron Arrow purports to

represent the best at the University in terms of

achievement and because it in fact commands so much

respect among members of the campus community that

the effects of the Society's discriminatory practices

are so pervasive and so pernicious. We are disturbed

that the University community, which in theory premises

App. 33

relations among its members upon the free and vigorous

interplay of ideas, should classify and stigmatize the

quality of those ideas solely because of the sex of their

author, whether male or female.”

“Consider, for example, a woman chemistry professor who

secures a federal contract to support her research and hires

several graduate students as assistants. In such a program, which

is not directly related to teaching, the motivation of this professor

in conducting her research and the motivation of her female

research assistants may be adversely affected, in a subtle manner,

because they know that the University community will never

formally recognize and accept, through the mechanism of the Iron

Arrow Society, that their work is of the same quality as that of

male students or faculty.

In our previous opinion, we noted that:

While we do not reach the ultimate question as to what, if

anything, would be done by the University to completely

withdraw assistance from Iron Arrow in order to bring

itself into compliance without abandoning its males-only

policy, we conclude that we are unable to imagine any

continued association with the University of Miami that, in

light of its history, would not constitute a continuation of

the “substantial assistance” which the trial court found to

exist.

652 F.2d at 448. In light of this statement, and since in any federal

contract a school captures some portion of the funds to support its

overhead, including the central] administration and very often

expenses such as student activities, Iron Arrow benefits from the

federal support that the Office of the President directly received

as a result of the allocation of overhead from federal contracts.

Because of our broader holding that each federally assisted program

at the University is necessarily discriminatory, it is unnecessary

for us to determine the impact of Title IX'’s program-specific

sanctions upon the direct federal support from overhead received

by general administrative entities such as the University’s Office

of the President.

App. 34

In its North Haven decision, the Supreme Court

quotes approvingly from HEW'’s Title IX regulations

and from the Finch decision, upon which we rely. The

Supreme Court stated that:

The Department [HEW] recognized that

section 902 limited its authority to terminate

funds to particular programs that were found

to have violated Title IX, and it continued:

“Therefore, an education program or

activity or part thereof operated by a recipient

of federal financial assistance administered

by the Department will be subject to the

requirements of this regulation if it receives

or benefits from such assistance. This

interpretation is consistent with the only

case specifically ruling on the language

contained in Title VI, which holds that Federal

funds may be terminated under Title VI

upon a finding that they are ‘infected by a

discriminatory environment .. . Board of

Public Instruction of Taylor County, Florida

u Finch, 414 F.2d 1068, 1078-79 (5th Cir.1969).”

40 Fed.Reg. 24128 (1975).

By expressly adopting the Fifth Circuit opinion

constructing Title VI as program-specific, HEW

apparently indicated its intent that the Title

IX regulations be interpreted in like fashion.

So read, the regulations conform with the

limitations Congress enacted in sections 901

and 902.

102 S.Ct. at 1927 (footnote omitted).

App. 35

[6] Thus, we find that the Supreme Court’s opinion

in North Haven directly supports our broad reading

that the program-specific prohibition of Title IX applies

when a discriminatory program is “benefitted” by federal

financia] assistance or when a federally assisted program

itself is infected by a discriminatory environment.”

In assessing the impact of Iron Arrow’s male-only

policy upon the University community, we are of the

belief that its effect upon women is most analogous to

that of a discriminatory admissions policy at an educational

institution. While a discriminatory admissions policy

precludes women from all of the benefits of educational

programs, Iron Arrow’s practices more subtlely

undermine the self-worth of women who participate in

these programs. Both, however, share the same general

pervasive effect upon a university community and neither

Iron Arrow nor an admissions program is usually the

direct recipient of federal dollars. Since many courts

“Congress explicitly relied upon the same language from the

Finch decision when it reviewed the HEW regulations for their

consistency with Title IX. See Sex Discrimination Hearings at

188-89.

We also note the need to defer to agency expertise in construing a

statute when that agency is charged with the statute's administration.

See NLRB wv. Bell Aerospace Co., 416 U.S. 267, 274-75, 94 S.Ct.

1757, [176162] 40 L.£d.2d 134 (1974); Sands, 2A Sutherland's Statutes

and Statutory Construction, §49.05 at 238 (4th ed. 1973). While the

Supreme Court in North Haven recognized the same principle,

the Court did not rely on this analysis because of the agency's

fluctuating interpretations of the employment portion of HEW’s

regulations. See 102 S.Ct. at 1927, n. 29. Since the Secretary has

consistently applied Regulation 86.31(bX7), we do not face a similar

restriction in relying upon the agency's interpretation.

App. 36

and Congress have consistently condemned discriminatory

admissions policies,“ we adopt their analyses in further

support of our conclusion.

Title VI originally proscribed racial discrimination

in higher education only with respect to admissions. 42

U.S.C. §2000c6ia"2) (1964). A college student was protected

from discrimination only if he or she was denied admission

or was not permitted to continue attending a public

college. Discriminatory facilities, such as segregated

dormitories or classrooms, were not by themselves

grounds for action unless they rose to the level of an

admissions decision by forcing the student to discontinue

attendance at a school. See 1966 Wis.L.Rev. 1252, 1256.

Congress extended its concern with admissions to

cases of sex discrimination when it adopted Title IX.

During Congressiona] evaluation of HEW'’s regulations,

Senator Bayh, Title IX’s author, forwarded a legal opinion

which reveals that Congress was well aware of the

interpretation we impart to HEW’s Regulation. The

opinion stated that admissions and similar policies of a

general pervasive nature “unavoidably” infect each

assistance program or activity and are thus covered by

Title IX:

The proposed regulations arguably reflect a

position on the part of the agency that, for

purposes of determining compliance, the

educational activities of institutional recipients

“See note 9, supra, for Title IX’s exceptions to prohibitions

against discriminatory admissions. These exceptions are due to

historical concerns and do not undermine our general discussion

about admissions, which follows.

may, where general admissions policies are

concerned, be viewed as an individual entity.

Where less pervasive forms of discrimination

are involved, hcwever, the regulations seem

to contemplate a program by program approach

to coverage. .. . Whole fund cutoffs. . . are

apparently limited by the regulations, however,

to cases involving admissions policies or other

pervasive practices affecting all assisted

programs or activities conducted by the

institution.” Letter to Honorable Birch Bayh

from Barbara Dixon, American Law Division,

Library of Congress, Dec. 20, 1974, Sex

Discrimination Hearings at 188-91.

Courts adopting a narrow reading of the

programmatic prohibitions of Title IX consistently have

conceded the inapplicability of their analysis to an

institution’s pervasive practices that go beyond discrete

academic or non-academic programs, when they have

addressed the issue. For example, in Rice v. President

& Fellows of Harvard College, 663 F.2d 336 (1st Cir.

1981), cert. denied, 456 U.S. 928, 102 S.Ct. 1976, 72

L.Ed.2d 444 (April 20, 1982), the court dismissed appellant's

complaint alleging sex discrimination in the awarding

of grades and other matters at Harvard Law School.

The court held that the appellant failed to allege

discrimination in any specific federally funded programs

and that the educational institution itself could not be

“While we do not rely on all aspects of the reasoning of the

quoted opinion, because we do not explicitly find that the institution

as a whole is the relevant program or entity, we note that the

opinion placed before Congress the same “pervasive practice”

theory which we embrace.

App. 38

interpreted as the “program” under Title IX. Yet the

Rice court noted that a different result would obtain if

a pervasive policy such as admissions was challenged.

The court stated, “One who is discriminated against in

seeking admission is denied access to all educational

programs and activities within an institution, and the

entire body of programs within the school is tainted.”

663 F.2d at 339, n. 2.

Similarly, in Hillsdale College v. HEW, 696 F.2d

418 at 428-29 (6th Cir.1982), a case in which students’

receipt of federal loans and grants was held to subject

only the student loan and grant program itself and not

the entire school to litle IX’s prohibitions, the court

distinguished the case of Bob Jones University u Johnson,

396 F.Supp. 597 (D.S.C.1974), aff'd 529 F.2d 514 (4th

Cir.1975), on its facts.” The Hillsdale College court

argued that the Bob Jones court did not have to face

squarely the institutional/programmatic conflict because

the Bob Jones case involved race discrimination respecting

admissions, which\tainted all programs and activities

within that institution rather than merely a single

program at the school. Other courts have made this

same distinction. See Othen vu. Ann Arbor School Board,

507 F.Supp. 1376, 1387 (E.D.Mich.1981), affirmed 699

F.2d 309 (6th Cir.1981); University of Richmond v. Bell,

543 F.Supp. 321 (E.D.Va.1982).

At this point, it is important to emphasize that we

do not rely on what has come to be known as the

“The Bob Jones court held that Bob Jones University is

subject to the race discrimination ban of Title VI, 42 U.S.C. 2000d

et seq., even though it did not receive any direct federal funding,

because several of its students received Veterans Administration

benefits that were applied to pay tuition at the school.

App. 39

“benefit theory” or the “institution as program” cases.”

The “benefit theory” focuses on the type of assistance

and argues that federal funds to one program may

subject another program to Title IX because these

funds “free up” institutional funds for use in non-directly

funded discriminatory programs. The related “institution

as program’ cases focus on the definition of “program”

or “recipient” and hold that the entire educational

institution may be defined as the program receiving

federal assistance for the purposes of Title IX. These

theories arise most frequently where student financial

aid is used as a device to subject an institution to the

proscriptions of Title IX or where a school's athletic

programs are allegedly discriminatory. E.g., Bob Jones;

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

cert. granted, ___U.S.___, 103 S.Ct. 1181, 74 L.Ed.2d

—___ (1983); Haffer vu. Temple University, 688 F.2d 14

(3d Cir.1982), affirming 524 F.Supp. 531 (E.D.Pa.1981);

Wright v. Columbia University, 520 F.Supp. 789

(E.D.Pa.1981) (handicap discrimination under § 504 of

Rehabilitation Act); Poole v. South Plainfield Board of

Education, 490 F.Supp. 948 (D.N.J.1980) (handicap

discrimination under § 504 of Rehabilitation Act). Contra,

Hillsdale College; University of Richmond; Bennett v.

West Texas State University, 525 F.Supp. 77

(N.D.Tex.1981), reversed, 698 F.2d 1215 (5th Cir. 1981).

We note the careful distinction which must be drawn

“Our non-reliance, of course, should not be taken to indicate

our disapproval of these approaches. Nor should our holding, that

the discriminatory practices of outside organizations affecting a

central and overriding aspect of a university's academic mission

are properly attributable to the university itself, be construed as

an implicit ruling that practices involving less crucial issues

automatically fail to subject a university to Title IX's sanctions.

App. 40

between the statement that an educational program

may be defined as an educational institution for vurposes

of Title IX and the portion of our holding which states

that Iron Arrow’s practices, because of their centrality

to the University’s academic mission and the close

historical ties between the Society and the University,

are attributable to the University itself.

Finally, we find that those cases upon which

appellants rely for the proposition that the Secretary

must directly “trace” federal funds to Iron Arrow to

subject the University to Title IX are factually inapposite.

See Othen; University of Richmond; Bennett. These

cases generally deal with the applicability of Title IX

to athletics; hence they concern discrete programs which

do not affect the entire academic structure of the

University.

IV. CONCLUSION

Education is a unique force in our society for

eliminating the effects of past discrimination. Thus,

discrimination in education should be examined with a

particularly searching light. Congress has determined

that no person shall, on the basis of sex, be denied the

benefits of or be subjected to discrimination in federally

assisted education programs or activities. As the recent

North Haven case made clear, this ban is restricted to

federally funded programs or activities. Yet the net of

benefits provided by such activities is cast widely, and

the possible discriminatory acts and effects which may

subject a program to Title IX’s cutoff sanctions are

consequently broad.

App. 41

In this case, Iron Arrow’s unique historical affiliation

with the University of Miami constitutes “substantial

assistance,” albeit non-tangible, which subjects the

University to termination of federal funds. This is so

because the all-male honor society, in light of its renowned

reputation, by its very existence unavoidably and

necessarily taints each and every federally assisted

program at the University. Thus, while the University

itself may believe it is acting in a non-discriminatory

manner, the effect of Iron Arrow’s discriminatory practices

is such that all the University’s programs and activities

are, in the end, discriminatory. The practices of Iron

Arrow, therefore, are properly attributable to the

University for purposes of determining compliance with

Title IX.

Since we find that this case continues to present a

live controversy, we deny appellees’ Suggestion of

Mootness and Motion for Remand. Since we also find

that the Supreme Court's decision in North Haven,

because of its reliance upon Board of Public Instruction

v. Finch, not only permits our approving the Secretary's

actions, but compels such a result, and because we also

find that the language of Title IX and its legislative

history support this conclusion, we reinstate our prior

decision in this case, 652 F.2d 445 (5th Cir. 1981), that

Reg. 86.31(b\(7) is within the scope of the Secretary's

authority under Title IX both on its face and as applied.

We again affirm the district court’s denial of appellants’

request for an injunction.

AFFIRMED.

RONEY, Circuit Judge, dissenting:

App. 42

I respectfully dissent. I would remand the case to

the district court for a determination of whether there

continues to be a case or controversy in this case. The

Women’s Commission of the University of Miami filed

an amicus curiae brief stating that it considers and

reviews “the policies, procedures and attitudes which

affect the status of women at the University of Miami,

and [makes] recommendations to improve the status of

women. Although the brief supports the appellee's

position and the conclusion of the majority on the merits,

the first point made therein is that “the action should

be dismissed because this case no longer presents a

justiciable case or controversy within the meaning of

Article III of the U.S. Constitution.” Following is an

excerpt of the amicus brief which argues the point:

During the pendency of this appeal, the

University of Miami has categorically stated

that regardless of the outcome of these

proceedings, Iron Arrow may not associate

with the University of Miami unless it registers

as a “student organization.” To be recognized

as a student organization at the University,

Iron Arrow must adopt a policy of

nondiscrimination on the basis of sex, and

therefore must admit female and male members.

As a result of this independent decision by

the University of Miami, this Court can no

longer accord Iron Arrow the relief it seeks in

this action against the Secretary. Regardless

of how this Court rules on the scope and coverage

of Title IX, and even if it were to hold that

consonant with Title IX Iron Arrow could return

to the campus with its sex-discriminatory

App. 43

practices intact, Iron Arrow would be unable

to do so. Therefore, this case is now moot and

should be dismissed.

Moreover, the exception to the mootness

doctrine for allegedly illegal actions “capable

of repetition yet evading review,” has no

application here. Southern Pacific Terminal

Co. v. ICC, 219 U.S. 498 [31 S.Ct. 279, 55 L.Ed.

310] (1911). This exception is limited to situations

where the action under challenge is too short

in duration to be fully litigated before it expires

or ceases. See, e.g. First National Bank of

Boston v. Bellotti, 435 U.S. 765 (98 S.Ct. 1407,

55 L.Ed 7] (1978) (restrictions on candidacy

or parfcipation in state elections); Sosna v.

Towa, A19 U.S. 393 [95 S.Ct. 553, 42 L.Ed.2d

532] (1975) (durational residency requirements);

Roe v. Wade, 410 U.S. 113 [93 S.Ct. 705, 35

L.Ed.2d 147] (1973) (anti-abortion statute). In

such cases there must also be a reasonable

expectation that the same plaintiff would be

subject to the same action again. Weinstein v.

Bradford, 423 U.S. 147 [96 S.Ct. 347, 46 L.Ed.2d

350] (1975). Clearly, this is not the kind of case

where there might be insufficient time for a

live controversy to be fully litigated. Nor is

there any reason to believe that Iron Arrow

will be the subject of future action by the

Secretary, because the University has

independently adopted a policy in full accord

with the Secretary’s position.

(footnotes omitted)

App. 44

The defendant Department of Education has likewise

filed a suggestion of mootness and a motion to remand.

That brief also suggests that the University of Miami

may have now changed its position so that, based on its

own non-discrimination policy, the University will not

permit Iron Arrow to return to campus unless it agrees

to admit women and that this policy applies irrespective

of the Department of Education's enforcement efforts.

The Government reminds us that the initial question in

this litigation was the standing of Iron Arrow to bring

the suit against the federal agency. The case was initially

dismissed for lack of standing. This Court reversed in

light of the “unequivocal statement of the position of

the University of Miami that but for the action of the

Secretary of Health, Education and Welfare, it would

not have barred and would not in the future bar the

Iron Arrow Honor Society from its campus.” /Jron Arrow

Honor Society v. Califano, 597 F.2d 590, 591 (5th Cir.

1979).

The Government today appropriately argues that

a change in the University’s position would moot Iron

Arrow’s grievance against the Government defendant.

The brief argues:

[A]t the outset of this litigation, Iron Arrow

satisfied the personal stake requirement. Iron

Arrow’s inability to perform its functions on

campus plainly constituted sufficient injury in

fact. Although this injury was directly

attributable to the University’s decision to

expel Iron Arrow from campus, the University

had stated that this decision was based entirely

upon HEW’s threat of enforcement and that

but for this threat the University would permit

App. 45

Iron Arrow to return to campus. In these

circumstances, Iron Arrow’s injury could fairly

be traced to HEW’s conduct and would likely

be redressed by a favorable decision.

It then argues that if indeed Iron Arrow will not be

permitted to return to campus because of the University's

non-discriminatory position, then

Iron Arrow’s injury would be attributable solely

to the University’s independent decision to

keep Iron Arrow off campus, whatever position

may ultimately be taken by the Department

of Education. In such circumstances, Iron Arrow

no longer would have a sufficient stake in the

outcome of this litigation to satisfy Article III

and the case should be dismissed as moot.

These arguments compel a remand to the district

court to determine the present position of the University

with respect to Iron Arrow’s campus activities, as

determined by the Board of Trustees, and perhaps just

as importantly to determine the position of the

Department of Education in light of the University's

position and the Supreme Court's decision in North

Haven Board of Education v. Bell, 456 U.S. ___, 102

S.Ct. 1912, 72 L.Ed.2d 299 (1982). There is a possibility

that the plaintiff and the defendants are in agreement

on both the law and the facts in this lawsuit. The

Government's brief does not directly confront the merits,

but suggests the following in a footnote:

Prior to the Supreme Court's decision in

North Haven, the Department took the position

that University “assistance” to Iron Arrow of

App. 46

a nonfinancial nature was sufficient to invoke

Title IX coverage under the “significant

assistance” regulation. North Haven casts

considerable doubt on that analysis, however,

by holding that the validity of regulations

promulgated under Title IX depends on “the

program-specific limitation of §§901 and 902”

(50 U.S.L.W. at 4507 [102 S.Ct. at 1926]). The

lower federal courts of appeais are divided

over the proper reach of the statute to wholly

non-funded educational programs or activities

where some federal financial assistance goes

to the university. Compare Rice v. President

and Fellows of Harvard College, 663 F.2d 336

(1st Cir. 1981), cert. denied, [456 U.S. 928, 102

S.Ct. 1976, 72 L.Ed.2d 444] 50 U.S.L.W. 3838

(U.S. April 20, 1982) with Haffer vu. Temple

University, 688 F.2d 14 (3d Cir. 1982), relying

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

1982), petition for cert. filed Nov. 9, 1982 (S.Ct.

No. 82-792). See also the well-reasoned decision

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

321 (E.D. Va. 1982).

The decision by this Court only permits the Government

to enforce its regulations as it interpreted them at the

time of this suit, and does not require the Government

to adhere to that interpretation.

Although the court's opinion recites that Iron Arrow

vigorously opposed the motion of the Government to

remand for a determination of mootness, the thrust of

Iron Arrow’s position was to have this Court, at the

appellate level, decide issues which should first be

decided by the trial court. Iron Arrow concedes that

App 47

this case may now be moot, depending upon the present

position of the University and the Government. It requests

this Court to require the University and the Government

to file pleadings on the issues in this Court, and thereafier

determine whether the case is moot.

The cases concerning the proposition that voluntary

discontinuance of illegal activity does not operate to

remove the case from the ambit of judicial power are

conceptua. -aapplicable. The University is not a party

and not the object of injunctive relief. The Government

has not tried to render an injunction unnecessary by

discontinuing illegal activity. The facts have changed

so that the Government may well decide not to withhold

funds, regardless of Iron Arrow’s position as to whether

it can or can not, and regardless of what a federal court

might order.

In sum, it appears that the Court has reached out

to decide a difficult legal issue that may well have an

effect on other parties in a case where it has no effect

on the present parties.

On the merits, I would simply vacate our prior

opinion and remand to the district court to reconsider

in the light of North Haven. Assuming they are inclined

to do so, the parties ought to have a full chance to

litigate the facts of this case as they apply to the law in

light of that decision and its reference to “the program-

specific” limitations of §901 and §902. In my judgment,

the record in this case simply does not permit a decision

on the effect of North Haven on this case.

I would remand to the district court for consideration

of mootness, and if there is still a case or controversy,

App. 48

to decide the merits on the facts as they may be found

in relation to the “program-specific” gloss on §901 and

§902, and on the regulations as they may now be

interpreted by the Government in the light of North

Haven.

App. 49

SUPREME COURT OF THE UNITED STATES

OFFICE OF THE CLERK

WASHINGTON, D.C. 20543

June 28, 1982

Ms. Elizabeth J. du Fresne

1782 One Biscayne Tower

Two South Biscayne Boulevard

Miami, FL 33131

Re: Iron Arrow Honor Society, etc.,

v. Richard S. Schweiker, Secretary,

Department of Health and Human Services,

et al.

No. 81-835

Dear Ms. du Fresne:

The Court today entered the following order in

the above entitled case:

The petition for a writ of certiorari is granted.

The judgment is vacated and the case is remanded to

the United States Court of Appeals for the Fifth Circuit

for further consideration in light of North Haven Board

of Education v. Bell, 456 U.S. ____ (1982). Justice Brennan,

Justice White, Justice Marshall and Justice Blackmun

dissent.

Very truly yours,

/s/ Alexander L. Stevas

Alexander L. Stevas, Clerk

App. 50

No. 81-835. Iron Arrow Honor Society, etc., Petitioner

v. Richard S. Schweiker, Secretary, Department of

Health and Human Services, et al.

June 28, 1982. On petition for writ of certiorari to

the United States Court of Appeals for the Fifth Circuit.

The petition for writ of certiorari is granted. The judgment

is vacated and the case is remanded to the United

States Court of Appeals for the Fifth Circuit for further

consideration in light of North Haven Board of Education

v. Bell, 456 US ___, 72 LEd2d 299, 102 SCt 1912 (1982).

Justice Brennan, Justice White, Justice Marshall and

Justice Blackmun dissent.

Same case below, 652 F2d 445.

App. 51

IRON ARROW HONOR SOCIETY, a “tap”

or recognition association for men, et al.,

Plaintiffs-A ppellants,

v.

Richard S. SCHWEIKER, Secretary of the Department

of Health and Human Services, et al.,

Defendants-A ppellees.

No. 80-5663.

United States Court of Appeals,

Fifth Circuit.

Unit B

Aug. 3, 1981.

Honor society brought action seeking to enjoin

Department of Health, Education and Welfare from

issuing or interpreting regulation in such way as to

deter university from permitting society to conduct

certain functions on university campus, and seeking

also declaration of rights. On remand, after previous

appeal, 597 F.2d 590, the United States District Court

for the Southern District Florida, at Miami, Eugene P.

Spellman, J., 499 F.Supp. 496, entered judgment from

which the society appealed. The Court of Appeals,

Tuttle, Circuit Judge, held that: (1) regulation under

which HEW threatened termination of substantial

contribution of federal funds to University of Miami on

ground that university had given substantial assistance

to honorary recognition society which elected only men

to membership was proper as effectuating provisions

App. 52

of civil rights statute and was consistent with achievement

of objectives of the statute authorizing the financial

assistance in connection with which the action was

taken, and (2) where it was clear that honorary recognition

society of university could not exist without university,

there was “substantial assistance” from university to

society, and injunctive relief was properly refused against

threatened termination of substantial contribution of

federal funds from HEW to university.

Affirmed.

1. Colleges and Universities —4

Regulation under which former Department of

Health, Education and Welfare threatened termination

of substantial contribution of federal funds to University

of Miami on ground that university had given substantial

assistance to honorary recognition society which elected

only men to membership was proper as effectuating

provisions of civil rights statute and was consistent

with achievement of objectives of the statute authorizing

the financial assistance in connection with which the

action was taken. Education Amendment of 1972, §§901

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

2. Civil Rights —9.5

Where it was clear that honorary recognition society

. — could not exist without university, there

“substantial assistance” from university to society,

onal elected only men to membership, ahd injunctive

relief was properly refused against threatened termination

of substantial contribution of federal funds from former

App. 53

Department of Health, Education and Welfare to

university. Education Amendments of 1972, §§901 et

seq., 902, 29 U.S.C.A. §§1681 et seq., 1682.

Appeal from the United States District Court for

the Southern District of Florida.

Before TUTTLE, RONEY and ANDERSON, Circuit

Judges.

TUTTLE, Circuit Judge:

This is an appeal from the judgment of the trial

court, 499 F.Supp. 496, dismissing a complaint seeking

an injunction to forbid the former Department of Health,

Education and Welfare from terminating its substantial

contribution of federal funds to the University of Miami.

The termination threat arose from the fact that Iron

Arrow is an honorary-recognition society of the University

which elects only men to membership and which the

Secretary of HEW had determined gave “substantial

assistance” to Iron Arrow.

There are two substantial questions raised by the

Society which must be resolved on this appeal: 1) Were

the HEW regulations upon which the Secretary acted

in excess of the authorization contained in the statute;

and 2) Did the University actually contribute “substantial

assistance” to the Society?

The regulation in effect at the time of the threatened

cutoff of federal funds from the University was Section

86.-31(bX7) which provides that:

App. 54

Except as provided in this subpart, and

providing any aid, benefit, or service to a student,

a recipient shall not, on the basis of sex: . . .

(7) Aid or perpetuate discrimination against

any person by providing significant

assistance to any agency, organization,

or person which discriminates on the

basis of sex in providing any aid, benefit

or service to students or employees.

Statutory jurisdiction for the issuance of the

regulation is 20 U.S.C. §1682. It authorizes -ertain

federal agencies, including HEW to issue regulations

to “effectuate” the provisions of §1681.' The enforcement

provisions of §1682 provide:

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 requirement, but such termination or refusal shall

be limited to the .. . recipient as to whom such a

finding has been made, ana shall be limited in its effect

‘Title IX provides in pertinent part:

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

sex, be excluded from participation in, be denied the

benefits of, or be subjected to discrimination under any

education program or activity receiving federal financial

assistance.

20 U.S.C. §1681.

App. 55

to the particular program, or part thereof, in which

such noncompliance has been so found... .

20 U.S.C. §1682.

The Secretary explained the import of the regulation

in the following manner:

Section 86.31(bX7) prohibits a recipient from

assisting another party which discriminates

on the basis of sex in serving students or

employees of that recipient. This section might

apply, for example, to financial support by the

recipient to a community recreational group

or to official institutional sanction of a

professional or social organization. Among the

criteria to be considered in each case are the

substantiality of the relationship between the

recipient subject to the regulation and the

other party involved, including the financial

support by the recipient, and whether the other

party's activities relate so closely to the

recipient's educational program or activity, or

to students or employees in that program,

that they fairly should be considered as activities

of the recipient itself. (Under §86.6(c), a recipient's

obligations are not changed by membership in

any league or other organization whose rules

require or permit discrimination on the basis

of sex).

v

39 Fed. Reg. 22229 (1974).

The effect of this interpretation of the regulation

is to say that although any cutoff of funds is normally

App. 56

to be limited to the program or activity of the recipient

in which the discrimination occurs, a different standard

applies where the recipient gives substantial assistance

to what is called by the parties an “outside” organization

in which event the Secretary is to consider the

substantiality of the relationship between the University

and the other party and whether the other party's

activities relate so closely to the University’s educational

program or activity, or to students or employees in

that program, that these activities of the University

itself. In such event, the regulation would permit the

cutoff of federal funds to the University.

[1] We conclude that this regulation clearly

“effectuates” the provisions of §1681 with respect to

its programs and activities and that it is “consistent

with achievement of the objectives of the statute

authorizing the financial assistance in connection with

which” the action is taken. As this Court has said in

Coca-Cola Co. v. Atchison T. & S.F.Ry., 608 F.2d 213, 222

(5th Cir. 1979): “Courts generally grant ‘great deference’

to an agency’s interpretation of its enabling statute.”

See also Dougherty Co. School System v. Harris, 622

F.2d 735, 737 (5th Cir. 1980) where we stated that the

Secretary is entitled to “great latitude” in effectuating

Title IX, 622 F.2d 735, 737 (5th Cir. 1980).

The original notification from the Secretary to the

University outlined the nature of the “substantial

assistance” which Iron Arrow received from the

University in the following discussion:

The assistance to the Iron Arrow Honor Society

is of two types. First, Iron Arrow benefits

from recognition and identification with the

-

‘

App. 5

University, thereby enhancing its prestige.

Second, Iron Arrow benefits from tangible

support such as secretarial service, alumni

mailings, and the use of meeting rooms.

The following background information, revealed

in the investigation, is evidence of the Iron

Arrow’s recognition by and identification with

the University: The Iron Arrow Society was

established in 1926 by Dr. Bowman Foster

Ashe, the first President of the University of

Miami. In 1950, President Ashe gave the Society

a University Charter and “signed into law” a

Constitution for the organization, affixing his

signature and title as President. According to

the organization’s head, Iron Arrow is the only

campus group to receive a charter from the

University.

The Society's constitution, as amended, allows

for members to be either male students, faculty,

administrative officials, staff or alumni of the

University. It is stipulated that members “shall

be selected on the prime basis of character

and love for Alma Mater, with strong secondary

criteria of leadership, scholarship, and humility

as defined in the Ritual Book of the Tribe.”

The now operative amendments of the Society's

constitution were “signed into law, A.D. 1971”

by the current chief, or head, of the Society,

and by you, the President of the University,

with your title so designed.

A brochure prepared by the Society says that

“Iron Arrow remains the University of Miami's

App. 58

first and most esteemed tradition.” The purpose

of Iron Arrow as stated in the University’s

directory of student organization is “to recognize

junior and senior men, faculty, staff, and alumni

for meritorious achievement and outstanding

contributions to the University and its

community.” In the University’s catalogue,

reference is made to Iron Arrow as “the highest

recognition society for men.”

The prestigious position of Iron Arrow is further

seen in the location of a monument which stands

on a knoll outside the student union building.

A plaque thereon says, in part: “Iron Arrow —

founded in 1926 as the University’s highest

honor.”

Among other visible signs of Iron Arrow’s

prestige is a plaque on the wall just inside the

entrance to the Ashe Building which houses

administrative offices. The names of all members

of Iron Arrow are included on additional mounts

on the wall. In front of the plaque is a life-size

statute of Dr. Ashe, the University’s first

President, and the founder of Iron Arrow.

Nearly all of the faculty and students interviewed

by the investigators confirmed the fact that

Iron Arrow is looked upon as the most

prestigious organization on campus, and, as

such, is particularly advantageous in employment

opportunities.

In addition to the above described recognition

received by Iron Arrow from the University,

App. 59

the investigation revealed evidence of tangible

support of Iron Arrow from the University.

For example, the alumni association does

mailings and covers postage for Iron Arrow

material, although the organization itself pays

for printing costs. The Student Activities Office

provides secretarial support. Furthermore, the

University assists Iron Arrow by handling three

separate accounts from them in the University’s

finance office. Iron Arrow has a room in the

student union building with its name outside

the door. Additionally, Iron Arrow utilizes a

projection room in the athletic building where

it also maintains certain objects or symbols

pertaining to the organization.

In addition to a faculty member regularly serving

as advisor to Iron Arrow, there is further

substantial support for the Society by the

University in the various procedures and

ceremonies associated with the selection of

members. There are “screening committees”

in each school of the University, composed of

student and faculty members. The “Tapping”

ceremony occurs during classes so that, when

a faculty member is tapped for membership,

he is led away by Iron Arrow members to join

others in ceremonies at the monument outside

the student union building.

{2} Although Iron Arrow and the University agreed

thereafter that the latter would cease furnishing all of

the physical assistance outlined in the foregoing letter

with the exception of the use of the mound in front of

App. 60

the student union building and the statute there for

“tapping” for new members, the Secretary insisted

that the non-tangible support was still sufficient to

constitute “substantial assistance.’ We have recited

the nature of this non-tangible support to indicate the

basis on which the Secretary could well conclude that

the activities of Iron Arrow in its sex discrimination

policies were imputable to the University itself. Iron

Arrow simply would not exist but for the University of

Miami. The University created the honorary society

apparently as an activity of great importance in the

building of student morale and leadership. This cannot

be denied. Although the University could exist without

Iron Arrow, Iron Arrow could not exist without the

University. The Society's argument that we should not

consider this “substantial assistance” enough to bring

it within the regulation simply falls of its own weight.

While we do not reach the ultimate question as to

what, if anything, would be done by the University to

completely withdraw assistance from Iron Arrow in

order to bring itself into compliance without abandoning

its males-only policy, we conclude that we are unable to

imagine any continued association of the Society with

the University of Miami that, in light of its history,

would not constitute a continuation of the “substantial

assistance” which the trial court found to exist.

We find that no proper final order has been entered

in this case under F.R.C.P. 58. The order of dismissal is

therefore not appealable. However, the denial of the

permanent injunction is appealable and that order we

now affirm.

The judgment is AFFIRMED.

App. 61

IRON ARROW HONOR SOCIETY, a “tap” or recognition

association for men; and John I. Benedict, individually

and as Chief of Iron Arrow Honor Society,

Plaintiffs,

v.

Shirley M. HUFSTEDLER, Secretary of the Department

of Education; William H. Thomas, Director, Office

for Civil Rights, Department of Health, Education

and Welfare (Region IV) et al.,

Defendants.

NO. 76-1850-Civ-EPS.

United States District Court,

S. D. Florida,

Miami Division.

Aug. 12, 1980.

Honor society brought action seeking to enjoin

the Department of Health, Education and Welfare from

issuing or interpreting regulation in such a way as to

deter university from permitting society to conduct

certain functions on university camps, and seeking

declaration of rights. On remand, after reversal, 597

F.2d 590, of dismissal of the complaint against HEW by

James Lawrence King, J., the District Court, Spellman,

J., held that: (1) Congress’ authorization of regulatory

jurisdiction to effectuate statutory requirement that

no person shall be discriminated against on the basis of

sex in any education program or activity receiving

federal financial assistance was not exceeded by regulation

precluding educational institutions receiving such

App. 62

assistance from providing significant assistance to any

organization discriminating on the basis of sex in providing

any aid, benefit or service to students or employees,

which reaches organizations that do not directly receive

federal support; (2) regulation was not impermissibly

vague or arbitrary; (3) university was providing

“significant assistance” to plaintiff honor society; and

(4) enforcement of the regulation as t> plaintiff honor

society based on unsolicited complaint from the university

community was not arbitrary and discriminatory in

light of evidence as to extraordinary value of membership

in the society to career advancement.

Declaration accordingly.

1. Administrative Law and Procedure —760

Civil Rights —9.5

District court could not simply substitute its

judgment for that of agency, and thus regulation of the

Department of Health, Education and Welfare and HEW’s

interpretation of that regulation would be upheld unless

they were unreasonable, arbitrary, beyond statutory

jurisdiction or inadequately consistent with procedural

requirements. 5 U.S.C.A. §706.

2. Health and Environment —20

Issuance of challenged regulation by the Department

of Health, Education and Welfare was final agency

action, and the agency's stated interpretation of the

regulation was also final, given its nonreviewability by

persons challenging it other than through the lawsuit,

App. 63

and thus questions presented were ripe for judicial

review. 5 U.S.C.A. §704.

3. Civil Rights —9.5

Congress’ authorization of regulatory jurisdiction

of the Department of Health, Education and Welfare to

effectuate statute prohibiting sexual discrimination in

any educational program or entity receiving federal

assistance was not exceeded by regulation reaching

honor societies not directly receiving federal support.

Education Amendments of 1972, §§901-903, 20 U.S.C.A.

§§1681-1683.

4. Administrative Law and Procedure —390

If standards governing application of regulation

were So vague as to make inevitable arbitrary enforcement

of the regulation, regulation could be struck down as

being in violation of the Administrative Procedure Act. 5

U.S.C.A. §706.

5. Civil Rights —9.5

Department of Health, Education and Welfare

regulation providing that educational institution receiving

federal assistance shall not provide significant assistance

to any organization which discriminates on basis of sex

in providing aid, benefit or service to students or

employees was not impermissibly vague in light of fact

that, simultaneously with promulgation of the regulation,

HEW established standards which would guide

enforcement.

App. 64

6. Civil Rights —9.5

Department of Health, Education and Welfare

regulation providing that educational institution which

receives federal] assistance shall not provide significant

assistance to any agency, organization or person which

discriminates on the basis of sex in providing any aid,

benefit or service to students or employees is not

arbitrary, in that it is not contrary to, but instead is

fully consistent with, governing statutes. Education

Amendments of 1972, §§901.-903, 20 U.S.C.A. §§1681-1683.

7. Civil Rights —9.5

University was providing “significant assistance”

to honor society within meaning of HEW regulation

precluding educational institution receiving federal

assistance from providing such assistance to organization

which discriminates on the basis of sex in providing

any aid, benefit or service to students or employees, in

light, among other things of university's allowing society

to use university property and special recognition given

the society by university, and thus university was not

in compliance with the regulation; that the society may

have given more than it received from university

supported rather than weakened such conclusion.

Education Amendments of 1972, §§901, 902, 20 U.S.C.A.

§§1681, 1682.

See publication Words and Phrases for other

judicial constructions and definitions.

App. 65

8. Constitutional Law —278.5X1)

Fact that Department of Health, Education and

Welfare chose to enfore regulation precluding educational

institutions receiving federal assistance from providing

significant assistance to organizations discriminating

on the basis of sex in providing aid, benefit or service

to students or employees by seeking voluntary compliance

by university rather than formal hearing process did

not deny due process to honor society which was the

object of the proceeding. U.S.C.A.Const. Amend. 14.

9. Civil Rights —9.5

Enforcement against honor society on the basis of

unsolicited complaint from university community of

HEW regulation providing the educational institution

receiving federal assistance shall not provide significant

assistance to any organization which discriminates on

the basis of sex in providing any aid, benefit or service

to students was not arbitrary or discriminatory in light

of evidence as to the extraordinary value of membership

in the society in question to career advancement.

Education Amendments of 1972, §§901, 902, 20 U.S.C.A.

§§1681, 1682.

10. Civil Rights —9.5

Should university decide to resume some contacts

with honor society which precluded women from

membership, the Department of Health, Education and

Welfare could not consistently with the Education

Amendments of 1972 being hearing to terminate the

university's general funding until HEW first sought

App. 66

voluntary compliance. Education Amendments of 1972,

§902, 20 U.S.C.A. §1682.

Elizabeth Du Fresne, Du Fresne & Du Fresne,

Miami, Fla., for plaintiffs.

Alexander Ross, Dept. of Justice, Washington, D.C.,

for defendants.

ORDER AND MEMORANDUM OPINION

SPELLMAN, District Judge.

Early in the morning, while the sky is still

pale with night and the dew still wet on the

grass, Iron Arrows begin to congregate at the

tapping mound. There, on a small knoll beneath

a shady ficus tree is the Iron Arrow monument.

A few sticks of wood are placed in the firebow],

and soon the smell of smoke begins to drift

across the campus. It is the tapping day.

(Plaintiffs’ Complaint p. 3).

Thus begins the tapping eeremony of the Iron

Arrow Honor Society, an organization steeped in tradition

and proud of its long association with the University of

Miami. A major part of the tradition of the organization

is its male — only membership policy. With the inexorable

movement toward recognition and advancement of

women's rights in the past decade, Iron Arrow’s exclusive

membership policy has naturally met strong opposition

and hostility, vet the organization has steadfastly refused

App. 67

to admit women, even when the federal government's

threatened withdrawal of access to the federal fisc

forced the University of Miami to disassociate itself

from Iron Arrow. Resisting this intrusion by the federal

government, which was apparently intended through

indirection to work a transformation in the sexual

attitudes of Iron Arrow, the organization has instead

fought back by filing the present action.

In this action, the plaintiffs seek to enjoin the

‘federal defendant from issuing or interpreting its

Regulation 86.31(b\(7) in such a way as to deter the

University of Miami from permitting the Iron Arrow

Honor Society to conduct certain functions on the

University campus. The plaintiffs also seek a declaration

of their rights with regard to the issuance and enforcement |

of Regulation 86.31(b\7). Jurisdiction is founded on 28

U.S.C. §§1331 and 2201, 20 U.S.C. §§1683 and 5 U.S.C.

§701, et seq.

This suit was originally brought by the plaintiffs

in October, 1976 against defendants Department of

Health, Education, and Welfare (hereafter “H.E.W.”)

and the University of Miami. The District Court heard

the case upon the plaintiffs’ demand for a temporary

injunction, denied temporary relief, and subsequently

dismissed the action as to the University, stating that

the plaintiffs have no federal cause of action against

the University. The Court also dismissed the complaint

as to H.E.W. on the ground that the plaintiffs lacked

standing to complain of an H.E.W. action which only

indirectly affected the plaintiffs. On appeal, the decision

of the District Court was affirmed as to the dismissal

of the complaint against the University, but reversed

App. 68

—»

as to the dismissal of the complaint against H.E.W., 597

F.2d 590 (5th Cir. 1979).

Referring to a statement made by the University

which this Court has been unable to find in the record

or the pleadings, the Fifth Circuit held:

In light of the unequivocal statement of the

position of the University of Miami that but

for the action of the Secretary of Health,

Education and Welfare it would not have and

would not in the future bar the Iron Arrow

Honor Society from its campus, the decision of

the district court on standing of the Society is

reversed.

Id., at 590.

The case is presently before this Court on cross —

motions for summary judgment. All the parties agree

that there are no factual issues to be resolved. Despite

the previous disimssal of the University defendant, the

Court has sua sponte joined the University of Miami as

an indispensable party in order to assure that adequate

relief can be afforded by the decision of this Court.

Fed.R. Civ.Proc. 19.

The facts are undisputed. In 1973, the Office of

Civil Rights, a subdivision of H.E.W., received a personal

complaint charging that Iron Arrow Honor Society

(hereafter “Iron Arrow’) systematically discriminated

against females by excluding them from membership

in the society. The complaint also charged that Iron

Arrow discriminated against American Indians, both

in membership policies and by adopting certain Seminole

App. 69

Indian customs and attire for the society's activities.

H.E.W. notified the University of Miami that these

complaints were being investigated, and in October,

1973 H.E.W. informed the University that the complaint

as to discrimination against American Indians was not

supported by the facts.

We do not find evidence to support a claim

that the Society's use of Indian ritual and

appurtenances is, per se, demeaning of either

Seminole or Mikasukee Indians or Indians in

general. Indeed, our investigation shows that

qualities of life and philosophy portrayed in

the Society's ritual show Indians in what must

be considered a positive or favorable light.

(Letter of William H. Thomas, Office of Civil Rights, to

the University of Miami, dated October 25, 1973).

The University was simultaneously informed that

consideration of the sex discrimination claim had been

postponed.

Our resolution of the sex discrimination

aspect of this complaint will have to await the

issuance of guidelines for the implementation

of Title IX of the Education Amendments of

1972. These should be ready sometime in the

fall, at which time we will pursue our

investigation into the status of the Iron Arrow

Society and the University’s obligations to

comply with the requirements of Title IX and

App. 70

implementing rules and regulations issued

pursuant to the legislation.

Id.

H.E.W. regulations implementing the Title I>.

legislation were subsequently issued and became effective

on July 21, 1975. On May 25, 1976, H.E.W.’s Office of

Civil Rights informed the University that it had concluded

its investigation of Iron Arrow and found that the

University was in violation of H.E.W. Regulation 45

C.F.R. 86.-31(b\(7), which states.

. a recipient shall not, on the basis of sex:

Aid or perpetuate discrimination against any

person by providing significant assistance to

any agency, organization or person which

discriminates on the basis of sex in providing

any aid, benefit or service to students or

employees: .

H.E.W. stated to the University,

Accordingly, we are informing you that in order

for the University of Miami to fulfill its

obligations under Title IX, it must either require

the Iron Arrow Honor Society to eliminate its

policy of excluding women or discontinue its

support of the Iron Arrow Society.

(Letter of William H. Thomas, Office of Civil Rights, to

the University of Miami, received May 25, 1976).

App. 71

The facts relied on in the above letter for the

conclusion that the University provided “significant

assistance” to Iron Arrow include the following: the

University’s provision of secretarial services, alumni

mailings, and meeting rooms to Iron Arrow; the

establishment of Iron Arrow by the founding President

of the University of Miami in the year that the University

was founded; the signature of the President of the

University on the Iron Arrow constitution; the charter

issued to Iron Arrow by the University; reference in

the University catalogue to Iron Arrow as “the highest

recognition society for men”; the existence of a monument

to Iron Arrow on a mound outside the University’s

student union building; other campus plaques and statutes

honoring Iron Arrow and its members; the University’s

acquiescence in the association of the University faculty

as advisors and as screening committees for admission

of new members to the society; and the Iron Arrow

tapping ceremony, which was regularly conducted on

the University’s campus.

In June, 1976, the University requested additional

time before compliance with the requirements of Title

IX was ordered and requested of H.E.W. that it consider

Iron Arrow's contention that it no longer received

significant assistance from the University. The extension

of time was granted, but recon: ideration of Iron Arrow’s

position did not alter H.E.W.’s findings, and H.E.W.'s

position with regard to seeking compliance by the

University remained unchanged. (Plaintiffs’ exhibit #3).

In September, 1976, after meetings with Iron Arrow

members, President Stanford of the University of Miami

requested of H.E.W. an additional extension of time

before any action was taken against the University.

App. 72

H.E.W. responded by allowing an extension until

December 15, 1976, upon the condition that the campus

tapping ceremony of Iron Arrow could not take place

until the compliance question was resolved.

The University thereupon prohibited Iron Arrow

m performing its tapping ceremony on the campus.

iron Arrow responded by bringing this lawsuit.

¢

I,

Scope of review.

The regulation which H.E.W. relied on in seeking

compliance by the University was adopted pursuant to

20 U.S.C. §1682, which states, in pertinent part,

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 .. . 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 of general

applicability which shall be consistent with

the statute authorizing the financia] assistance

in connection with which the action is taken.

. . . Compliance with any requirement adopted

pursuant to this section may be effected (1) by

the termination or refusal to grant or to continue

assistance under such program or activity to

any recipient as to whom there has been made,

App. 73

and shall be limited in its effect to the particular

program, or part thereof, in which such

noncompliance has been found .. . . Provided

however, That no such action shall be taken

until the department or agency concerned has

advised the appropriate person or persons of

the failure to comply with the requirement

and has determined that compliance cannot be

secured by voluntary means.

The statute to be implemented, 20 U.S.C. §1681,

provides, in pertinent part,

(a) No person in the United States shall, on

the basis of sex, be excluded from participation

in, be denied the benefits of or be subjected to

discrimination under any education program

or activity receiving Federal financial assistance,

except that: ...

(6) this section shall not apply to membership

practices —

(A) of a social fraternity or social sorority

which is exempt from taxation under section

5Olla) of Title 26, the active membership consists

primarily of students in an institution of higher

education, or

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

Young Women's Christian Association, Girl

Scouts, Boy Scouts, Camp Fire Girls, and

voluntary youth service organizations which

are so exempt, the membership of which has

traditionally been limited to persons of one

App. 74

sex and principally to persons of less than

nineteen years of age;

as

The plaintiffs present no constitutional! cha!lenge

to Congress’ delegation to H.E.W. of the power to

adopt regulations consistent with the statutory purpose.

Moreover, the regulations were issued in full compliance

with provisions regarding notice and comment rule.

making in the Administrative Procedure Act, 5 U.S.C.

§553, and the plaintiffs do not challenge the procedure

followed in issuing Regulation 86.31(b\7). 40 Federal

Register 24128.

The plaintiffs’ challenge to the regulation in question

is based on the grounds that it exceeds the statutory

delegation of authority, or is arbitrary, capricious, or

an abuse of discretion. Plaintiffs also contend that H.E.W.'s

interpretation of its regulation is unreasonable or

arbitrary, and that plaintiffs were denied a hearing or

other procedural safeguards available under 5 U.S.C.

§701, et seq.

Under he Administrative Procedure Act. 3 U.S.C.

$706, this Court’s scope of review of adminis'rative

action is broad enough to encompass all of the relief

sought by the plaintiffs including declaratory relief.

The statute requires this court, “{tlo the extent necessary

to decision and where presented . . . [t}o decide all

relevant questions of law, interpret constitutional and

statutory provisions, and determine the meaning and

applicability of the terms of an agency action.” 5 U.S.C.

§706.

App. 75

[1] This Court may not, however, simply substitute

its judgment for that of the agency. H.E.W.'s regulation

and its interpretation of that regulation will be upheld

unless they are unreasonable, arbitrary, beyond statutory

jurisdiction, or inadequately consistent with procedural

requirements. 5 U.S.C. §706; P-P.G. Industries, Inc. v.

Harrison, 587 F.2d 237, reh. denied 591 F.2d 102 (5th

Cir. 1979), reversed on other grounds _____ US. ,

100 S.Ct. 1889, 64 L.Ed.2d 525 (1980); Bank of Commerce

of Laredo v. City National Bank of Laredo, 484 F.2d 284

(5th Cir. 1973), cert. denied 416 U.S. 905, 94 S.Ct. 1609,

40 L.Ed.2d 109; Citizens to Preserve Overton Park, Inc.

v. Volpe, 401 U.S. 402, 91 S.Ct. 814, 28 L.Ed.2d 136

(1971).

{2} Plaintiffs final jurisdictional hurdles involve

the related issues of ripeness, finality of agency action

and exhaustion of administrative remedies. The plaintiffs

are not presently entitled to any further administrative

review of their claim. 20 U.S.C. §1682. Moreover, even

if such review were available, the issuance of the

challenged regulation is itself a final agency action

under 5 U.S.C. §704, and H.E.W.'s stated interpretation

of the regulation is also final, given its non-reviewability

by the plaintiffs other than through this lawsuit. Romec

Community Schools u. U. S. Dept. of Health, 438 F.Supp.

1021, 1027 (E.D.Mich. 1977) affirmed 600 F.2d 581 (6th

Cir. 1979). Thus, the case is appropriate for decision by

this Court and the questions presented are ripe for

judicial review Abbott Laboratories v. Gardner, 387

U.S. 136, 87 S.Ct. 1507, 18 L.Ed.2d 681 (1967).

App. 76

II.

Statutory jurisdiction for the issuance

of the regulation.

[3] 20 U.S.C. §1682 authorizes certain federal

agencies, including H.E.W., to is

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