# Petition — Iron Arrow Honor Soc. v. Heckler

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Petition
- **Published:** January 1, 1983
- **Citation:** 464 U.S. 67

## Text

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 rema

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385011_0121%3A1. Public record. Not legal advice.