Amicus Curiae Brief — McCaffrey v. Oona ex rel. Kate S.

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MOTION FILED

No. 98-101

AUG 19 1998

In The

Supreme Court of the United States

October Term, 1997

PATRICIA McCAFFREY, GERALD HILL

and RONALD LUNDY,

Petitioners,

OONA R.-S., A MINOR, BY KATE S.,

HER GUARDIANS, KATE S. AND KEN R.,

Respondents.

On Petition For Writ Of Certiorari To The

United States Court Of Appeals

For The Ninth Circuit

MOTION BY REDWOOD EMPIRE SCHOOLS

INSURANCE GROUP FOR LEAVE TO FILE

BRIEF AMICUS CURIAE AND BRIEF OF

AMICUS CURIAE SUPPORTING PETITIONER

Scott N. Kiver Rosert J. Henry

Law OFFICES OF General Counsel

Scott N. Kiver (Counsel of Record)

50 Old Courthouse Square School and College Legal

P.O. Box 3397 Services

Santa Rosa, CA 95402

707 569-9968 (telephone)

707 569-9959 (facsimile)

Sonoma County Office

of Education

5340 Skylane Boulevard

Santa Rosa, CA 95403

707 524-2690 (telephone)

707 573-0517 (facsimile)

Attorneys for Amicus Curiae

COCKLE LAW BRIEF PRINTING CO., (800) 225-6964

OR CALL COLLECT (402) 342-2831

QUESTION PRESENTED

Whether Congress intended that all student interaction is

an education “program or activity” as set forth in Title IX of

the Education Amendments of 1972, 20 U.S.C. 1681(a).

MOTION FOR LEAVE TO

FILE BRIEF AMICUS CURIAE

REDWOOD EMPIRE SCHOOLS INSURANCE GROUP

(hereinafter “RESIG”) respectfully moves for leave to file the

attached brief amicus curiae in this case. The consent of the

attorney for Petitioners has been obtained.! The consent of the

attorney for Respondent has been refused.

The interest of RESIG in this case arises from the follow-

ing:

1. RESIG is a joint powers insurance public authority

comprised of 43 public school districts in Sonoma County,

California, including Petitioners’ employer district, with

some 80,000 students. RESIG is organized pursuant to statu-

tory authority found at §§ 6500, et seg., of the California

Government Code.

2. RESIG filed an amicus curiae brief with the Court of

Appeals below and participated in the oral argument on the

issue presented in this brief: whether the Statutory construc-

tton and legislative history of Title IX of the Education

Amendments of 1972, 20 U.S.C. §§ 1681, er seq., precludes

all student conduct as constituting a grant recipient’s “pro-

gram or activity”;

3. Counsel of Record were co-counsel, with Larry J.

Frierson, in the first federal student-to-student sexual harass-

ment lawsuit filed under Title IX. Doe v. Petaluma City

School Dist., 830 F.Supp. 1560 (N.D.Cal.1993): Doe y.

Petaluma City School Dist., 54 F.2d 1447 (9th Cir. 1995):

reconsidered and revised, Doe By and Through Doe vy.

' Consent by Petitioners is filed herewith.

Petaluma City School Dist., 949 F.Supp. 1415 (N.D.Cal.1996).

If the Petition is granted, Amicus will request participation in

oral argument on the singular issue of Title IX’s statutory

construction.

In the Court of Appeals Petitioners argued primarily as to

the grounds for granting qualified immunity, and deferred to

amicus curiae RESIG all argument with respect to the statu-

tory construction and legislative history of Title IX. Likewise,

the Petition for Writ of Certiorari does not address the statu-

tory issues raised in amicus’ attached brief submitted for this

Court’s consideration. If the arguments presented by amicus

curiae are accepted, those grounds would be dispositive of

this case.

Date: August 19, 1998 Respectfully submitted:

Law OFFICES OF School and College

Scott N. Kiver Legal Services

Sonoma County

Office of Education

Rosert J. Henry

Scott N. Kiver

Attorneys for Amicus Curiae

50 Old Courthouse Square

Attorneys for Amicus Curiae

ritalin raced 5340 Skylane Boulevard

Santa Rosa, CA 95403

707 524-2690 (telephone)

Santa Rosa, CA 95402

707 569-9968 (telephone)

TABLE OF CONTENTS

Page

GURP Ea FREED seek cre reeubiews Cur abebous i

Pe Re eRe 6 hips eRe sh ed BPS BARES ee I

STATUTORY PROVISIONS INVOLVED ............. l

INTRODUCTION AND INTEREST OF AMICUS CUR-

Se es eee Oe ee Ted Cy ee a ad Sea oes l

SRP GIMAESEO RE GIN BURNS MMI ns eS E EN i keg ne hens 5

PEC ME EF ES RARER ERAS 6 EER 8

CONGRESS DID NOT CONTEMPLATE THAT ALL

STUDENT CONDUCT CONSTITUTES A “PRO-

GRAM OR ACTIVITY” UNDER TITLE IX AND

THEREBY EXPOSING GRANT RECIPIENTS TO

DAMAGES LIABILITY FOR ACTIONS OF NON-

FRUETE ePee eee ack Cee E yh WEN ES Us hea ean eeeO g

1. Inclusion of All Student Conduct as a “Program or

Activity” Is Not Supported by the Legislative His-

2. Title IX Liability Based upon Student Conduct Finds

No Support in Title IX’s Post-Enactment History .. 12

3. OCR Misconstrues Title [IX as Encompassing Student

CI ink Ce hee kt Cian She eke aw onee an Cans Barba 15

a. Historically Title IX Regulations Have Been

Adopted for Discrete Programs and Activities 16

b. OCR Has Consistently Acknowledged That No

Policies Have Beem Adopted ...........5....>. 17

SPARED pus 25 RACER dn Sa os RANE UK Maeda vy eae 20

INDEX TO APPENDICES

Page

APPENDIX A 20 U.S.C. §§1681, ef seg........ App. 1

APPENDIX B 34 C.F.R. §§106, ef seg. ........ App. 16

APPENDIX C Civil Rights Restoration Act of

REF c Nae Sas Ene tie a eed App. 44

APPENDIX D_ Senate Report (Labor and Human

Resources Committee) No. 100-64.. App. 54

APPENDIX E Letter from Scolaro, Shulman,

Cohen, Lawler, Burstein & Ferrara,

P.C., dated October 26, 1993 to

Office for Civil Rights.......... App. 119

APPENDIX F Letter from Attorney Advisor, Office

for Civil Rights, undated to Scolaro,

Shulman, Cohen, Lawler, Burstein &

PNG Ris 5 Ss KA hn ead enon App. 121

APPENDIX G OCR Policy Memorandum from A.

Califa, Director of Litigation,

Enforcement and Policy Service, to

Regional Civil Rights Directors

(OR Sag ROUEE 5 dons Umea been App. 123

APPENDIX H_ Dept. of Education, Office of Civil

Rights, Sexual Harassment Guid-

ance: Harassment of Students by

School Employees, Other Students,

or Third Parties, 62 Fed.Reg. 12034,

12039 (1997) (“1997 Policy Guid-

a ER ered iy eo ane ee App. 140

ill

INDEX TO APPENDICES — Continued

Page

APPENDIX I Letter from John E. Palomino, Regional

Civil Rights Director, Dept. of Educa-

tion, to Charles Cadman, Superinten-

dent, Petaluma City School District,

CUE UN is LPO sone cw sc. App. 180

APPENDIX J Dept. of Education Press Release

RNG SUEY, 8 Cea Tris cena pes App. 192

TABLE OF AUTHORITIES

Page

CASES

Cannon v. University of Chicago, 441 U.S. 677 (1979). .passim

Davis v. Monroe County Bd. of Educ., 120 F.3d 1390

(11th Cir. 1997) (en banc) (petition for cert. filed,

ee i

Doe v. Petaluma City Schooi Dist., 830 F.Supp. 1560

SER eR UPI di old 0k'0'sis ah bare an A Nee, Hove Kha e's 17

Doe v. Petaluma City School Dist., 54 F.2d 1447 (9th

RG RUE: abe cheA LAM NS CENTRES A COE ES Cale ate eames 18

Doe v. Univ. of Illinois, 138 F.3d 653 (7th Cir. 1998) ...3, 7

Franklin v. Gwinnett County Pub. Schs., 503 U.S. 60

REPENS 3:9 WR EL CRA al OE WEES OX WKS KORE Oe oe 7, 8, 11

Gebseret Al. v. Lago Vista Independent School Dis-

trict, No. 96-1866 (June 23, 1998), 66 U.S.L.W.

CET ARERKRS Sa TEC hs 68a be oa eke passim

Grove City College v. Bell, 465 U.S. 555 (1984)... passim

North Haven v. Bell, 456 U.S. 512 (1982)......... passim

Pennhurst State School & Hosp. v. Halderman, 451

CPs BEE Sai ce Ce ka Ea er oo 8 13,29

Rowinsky v. Bryan Indep. School Dist., 80 F.3d 1006 (Sth

Cir. 1996), cert. denied, 117 S.Ct. 165 (1996) ....... passim

Tinker v. Des Moines Independent Com. Sch. Dist.,

TOD We. De a RELA A SER a ei oes 1S

Wood v. Strickland, 420 U.S. 308 (1975) .............. 19

STATUTES AND RULES

Be Ss SD CAEN bask 62 8c RR eae we ae 13

BO Ge es RE es POON N eR wha vb eebaeereece 16

TABLE OF AUTHORITIES —- Continued

Page

i Ses ee hg ESO ca hk eed 6d hades ve ea o> passim

gp Bice | 8 RT Sy aR ps ae Ree eres eet Se para 3

Civil Rights Restoration Act of 1987................4.. 4

i ee ee eet Cee awe ak wea g waeeie'k' ma 5

Pub.L No. 93-380 § 844, 88 Stat. 612 (1974).......... 16

Rehabilitation Act Amendments of 1986, 100 Stat.

A BS Oe oe a fg bene naar ee 13

Supreme Court Rule 37 2.0.2. ccc tccsvessecenensccce: 2

Title IX of the Education Amendments of 1972 (20

ee SNe Ee OD we cess ehvunsekieues . passim

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

NN, ok sees neh beat baw sh eee aisieeebe) 6, 11

CONSTITUTIONAL PROVISIONS

First Amendment to the U.S. Constitution ............. 19

I a a ad ala elas bk bere a aaeb do's 6

Eleventh Amendment to the U.S. Constitution........ ay

Equal Protection Clause of the Fourteenth Amend-

beret Ge TS US: SOMSEIIUNIOR, oid ec cc e eh e crc eaoes 5

OTHER

118 Cong.Rec. at 5803 (1972)....... cee ee eeveees Laorke

aaa

BRIEF OF AMICUS CURIAE

-REDWOOD EMPIRE SCHOOLS INSURANCE GROUP

OPINIONS BELOW

The opinion of the United States Court of Appeals for the

Ninth Circuit in Oona R.-S. v. McCaffrey, is reported at 143

F.3d 473 (9th Cir.1998). The opinion of the District Court in

Oona R.-S. v. Santa Rosa City Schools is reported at 890

F.Supp. 1452 (N.D. Cal. 1995).

STATUTORY PROVISIONS INVOLVED

Title IX of the Education Amendments of 1972 (20

U.S.C. §§1681, et seq.) (hereinafter “Title IX”) provides, in

relevant part, “No person in the United States shall, on the

basis of sex, be excluded from participation in, be denied the

benefits of, or be subjected to discrimination under any edu-

cation program or activity receiving Federal financial assis-

tance... . ” 20 U.S.C. §1681(a). App. 1.

INTRODUCTION AND INTEREST

OF AMICUS CURIAE

Amicus Curiae Redwood Empire Schools Insurance

Group submits this brief in support of Patricia McCaffrey,

Gerald Hill and Ronald Lundy’s Petition for Writ of Certiorari

to the United States Court of Appeals for the Ninth Circuit.

Amicus submits this brief for two purposes: First, in support

of granting the Petition; and second, to suggest an analytical

framework for this Court’s consideration of the merits. As

explained below, this Petition is pivotal in that unlike other

Title [IX appellate decisions, a question is presented of quali-

fied immunity for individual defendants. Ultimately, this

Court must define the precise contours of Title [IX for which

no discernable landmarks regarding student conduct currently

exist. The posture of this case is ripe for this Court to fashion

the proper scope of inquiry with respect to qualified immunity

under Title IX. Consistent with Sup. Ct. Rule 37,' the issues

briefed by Amicus have not been addressed in the Petition for

Writ of Certiorari.

All can agree that sexual harassment is a vexing societal

problem. Yet the exigencies of a societal issue should not

inexorably compel new legal rights and obligations inimical

to the practical and fiscal parameters of public education. In

Amicus’ view, Title [IX has been administratively and judi-

cially interpreted in directions not contemplated by Congress

to such an extent that the term “program or activity” has been

rendered meaningless. As Chief Judge Posner of the Seventh

Circuit opined in his dissent from denial of rehearing en banc

in a recently decided student peer sexual harassment case, the

question presented is ripe for resolution:

The issue of a school’s liability under 20

U.S.C. §1681(a) (which forbids sex discrimination

by schools that receive federal financial aid) for the

sexual harassment of one student by another is well

worth the attention of the full court, quite apart

from the issue of intercircuit conflict. The potential

liabilities of the nation’s schools, already finan-

cially hard-pressed, are staggering, since insults,

teasing, petty persecutions, grabbing, poking, sex-

ual experimentation, and other forms of what might

actually or arguably constitute sexual harassment

are an omnipresent feature of school life. Liability

for failing to prevent or rectify sexual harassment

of one student by another places a school on a

razor’s edge, since the remedial measures that it

takes against the alleged harasser are as likely to

expose the school to a suit by him as a failure to

take those measure [sic] would be to expose the

school to a suit by the victim of the alleged harass-

ment.

! Pursuant to Rule 37.6, this brief was written solely by counsels of

record Kivel and Henry on behalf of and funded by Amicus.

wore

ote.

Doe v. Univ. of Illinois, 138 F.3d 653, 679 (7th Cir.

1998).

Amicus has significant interest in the case at bar. If the

opinion below is allowed to stand, the filing of sexual harass-

ment lawsuits by students against public school officials will

undoubtedly increase, with profound financial and public pol-

icy ramifications for public schools. Of equal concern to

Amicus is threatened litigation, based upon a claimant’s hope

to obtain an expedited “settlement” against Amicus’ member

school districts which may wish to avoid significant defense

litigation costs. In addition, Amicus is concerned about the

chilling effect that Title IX sexual harassment cases have on

individual administrators, teachers and counselors, if actions

are allowed to proceed on a 42 U.S.C. §1983 basis against

public educators in their individual capacities.* These actions

(1) undermine the fiscal integrity of public schooling by

diverting financial resources from educational needs to litiga-

tion; (2) cause individual educators to fear that their every

word, action, inaction or physical contact may be the future

basis for a lawsuit; (3) hold school officials accountable on a

bright line distinction between “harassment” and First

Amendment protected speech amongst students where courts

have been unable to define the precise contours of such

discourse; and (4) subvert the personal interactions between

2 In light of the development of judicial decisions interpreting Title

IX and this Court’s recent Title [IX decision in Gebseret Al. v. Lago Vista

Independent School District, No. 96-1866 (June 23, 1998), 66 U.S.L.W.

4501, Amicus further suggests that although the time may be ripe for this

Court to reconsider its Cannon holding that a private right of action is

implied under Title IX it may be unnecessary: “The Court held in Cannon

v. University of Chicago, 441 U.S. 677 (1979), that Title IX is also

enforceable through an implied private right of action, a conclusion we do

not revisit here.” 66 U.S.L.W. at 4503. Amicus suggests that judicial

inferences have taken Title [X too far astray from its legislative intent — an

inferred private right of action has led to inferred compensatory damages as

a remedy and now to an inferred claim grounded in student conduct. The

“program or activity” analysis set forth in this brief offers an alternative

method of defining the contours of the implied private right of action.

school officials and students by attempting to define precisely

the lawful parameters of how educators must respond to the

myriad of interpersonal conflicts which arise on a daily basis

within a school environment.’

The fundamental question is what constitutes a “program

or activity.” It is indisputable that both the legislative history

of the Civil Rights Restoration Act of 1987 (App. 54) and

federal reguiations apply Title [X’s proscription on sex dis-

crimination to all of an institution’s discrete programs and

activities. However, Title IX and its regulations do not com-

pel the conclusion that a school district operates a program or

activity when students are walking on school grounds, eating

lunch, and interacting in a myriad of other non-curricular

activities.

Amicus’ asserted position that student conduct is not a

“program or activity” is consistent with the views expressed

by Congress in enacting the Restoration Act where it cited

examples of alleged sex discrimination in athletics, employ-

ment, harassment by teachers and unequal educational oppor-

tunities. App. 74-81.4 It is also consistent with 20 U.S.C.

§1687 (App. 11) interpreting “program or activity”; and with

the language of 34 C.F.R. §§106.31, et seg. which enumerates

regulations governing discrete programs and activities, for

example, admissions and athletics. App. 21-43. Moreover, a

3 The dissent in Lago Vista opined that holding a school district liable

in damages is a risk against which the district, but not the student, can

insure. /d., at 66 U.S.L.W. 4510. An insurer is responsible for analyzing

potential risk liability inherent in official school programs and activities,

such as classroom lectures, athletic events, school dances, and similar

discrete activities. However, if “program or activity” under Title IX is

deemed to include all student conduct, thus imposing liability for the acts

of those who are not in an agency relationship, insurance requirements will

become financially prohibitive.

+ Amicus’ brief addresses solely the allegations involving student-to-

student interaction. Ibach, a student teacher, is the only individual

defendant other than Petitioners. For purposes of this brief, Amicus simply

notes that employment has been held by this Court to constitute a program

or activity under Title IX.

study of Title IX judicial decisions convinces Amicus that

they do not support the construction urged by the Court of

Appeals below.

STATEMENT OF THE CASE

This case arises out of an action filed in 1994 by Respon-

dent Oona R.-S. against Santa Rosa City Schools and three of

its employees who remain as individual defendants after dis-

missal of other school officials: Patricia McCaffrey, Respon-

dent’s sixth grade teacher; Gerald Hill, school principal; and

Ron Lundy, Director of Elementary Education for the school

district. Two general allegations were raised in Respondent’s

Complaint for violations of Title IX and the Equal Protection

Clause of the Fourteenth Amendment: That Petitioners and

their employer (1) failed to adequately address the purported

hostile sexual environment created by male students in

Respondent’s public elementary school class; and (2) failed to

remedy allegedly inappropriate conduct by a student teacher.

The individual defendants’ Fed.R.Civ.P. 12(b)(6) motion

to dismiss based on qualified immunity was denied by the

district court and unanimously affirmed in an amended opin-

ion dated August 25, 1997. A Petition for Rehearing with a

suggestion for rehearing en banc was timely filed, relying

upon the subsequently issued Eleventh Circuit’s en banc deci-

sion that a school district is not liable under Title IX for

failure to prevent student-to-student hostile environment sex-

ual harassment. Davis v. Monroe County Bd. of Educ., 120

F.3d 1390 (11th Cir. 1997) (en banc) (petition for cert. filed,

November 19, 1997). The Davis decision squared with the

Fifth Circuit’s holding in Rowinsky v. Bryan Indep. School

Dist., 80 F.3d 1006, 1016 (Sth Cir. 1996), cert. denied, 117

S.Ct. 165 (1996). The Court of Appeals below denied the

Petition for Rehearing but withdrew its August 1997 opinion

and filed a divided opinion, amended May 5, 1998. Hall, J.,

dissenting. However, the premise upon which the result

reached by the Court of Appeals was predicated relied on the

proposition that all student conduct implicates Title IX is

untenable.

Witenes sss Rene isineri RL BE Sree ok 7S

The Ninth Circuit’s opinion stands in stark contrast to

opinions issued by the Fifth and Eleventh Circuits and does

not comport with this Court’s recent pronouncements as to

Title IX standards.> In a Title IX action alleging that a school

district and its officials condoned and caused hostile environ-

ment sexual harassment by student peers both at school and

on the school bus, the Fifth Circuit in Rowinsky concluded

that a school district is not liable for failing to remediate peer

harassment absent a showing that its response treats male and

female victims differently (holding that no cause of action

exists where a school district merely knew or should have

known of peer sexual harassment and failed to act). /d. at

1016.

The Eleventh Circuit reached the same result.© The

divided court concluded that the school district lacked the

requisite notice under Spending Clause legislation’ that as a

grant recipient it might incur liability for student conduct. /d.,

at 1401.8

.. . nothing in the language or history of Title

IX suggests that Title [IX imposes liability for stu-

dent-student sexual harassment. [footnote omitted. ]

Second, the imposition of this form of liability

5 This Court’s Lago Vista decision appears to dispose of Title VII of

the Civil Rights Act of 1964, 42 U.S.C. §§2000e, et seq., as the appropriate

statutory analogue. /d., 66 U.S.L.W. at 4504-4505.

claim as to the individual defendants. Davis, supra, at 1392, n.3. Therefore,

as in Rowinsky, only the status of the entity defendant was on appeal. /d., at

1010, n.6.

7 In Lago Vista this Court concluded that Title IX was enacted

pursuant to the Spending Clause, U.S. Const., Art. I, §8, cl.1 id, 66

U.S.L.W. at 4505. By such action Congress attaches conditions to federal

funding under Title [IX and thus it is critical to examine the principle of

adequate notice prior to holding a recipient liable in monetary damages for

noncompliance with a congressional condition.

8 The Davis court also opined that agency principles are irrelevant in

discussing liability for student-to-student harassment given that students

are not agents of a school district. /d., at 1399-1400, n.13.

Rn Tr odin 9 Rnb rat Tam *

would so materially affect schools’ decisions

whether to accept Title IX funding that it would

require an express, unequivocal disclosure by Con-

gress. Id. at 1401 & n.15.

Reaching a different result to Rowinsky and Davis, the

Seventh Circuit in Univ. of Illinois, supra, held that school

officials are not immune for their “failure to take prompt,

appropriate action in response to student-to-student sexual

harassment .. . ” where school officials have actual knowl-

edge of the impermissible conduct. /d., at 667-668. Contrary

to Lago Vista, that court relied upon a Title VII analogy and

adopted, for actions based upon direct liability, the “knew or

should have known” standard. /d., at 665-667.

In the first instance the Court of Appeals below framed

the sole issue before it as whether the district court correctly

denied qualified immunity for the individual defendants

because in 1992-1993 reasonable school officials would have

known that the alleged conduct would violate Respondent's

federal rights. Oona, supra, at 475. The Ninth Circuit

acknowledged that its statutory interpretation was contrary to

the Eleventh Circuit in Davis and the Fifth Circuit in Row-

insky.

We have difficulty squaring the reasoning of

those cases with the Supreme Court’s in Franklin [v.

Gwinnett County Pub. Schs., 503 U.S. 60 (1992)]

and our own in Petaluma. Rowinsky and Davis

imply that school officials differ from employers,

and should not be vicariously liable for the actions

of peers under agency principles. But neither the

employers under Title VII are vicariously liable for

the actions of others. Rather, they are liable for

their own discriminatory actions in failing to rem-

edy a known hostile environment.

Oona, supra, at 477.

However, the majority opinion relied on an interpretation

of Franklin which sweeps too broadly.? Justice Hall, in

dissent, challenged the majority’s conclusion that students

have a right under Title IX to be free from peer sexual

harassment. /d., at 479. Therefore, it is imperative that this

Court provide direction to lower courts to refrain from con-

struing Title [X in such a way so that the phrase “program or

activity,” a necessarily limiting phrase, is rendered meaning-

less. In Amicus’ view, if that phrase is deemed applicable to

peer harassment then there is no conduct or omission between

students which would not be covered by Title IX.

ARGUMENT

CONGRESS DID NOT CONTEMPLATE THAT ALL

STUDENT CONDUCT CONSTITUTES A “PROGRAM

OR ACTIVITY” UNDER TITLE IX AND THEREBY

EXPOSING GRANT RECIPIENTS TO DAMAGES LIA-

BILITY FOR ACTIONS OF NON-AGENTS.

There have been five decisions by this Court addressing

Title IX since its enactment. In 1979, this Court held that

Title [IX was enforceable by an individual through an implied

private right of action. Cannon, supra (prospective female

medical student claimed sex discrimination in admission pol-

icy). This Court reviewed the statute’s legislative history:

Title IX, like its model Title VI, sought to

accomplish two related, but nevertheless somewhat

different, objectives. First, Congress wanted to

avoid the use of federal resources to support dis-

criminatory practices; second, it wanted to provide

individual citizens effective protection against

® Misreading this Court’s Franklin opinion by imbuing it with a

broader reach than this Court had intended, the Ninth Circuit adopted a

Title VII analogy for Title IX cases. Oona, supra, at 477 (“The holding

adumbrated by the majority in Franklin is required today: Title VII

standards apply to hostile environment claims under Title [X.”) The

conclusion of the court below was rejected by this Court’s recent Lago

Vista decision.

those practices. Both of these purposes were repeat-

edly identified in the debates on the two statutes.”

Id., at 704. [Emphasis added; footnote omitted.]

The initial purpose was addressed through statutory pro-

cedures for the termination of federal financial support

engaged in discriminatory practices. /bid. In support of its

conclusion that a private right of action existed, this Court

opined that in an isolated violation neither the administrative

agency or a private litigant should bear “the burden of demon-

strating that an institution's practices are so pervasively dis-

criminatory that a complete cutoff of federal funding is

appropriate.” /d., at 705 [emphasis added.] And, with respect

to anticipated future conflicts, as here, regarding the reach of

this judicially implied private right of action, the concurrence

suggested a cautionary approach:

Not only is it “far better” for Congress to so

specify when it intends private litigants to have a

cause of action, but for this very reason this Court

in the future should be extremely reluctant to imply

a cause of action absent such specificity on the part

of the Legislative Branch.

Id., at 718. J. REHNQUIST, concurring.

In this Court’s second Title IX opinion, North Haven ve

Bell, 456 U.S. 512 (1982), employment discrimination was

held to be violative of Title IX. This Court noted that Title IX

contains two “core provisions,” the first of which is a pro-

gram-specific prohibition of gender discrimination. Id., at

$14.10 The North Haven Court thoroughly analyzed the

10 In the Lago Vista oral argument, this Court questioned whether

Title IX did not require institutional policy to implicate Title IX. See Tr. of

Oral Arg. at 21-22:

QUESTION: Why shouldn’t we require that the district,

in order to be liable, have a policy that permits discrimination,

that affirmatively permits it?

The way the statute reads, it says no one shall be excluded

from participation and be denied the benefits of or be subject to

legislative history!! of Title [X, a statute introduced by Sena-

tor Bayh which was designed to prohibit gender discrimina-

tion in federally funded education programs and to close

loopholes in existing legislation relating to

general education programs and employment result-

ing from those programs. . . . The amendment

would cover such crucial aspects as admissions pro-

cedures, scholarships, and faculty employment... .

Id., at 524.

1. Inclusion of All Student Conduct as a “Program or

Activity” Is Not Supported by the Legislative History.

Consistent with its text, Title IX’s legislative history

contains no indication at all that student-to-student sexual

harassment constitutes gender discrimination in a grant recip-

ient’s “program or activity.” The express statutory means of

Title IX’s enforcement are administrative. Federal agencies

are directed to predicate education funding upon compliance

with nondiscrimination requirements. Enforcement is through

“any .. . means authorized by law,” including ultimately

cermination of federal funding. 20 U.S.C. §1682. App. 9. By

implying a legislative history that does not exist, the Court of

Appeals below broadens the scope of Title IX’s coverage

discrimination under any educational program or activity, not

in connection with it, under, and I thought it was mainly

directed at educational programs that allow sports for boys, no

sports for girls, things of that sort. That is discrimination under

the program.” .. .

11 Amicus acknowledges that the Restoration Act legislatively

revised the analysis of “program or activity” as held in North Haven, supra,

and Grove City College v. Bell, 465 U.S. 555 (1984). Therefore, Amicus

cites North Haven not for its precise holding, but rather for its analytical

framework regarding “program or activity” and for its analysis of Title IX’s

legislative intent.

beyond congressional intent; therefore it is proper for this

Court to define the contours of that liability.'?

Title IX was offered as a floor amendment. Therefore,

administrative agency and judicial interpretations of congres-

sional intent regarding the reach of Title IX cannot rely on the

most dependable sources of legislative intent, generally

reflected by the reports of the responsible House and Senate

committees. This sparse legislative history argues in favor of

not reading into the statute damages liability of a grant

recipient for conduct of students. As noted by the Rowinsky

court, the legislative history demonstrates that both suppor-

ters and opponents of Title IX focused exclusively on acts by

grant recipients, noting that Senator Bayh introduced the

amendment while enumerating the forms of discrimination,

all by grant recipients, which fostered the legislation. 118

Cong.Rec. at 5803 (1972). (“It is clear to me that sex discrim-

ination reaches into all facets of education — admissions,

scholarship programs, faculty hiring and promotion, profes-

sional staffing, and pay scales.”) Rowinsky, at 1014. While

recognizing that the statements of one legislator made during

a debate may not be controlling, the Rowinsky court opined

that “Senator Bayh’s remarks, coming from the sponsor of the

language ultimately enacted, have been treated as authorita-

tive to the statute’s construction.” /d., at 1014, citing North

Haven, supra, 456 U.S. at 526-527. Further, the Rowinsky

court cited to the original amendment’s mandated study of sex

12 As this Court noted, “{u]nlike Title IX, Title VII contains an

express cause of action, Sec. 2000e-(f), and specifically provides for relief

in the form of monetary damages, Sec. 1981a. Congress therefore has

directly addressed the subject of damages relief under Title VII and has set

out the particular situations in which damages are available as well as the

maximum amounts recoverable. Sec. 1981a(b).” Lago Vista, supra, 66

U.S.L.W. at 4504. Amicus recognizes that Title IX’s legislative history also

lacks any reference to teacher-student harassment. However, as

demonstrated by this Court’s Franklin and Lago Vista decisions, agency

principles may impute liability to a grant recipient for conduct by an

employee.

—

discrimination which purpose was to suggest further legisla-

tive remedial action. /bid.

The Eleventh Circuit also reviewed Title [X’s legislative

history and the same result obtained. Davis, supra, at

1395-1397. That court noted that peer harassment was never a

subject of discussion in (1) congressional testimony during

hearings in 1970 on gender discrimination in federally funded

educational programs; (2) in a 1971 House report and related

testimony; or (3) when both House and Senate bills on gender

discrimination were introduced and debated. /d., at

1396-1397. “[T]hroughout this long legislative history, the

drafters of Title IX never discussed student-student sexual

harassment or the related issue of school discipline. /d., at

1397.'3 In the case at bar, the Court of Appeals below

affirmed without commenting on Title IX’s legislative history.

2. Title IX Liability Based upon Student Conduct Finds

No Support in Title IX’s Post-Enactment History.

As the Cannon Court concluded, although post-enact-

ment legislative developments cannot be accorded “the

weight of contemporary legislative history, we would be

remiss if we ignored these authoritative expressions concern-

ing the scope and purpose of Title IX... . ” /d., at 687 n.7.

However, there is no support in Title I[X’s post-enactment

history that liability may be predicated upon student conduct.

Congress has revised Title IX during its 26-year history

generally to broaden its protective umbrella or arguably to

retain the statute’s intended status quo. In Grove City, this

Court held, inter alia, that the receipt of federal grants by

some of a college’s students placed only the financial aid

program, rather than the entire college, under Title IX’s

requirements prohibiting sex discrimination. That decision

was subsequently legislatively overturned by Congress when

‘3 With respect to inclusion of student conduct, Amicus has been

unable to identify any legislative reference to a non-agent’s acts or

omissions as a contemplated basis for either enacting Title IX or for

imposing liability.

it restored the jurisdictional coverage to any program or

activity within an educational institution when any part of the

institution receives federal funding. 20 U.S.C. §1687 (1994).

The Restoration Act amended Title IX by adding a

broader definition of the term “program and activity.” Yet, the

Restoration Act and its legislative history are silent as to

imposition of liability on an educational institution for purely

private conduct between students.'4 App. 44-54. Indeed, as

amended by the Restoration Act, Title [X’s statutory language

expresses Congress’ intent insofar as to the extent of the

proscribed discrimination. 20 U.S.C. §1687 provides that the

terms “program or activity” and “program” mean all of the

operations of

(2)(B) a local educational agency (as

defined in section 8801 of this Title), system of

vocational education, or other school system; ... .

(Emphasis added) App. 11, 45.

At that point in time, some fifteen years after adoption of

Title IX, Congress could have addressed the subject of

whether student conduct violates Title IX. Yet Congress to

date has never even debated this issue. Congress knows how

to speak to an issue:

Indeed, in those instances where Congress has

intended the states to fund certain entitlements as a

condition of receiving federal funds, it has proved

capable of saying so explicitly.

Pennhurst State School & Hosp. v. Halderman, 451

U.S. 1, 17-18 (1981).

See also Rehabilitation Act Amendments of 1986, 100

Stat. 1845, 42 U.S.C. 2000d-7(a)(1) (abrogating the States’

Eleventh Amendment immunity and again silent on student

conduct under Title IX).

14 There have been other statutory revisions which similarly reflect

an absence of Congress’ contemplation of student conduct as a basis for

Title [X liability, such as protection for longstanding same-sex activities as

the Boy Scouts of America, or father-daughter dances. 20 U.S.C.

§1601(a)(6)-(9) (1994). App. 2-4.

In 1992, this Court held that private plaintiffs could seek

monetary damages against a school based upon Title IX for

intentional discrimination against a student by a teacher.

Franklin, supra. In the fifth and most recent pronouncement

as to the scope of Title IX, this Court held in Lago Vista that

damages are unavailable for teacher-student sexual harass-

ment absent actual notice to a school district official with

authority to implement corrective measures, and whose con-

duct demonstrates deliberate indifference to the teacher's

misconduct. /d., 66 U.S.L.W. at 4506.'5 However, to allow

student conduct to form a basis for Title IX liability,'® Amicus

suggests, would be inconsistent with this Court’s conclusion

15 Amicus anticipates the construct of a counter-argument: That an

institution is responsible for its own conduct in knowingly allowing an

allegedly hostile and discriminatory environment to continue once it is on

notice that peer harassment is occurring. In other words, that a failure to

stop or prevent student-to-student sexual harassment by a grant recipient's

official with (1) actual knowledge and (2) authority to take corrective

action (which could include all adults in a school environment, from yard

and cafeteria supervisors to classroom teachers and administrators)

constitutes a “program or activity.” This argument is based on the

proposition that a school district should be liable in damages under Title IX

where a school official “ ‘aided in carrying out the sexual harassment of

students by his or her position of authority with the institution. ...’ ” Dept.

of Education, Office of Civil Rights, (“OCR”) Sexual Harassment

Guidance: Harassment of Students by School Employees, Other Students,

or Third Parties, 62 Fed.Reg. 12034, 12039 (1997) (hereinafter “1997

Policy Guidance”) App. 140, 173, 176-178.

Subsequent to this Court’s Lago Vista decision, the United States

Department of Education continues to maintain that student-to-student

sexual harassment violates Title IX. App. 192. However, OCR’s view

rendvrs the phrase “program or activity” meaningless.

16 Amicus notes that this “Policy Guidance” is not a set of rules and

regulations adopted through a notice and comment procedure, and

therefore again fails to provide adequate notice to grant recipients or to

constitute a “laying before” Congress as to OCR’s interpretation of Title IX

as embracing student conduct. OCR, on the other hand, asserts that these

guidelines are “standards” due appropriate deference by the courts. App.

151-153.

in Lago Vista that Title IX was enacted under the Spending

Clause and would be contrary to this Court’s caution to ~

Congress:

By insisting that Congress speak with a clear

voice [as to the conditions grant recipients are

assuming upon acceptance of federal funding], we

enable the States to exercise their choice know-

ingly, cognizant of the consequences of their partic-

ipation [in federal programs]. Pennhurst, supra, at

17.

OCR Misconstrues Title IX as Encompassing Student

Conduct.

The Grove City Court opined that:

[plersuasive evidence of Congress’ intent con-

cerning student financial aid may also be gleaned

from its subsequent treatment of Title IX. We have

twice recognized the probative value of Title IX’s

unique postenactment history, North Haven Board

of Education v. Bell, supra, at 535[.. J; Cannon v._

University of Chicago, supra, at 687, n.7, 702-703

[ ...], and we do so once again. The Department’s

sex discrimination regulations made clear that

“fs]cholarships, loans, [and] grants . . . extended

directly to . . . students for payment to” an institu-

tion constitute federal financial assistance to that

entity. 40 Fed.Reg. 24137 (1975); see n.6, supra.

Under the statutory “laying before” procedure of

the General Education Provisions Act, Pub.L.

93-380, 88 Stat. 567, as amended, 20 U.S.C. Sec.

1232/4)(1) (1982 ed.}, Congress was afforded an

opportunity to invalidate aspects of the regulations

it deemed inconsistent with Title IX.

Grove City, supra, at 567-568 {Emphasis added. ]

The OCR is the entity charged with enforcing and effec-

tuating Title IX. The primary interpretation of Title IX is

found in its implementing regulations. 34 C.F.R. 106.31 sin-

gularly addresses acts by the grant recipient.

fi sees

Specific prohibitions: Except as provided in

this subpart, in providing any aid, benefit, or ser-

vice to a student, a recipient shall not, on the basis

of sex: . . . (7) otherwise limit any person in the

enjoyment of any right, privilege, advantage, or

opportunity.

Congress has proceeded to amend Title IX when it has

disagreed with the agency’s interpretation. North Haven,

supra, at 534, n.25. Here Congress has been denied the

opportunity to speak on OCR’s interpretation, despite the

significant public policy and fiscal ramifications of its actions

in finding grant recipients in noncompliance based upon fail-

ure to stop or prevent peer harassment by students.!7

a. Historically Title IX Regulations Have Been

Adopted for Discrete Programs and Activities.

Student verbal interactions cannot be deemed an “opera-

tion” of a school system for which federal monies are

received. Title IX is tied to the funding of programs and

activities, such as athletics, bilingual education, counseling,

and other indicia of institutional structure.

Initially the Department of Health, Education and Wel-

fare was delegated the task of developing Title IX standards

for athletic programs. Pub.L. No. 93-380 §844, 88 Stat. 612

(1974). Administrative regulations, regarding such programs

or activities such as admissions, textbooks, and athletics,

initially appeared at 34 C.F.R. pt. 86 (1972) and were

recodified in connection with the establishment of the Depart-

ment of Education and the transfer of Title IX functions to

that agency. North Haven, supra, at 515-516 & n.4-5. Pro-

posed Title IX regulations were also published to bring

'7 “Program or activity” has as a qualifier “no person.” If Congress

had intended Title IX to include student-to-student sexual harassment

interaction as a basis for noncompliance, it needed to have included

language other than “no person.” Instead, Congress should have included a

definition which would satisfy Spending Clause notice requirements.

employment discrimination within Title IX’s parameters. A

final rule was submitted to Congress for review and this Court

later upheld Title IX’s reach to include employment discrimi-

nation. /d., 456 U.S. at 514. Yet no regulations have been

promulgated regarding student conduct. Absent an agency's

statutory construction having been “fully brought to the atten-

tion of the public and the Congress,” with an opportunity for

Congress to alter that interpretation, accurate legislative

intent cannot be presumed. North Haven, supra, at 535 (cita-

tion omitted). !8

b. OCR Has Consistently Acknowledged That No

Policies Have Been Adopted.

Under the state of current law, as interpreted by OCR and

the Court of Appeals below, a school district is forced to

comply with an interpretation of Title IX embracing student

conduct which places federal financial assistance at risk. See

App. 180 for an OCR “Letter of Finding” regarding student-

to-student sexual harassment. Letters of findings are written

by regional OCR staff members in response to specific inves-

tigations triggered by an administrative complaint. See Row-

insky, supra, at 1015 [Citation omitted.] Their purpose is to

compel voluntary compliance by the recipient institution.

Ibid. Ard see Doe v. Petaluma City Sch. Dist. 830 F.Supp.

1560, 1573 (N.D.Cal. 1993) (OCR letter of findings did not

address what judicial remedies are available in Title IX

action). The Ninth Circuit in Petaluma correctly rejected the

proposition that an OCR “letter of finding” could create a

Title IX right:

18 This “laying before” provision was designed to afford

Congress an opportunity to examine a regulation and, if it

found the regulation “inconsistent with the Act from which it

derives its authority . . . ,” to disapprove it in a concurrent

resolution. If no such disapproval resolution was adopted

within 45 days, the regulation would become effective. North

Haven, supra, at 531- 532.

The OCR letter in this case neither creates the

source of the right sued upon by Doe, nor is it a

relevant “precedent” which can clearly establish an

official’s duty to act... .

Doe v. Petaluma City School Dist., 54 F.3d 1447,

1452 (9th Cir. 1995).

Further, OCR has consistently acknowledged that no pol-

icies on student peer have been adopted. App. 119-123. The

OCR policy statement relied upon by OCR focuses not on

student conduct, but rather on conduct by employees or

agents of the recipient.

Sexual harassment consists of verbal or physi-

cal conduct of a sexual nature, imposed on the basis

of sex, by an employee or agent of the recipient,

that denies, limits, provides different, or conditions

the provision of aid, benefits, services, or treatment

protected under Title IX. See OCR Policy Mem-

orandum from A. Califa, Director of Litigation,

Enforcement and Policy Service, to Regional Civil

Rights Directors (Aug. 31, 1981). [Emphasis

added.] App. 123, 125.

Significantly, OCR acknowledged that it was undeter-

mined whether student conduct could trigger a violation:

The other unresolved issue relates to a recip-

ient’s responsibility for the sexual harassment acts

of students against fellow students in the context of

the situation in which neither student is in a posi-

tion of authority, derived from the institution, over

the other students.

App. 137.!9

19 Amicus asserts that sexual harassment by third parties, absent a

showing that the conduct implicates a grant recipient’s power, reaches

beyond the OCR’s jurisdiction. See 34 C.F.R. §106.31(b), which provides

OCR its jurisdiction over sexual harassment. App. 21-22.

itis dled

OCR asserts that “ . . . OCR’s longstanding construction

of Title IX ...” is that peer harassment violates Title IX.

App. 176, n.27. However, with respect to administrative let-

ters of finding regarding student peer harassment, their

weight, if any, falls short of both implementing regulations

and the 1981 Policy Memorandum, which represents a delib-

erate policy statement, which, according to its own words,

reflects consistency with prior agency interpretation. Where

an agency's position has not been shown to be consistent over

a period of time, or is unclear, then the interpretation is not

deserving of deference. North Haven, supra, at 522 n.12 &

538 n.29.20

20 Amicus recognizes the profound First Amendment constitutional

implications within an academic environment of defining actionable

“sexual harassment.” See, e.g., Tinker v. Des Moines Independent Com.

Sch. Dist., 393 U.S. 503 (1969). Amicus is not seeking an avenue to avoid

or ignore the conduct proscribed by Title IX, nor is Amicus insensitive to

the very real damage faced by some targets of harassment. Rather, Amicus

seeks this Court’s guidance in providing a workable framework for the

judiciary which recognizes that public educators should be allowed to use

the educational process, including discipline, to respond to harassment

consistent with their professional obligation. Historically this Court has

recognized that the federal judiciary should afford latitude to education

professionals. See e.g., Wood v. Strickland, 420 U.S. 308, 325 (1975). The

dilemma faced by educators is demonstrated by the 1997 Policy Guidance,

where OCR could offer no meaningful guidance as to the F'rst

Amendment. App. 149.

CONCLUSION

Upon these grounds, Amicus Curiae Redwood Empire

Schools Insurance Group respectfully requests that this Court

grant the Petition.

Date: August 19, 1998

Respectfully submitted,

Law OFFICES OF SCHOOL AND COLLEGE LEGAL

Scotr N. Kiver Services, SONOMA COUNTY

OrFFIcE OF EDUCATION

Scotr N. Krver

Attorneys for Amicus Curiae Rosert J. Henry

50 Old Courthouse Square Attorneys for Amicus Curiae

P. O. Box 3397 5340 Skylane Boulevard

Santa Rosa, CA 95402 Santa Rosa, CA 95403

707 569-9968 (telephone) 707 524-2690 (telephone)

7 . —

en 6 Sih ae gE Oe aes

pi Sele aie Ment Wg eRe MOOR! ONE Ma ele

PO a See ei

Disc. ath iia igh Ss RNA ew ice BUI. A tT LRTI IGE. BE RE SEM aH

App. 1

APPENDIX

20 U.S.C.A. § 1681. Sex

(a) Prohibition against discrimination; exceptions

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:

(1) Classes of educational institutions subject to

prohibition

in regard to admissions to educational institu-

tions, this section shall apply only to institutions of

vocational education, professional education, and

graduate higher education, and to public institutions

of undergraduate higher education;

(2) Educational institutions commencing planned

change in admissions

in regard to admissions to educational institu-

tions, this section shall not apply (A) for one year

from June 23, 1972, nor for six years after June 23,

1972, in the case of an educational institution which

has begun the process of changing from being an

institution which admits only students of one sex to

being an institution which admits students of both

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

change which is approved by the Secretary of Educa-

tion or (B) for seven years from the date an educa-

tional institution begins the process of changing

from being an institution which admits only students

of only one sex to being an institution which admits

students of both sexes, but only if it is carrying out a

plan for such a change which is approved by the

Secretary of Education, whichever is the later;

App. 2

(3) Educational institutions of religious organiza-

tions with contrary religious tenets

this section shall not apply to an educational

institution which is controlled by a religious organi-

zation if the application of this subsection would not

be consistent with the religious tenets of such organi-

zation;

(4) Educational institutions training individuals

for military services or merchant marine

this section shall not apply to an educational

institution whose primary purpose is the training of

individuals for the military services of the United

States, or the merchant marine;

(5) Public educational institutions with tradi-

tional and continuing admissions policy

in regard to admissions this section shall not

apply to any public institution that traditionally and

continually from its establishment has had a policy

of admitting only students of one sex;

(6) Social fraternities or sororities; voluntary

youth service organizations

this section shall not apply to membership prac-

tices —

(A) of a 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

i cil

App. 3

organizations which are so exempt, the

membership of which has traditionally been

limited to persons of one sex and princi-

pally to persons of less than nineteen years

of age;

(7) Boy or Girl conferences

this section shall not apply to -

(A) any program or activity of the

American Legion undertaken in connection

with the organization or operation of any

Boys State conference, Boys Nation confer-

ence, Girls State conference, or Girls Nation

conference; or

(B) any program or activity of any

secondary school or educational institution

specifically for -

(i) The promotion of any Boys

State conference, Boys Nation confer-

ence, Girls State conference, or Girls

Nation conference; or

(ii) the selection of students to

attend any such conference;

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

educational institutions

this section shall not preclude father-son or

mother-daughter activities at an educational institu-

tion, but if such activities are provided for students ~

of one sex, opportunities for reasonably comparable

activities shall be provided for students of the other

sex; and

App. 4

(9) Institution of higher education scholarship

awards in “beauty” pageants

this section shall not apply with respect to any

scholarship or other financial assistance awarded by

an institution of higher education to any individual

because such individual has received such award in

any pageant in which the attainment of such award

is based upon a combination of factors related to the

personal appearance, poise, and talent of such indi-

vidual and in which participation is limited to indi-

viduals of one sex only, so long as such pageant is in

compliance with other nondiscrimination provisions

of Federal law.

(b) Preferential or disparate treatment because of

imbalance in participation or receipt of Federal

benefits; statistical evidence of imbalance

Nothing contained in subsection (a) of this section

shall be interpreted to require any educational institution

to grant preferential or disparate treatment to the mem-

bers of one sex on account of an imbalance which may

exist with respect to the total number or percentage of

persons of that sex participating in or receiving the bene-

fits of any federally supported program or activity, in

comparison with the total number or percentage of per-

sons of that sex in any community, State, section, or other

area: Provided, That this subsection shall not be con-

strued to prevent the consideration ir any hearing or

proceeding under this chapter of statistical evidence ten-

ding to show that such an imbalance exicts with respect

to the participation in, or receipt of the benefits of, any

such program or activity by the members of one sex.

App. 5

For purposes of this chapter an educational institu-

tion 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, col-

lege, or department.

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

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

94-482, Title IV, § 412(a), Oct. 12, 1976, 90 Stat. 2234; Pub.

L. 96-88, Title III, § 301(a)(1), Title V, § 507, Oct. 17, 1979,

93 Stat. 677, 692; Pub.L. 99-514, § 2, Oct. 22, 1986, 100 Stat.

2095.)

HISTORICAL NOTES - HISTORICAL AND STATUTORY

NOTES

HISTORICAL AND STATUTORY NOTES

Revision Notes and Legislative Reports

1972 Act. House Report No. 92-554, Senate Report No.

92-604, and Senate Conference Report No. 92-798, see

1972 U.S.Code Cong. and Adm.News, p. 2462.

1974 Act. House Report No. 93-1056 and Senate Confer-

ence Report No. 93-1409, see 1974 U.S.Code Cong. and

Adm.News, p. 6779.

1976 Act. Senate Report No. 94-882 and House Confer-

ence Report No. 94-1701, see 1976 U.S.Code Cong. and

Adm.News, p. 4713.

A pp. 6

1979 Act. Senate Report No. 96-49 and House Conference

Report No. 96-459, see 1979 U.S.Code Cong. and

Adm.News, p.1514.

References in Text

[his chapter, referred to in subsecs. (b) and (c), was in the

original “this title”, meaning title IX of Pub.L. 92-318

which enacted this chapter and amended sections 203 and

213 of Title 29, Labor, and sections 2000c, 2000c-6,

2000c-9, and 2000h-2 of Title 42, The Public Health and

Welfare. For complete classification of title IX to the

Code, see Tables.

Amendments

1986 Amendment. Subsec. (a)(6)(A). Pub.L. 99-514 substi-

tuted “Internal Revenue Code of 1986” for “Internal Reve-

nue Code of 1954”, which for purposes of codification was

translated as “Title 26” thus requiring no change in text.

1976 Amendment. Subsec. (a). Pub.L. 94-482 in par. (6)

substituted “this” for “This”, and added pars. (7) to (9).

1974 Amendment. Subsec. (a). Pub.L. 93-568 added par.

(6).

Effective Dates

1976 Act. Section 412(b) of Pub.L. 94-482 provided that:

“The amendment made by subsection (a) [to this section]

shall take effect upon the date of enactment of this Act

[Oct. 12, 1976].”

App. 7

1974 Act. Section 3(b) of Pub.L. 93-568 provided that:

“The provisions of the amendment made by subsection

(a) [amending this section] shall be effective on, and

retroactive to, July 1, 1972.”

Transfer of Functions

“Secretary” was substituted for “Commissioner” in sub-

sec. (a)(2) pursuant to sections 301(a)(1) and 507 of Pub.

L. 96-88, which are classified to sections 3441(a)(1) and

3507 of this title and which transferred all functions of

the Commissioner of Education to the Secretary of Educa-

tion.

Short Title

1988 Amendment Pub.L. 100-259, § 1, Mar. 22, 1988, 102

Stat. 28, provided that: “This Act [enacting sections 1687

and 1688 of this title and section 2000d-4a of Title 42, The

Public Health and Welfare, amending sections 706 and

794 of Title 29, Labor, and section 6107 of Title 42, and

enacting provisions set out as notes under sections 1687

and 1688 of this title] may be cited as the ‘Civil Rights

Restoration Act of 1987’.”

Construction

Enactment of sections 1687 and 1688 of this title by Pub.L.

100-259 sot to be construed to extend the application of

title IX of the Education Amendments of 1972 [Pub.L.

92-318] to ultimate beneficiaries of Federal financial assis-

tance excluded from coverage before Mar. 22, 1988, see

App. 8

Pub.L. 100-259, § 7, Mar. 22, 1988, 102 Stat. 31, set out as a

note under section 1687 of this title.

Coordination of Implementation and Enforcement of Pro-

visions

For provisions relating to the coordination of implemen-

tation and enforcement of the provisions of this chapter

by the Attorney General, see section 1-201(b) of Ex. Ord.

No. 12250, Nov. 2, 1980, 45 F.R. 72995, set out as a note

under section 2000d-1 of Title 42, The Public Health and

Welfare.

Regulations; Nature of Particular Sports: Intercollegiate

Athletic Activities

Pub.L. 93-380, Title VIII, § 844, Aug. 21, 1974, 88 Stat. 612,

provided that the Secretary prepare and publish, not

more than 30 days after Aug. 21, 1974, proposed regula-

tions implementing the provisions of this chapter regard-

ing prohibition of sex discrimination in federally assisted

programs, including reasonable regulations for inter-

collegiate athletic activities considering the nature of the

particular sports.

App. 9

20 USCA § 1682. Federal Administrative enforcement;

report to Congressional committees

Each Federal department and agency which is

empowered to extend Federal financial assistance to any

education program or activity, by way of grant, loan, or

contract other than a contract of insurance or guaranty, is

authorized and directed to effectuate the provisions of

section 1681 of this title with respect to such program or

activity by issuing rules, 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 hear-

ing, of a failure to comply with such requirement, but

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

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

to whom such a finding has been made, and shall be

limited in its effect to the particular program, or part

thereof, in which such 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 appro-

priate 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

a at

App. 10

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 depart-

ment 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 elap-

sed after the filing of such report.

CREDIT(S)

1990 Main Volume

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

HISTORICAL NOTES — HISTORICAL AND STATUTORY

NOTES

HISTORICAL AND STATUTORY NOTES

Revision Notes and Legislative Reports

1972 Act. House Report No. 92-554, Senate Report

No. 92-604, and Senate Conference Report No. 92-798, see

1972 U.S.Code Cong. and Adm.News, p. 2462.

Delegation of Functions

Functions of the President relating to approval of

rules, regulations, and orders of general applicability

under this section, were delegated to the Attorney Gen-

eral, see section 1-102 of Ex. Ord. No. 12250, Nov. 2, 1980,

45 F.R. 72995, set out as a note under section 2000d-1 of

Title 42, The Public Health and Welfare.

rit atlhd aio diss hides 2s gs Di ACNE Sole cite oss,

poe

App. 11

Construction

Enactment of sections 1687 and 1688 of this title by

Pub.L. 100-259 not to be construed to extend the applica-

tion of title IX of the Education Amendments of 1972

[Pub.L. 92-318] to ultimate beneficiaries of Federal finan-

cial assistance excluded from coverage before Mar. 22,

1988, see Pub.L. 100-259, § 7, Mar. 22, 1988, 102 Stat. 31,

set out as a note under section 1687 of this title.

20 U.S.C.A. § 1687

Interpretation of “program or activity”

For the purposes of this chapter, the term! “program or

activity” and “program” mean all of the operations of -

(1)(A) a department, agency, special purpnse district,

or other instrumentality of a State or of a local govern-

ment; or

(B) the entity of such State or local government that

distributes such assistance and each such department or

agency (and each other State or local government entity)

to which the assistance is extended, in the case of assis-

tance to a State or local government;

(2)(A) a college, university, or other postsecondary

institution, or a public system of higher education: or

tee

' So in original. Probably should be plural.

App. 12

(B) a local educational agency (as defined in section

8801 of this title), system of vocational education, or other

school system;

(3)(A) an entire corporation, partnership, or other

private organization, or an entire sole proprietorship —

(i) if assistance is extended to such corporation, part-

nership, private organization, or sole proprietorship as a

whole; or

(ii) which is principally engaged in the business of

providing education, health care, housing, social services,

or parks and recreation; or

(B) the entire plant or other comparable, geograph-

ically separate facility to which Federal financial assis-

tance is extended, in the case of any other corporation,

partnership, private organization, or sole proprietorship;

(4) any other entity which is established by two or

more of the entities described in paragraph (1), (2), or (3);

any part of which is extended Federal financial assis-

tance, except that such term does not include any opera-

tion of an entity which is controlled by a religious

organization if the application of section 1681 of this title

to such operation would not be consistent with the reli-

gious tenets of such organization.

CREDIT(S)

1990 Main Volume

(Pub.L. 92-318, Title IX, § 908, as added Pub.L. 100-259,

§ 3(a), Mar. 22, 1988, 102 Stat. 28.)

App. 13

1998 Electronic Update

(As amended Pub.L. 103-382, Title III, § 391 (g), Oct. 20,

1994, 108 Stat. 4023.)

HISTORICAL NOTES - HISTORICAL AND STATUTORY

NOTES

HISTORICAL AND STATUTORY NOTES

Revision Notes and Legislative Reports

1988 Act. Senate Report No. 100-64, see 1988

U.S.Code Cong. and Adm.News, p. 3

1994 Acts. House Report No. 103-425 and House

Conference Report No. 103-761, see 1994 U.S. Code Cong.

and Adm. News, p. 2807.

References in Text

This chapter, referred to in Provision preceding par.

(1), was in the Original “this title”, meaning title [IX of

Pub.L. 92-318 which enacted this chapter and amended

sections 203 and 213 of Title 29. Labor, and sections 2000c.

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

Health and Welfare. For complete classification of title [x

to the Code, see Tables.

Amendments

1994 Amendments. Par. (2)(B). Pub.L. 103-382, § 391

\8), Substituted “section 8801 of this title” for “section

2854(a)(10) of this title”.

App. 14

Abortion Neutrality

This section not to be construed to force or require

any individual or hospital or any other institution, pro-

gram, or activity receiving Federal funds to perform or

pay for an abortion, see section 8 of Pub.L. 100-259, set

out as a note under section 1688 of this title.

Construction

Section 7 of Pub.L. 100-259 provided that: “Nothing

in the amendments made by this Act [enacting this sec-

tion, section 1688 of this title, and section 2000d-4a of

Title 42, The Public Health and Welfare, amending sec-

tions 706 and 794 of Title 29, Labor, and section 6107 of

Title 42, and enacting provisions set out as notes under

section 1681 and 1688 of this title] shall be construed to

extend the application of the Acts so amended [Education

Amendments of 1972 [Pub.L. 92-318, see Short Title of

1972 Amendment, set out as a note under section 1001 of

this title, Rehabilitation Act of 1973, section 701 et seq. of

Title 29, Age Discrimination Act of 1975, section 6101 et

seq. of Title 42, and Civil Rights Act of 1964, section 2000a

et seq. of Title 42] to ultimate beneficiaries of Federal

financial assistance excluded from coverage before the

enactment of this Act [Mar. 22, 1988].”

Findings of Congress

Section 2 of Pub.L. 100-259 provided that:

“The Congress finds that -

“(1) certain aspects of recent decisions and opinions

of the Supreme Court have unduly narrowed or cast

App. 15

doubt upon the broad application of title IX of the Educa-

tion Amendments of 1972 [this chapter], section 504 of

the Rehabilitation- Act of 1973 [section 794 of Title 29,

Labor], the Age Discrimination Act of 1975 [section 6101

et seq. of Title 42, The Public Health and Welfare], and

title VI of the Civil Rights Act of 1964 [section 2000d et

seq. of Title 42]; and

“(2) legislative action is necessary to restore the prior

consistent and longstanding executive branch interpreta-

tion and broad, institution-wide application of those laws

as previously administered.”

App. 16

CODE OF FEDERAL REGULATIONS

TITLE 34 - EDUCATION

SUBTITLE B —- REGULATIONS OF THE OFFICES

OF THE DEPARTMENT OF EDUCATION

CHAPTER I - OFFICE FOR CIVIL RIGHTS,

DEPARTMENT OF EDUCATION

PART 106 — NONDISCRIMINATION ON THE BASIS

OF SEX IN EDUCATION PROGRAMS AND ACTIVITIES

RECEIVING OR BENEFITING FROM

FEDERAL FINANCIAL ASSISTANCE

SUBPART A - INTRODUCTION

Current through May 22, 1998; 63 FR 28453

Source: 45 FR 30955, May 9, 1980, unless otherwise

noted.

34 C.F.R. Part 106

§ 106.1 Purpose and effective date.

The purpose of this part is to effectuate title IX of the

Education Amendments of 1972, as amended by Pub.L.

93-568, 88 Stat. 1855 (except sections 904 and 906 of those

Amendments) which is designed to eliminate (with cer-

tain exceptions) discrimination on the basis of sex in any

education program or activity receiving Federal financial

assistance, whether or not such program or activity is

offered or sponsored by an educational institution as

defined in this part. This part is also intended to effectu-

ate section 844 of the Education Amendments of 1974,

Pub.L. 93-380, 88 Stat. 484. The effective date of this part

shall be July 21, 1975.

(Authority: Secs. 901, 902, Education Amendments of

1972, 86 Stat. 373, 374; 20 U.S.C. 1681, 1682, as amended

by Pub.L. 93-568, 88 Stat. 1855, and Sec. 844, Education

Amendments of 1974, 88 Stat. 484, Pub.L. 93-380)

App. 17

§ 106.2 Definitions.

As used in this part, the term:

(a) “Title IX” means title IX of the Education

Amendments of 1972, Pub.L. 92-318, as amended by sec-

tion 3 of Pub.L. 93-568, 88 Stat. 1855, except sections 904

and 906 thereof; 20 U.S.C. 1681, 1682, 1683, 1685, 1686.

(b) “Department” means the Department of Educa-

tion.

(d) “Assistant Secretary” means the Assistant Secre-

tary for Civil Rights of the Department.

(e) “Reviewing Authority” means that component

of the Department delegated authority by the Secretary to

appoint, and to review the decisions of, administrative

law judges in cases arising under this part.

(f) “Administrative law judge” means a person

appointed by the reviewing authority to preside over a

hearing held under this part.

(g) “Federal financial assistance” means any of the

following, when authorized or extended under a law

administered by the Department:

(1) A grant or loan of Federal financial assistance,

including funds made available for:

(i) The acquisition, construction, renovation, resto-

ration, or repair of a building or facility or any portion

thereof; and

: (ii) Scholarships, loans, §rants, wages or other

funds extended to any entity for payment to or on behalf

BOR ph aE Seiitere on

App. 18 =

of students admitted to that entity, or extended directly to

such students for payment to that entity.

(2) A grant of Federal real or personal property or

any interest therein, including surplus property, and the

proceeds of the sale or transfer of such property, if the

Federal share of the fair market value of the property is

not, upon such sale or transfer, properly accounted for to

the Federal Government.

(3) Provision of the services of Federal personnel.

(4) Sale or lease of Federal property or any interest

therein at nominal consideration, or at consideration

reduced for the purpose of assisting the recipient or in

recognition of public interest to be served thereby, or

permission to use Federal property or any interest therein

without consideration.

(5) Any other contract, agreement, or arrangement

which has as one of its purposes the provision of assis-

tance to any education program or activity, except a con-

tract of insurance or guaranty.

(h) “Recipient” means any State or political subdivi-

sion thereof, or any instrumentality of a State or political

subdivision thereof, any public or private agency, institu-

tion, or organization, or other entity, or any person, to

whom Federal financial assistance is extended directly or

through another recipient and which operates an educa-

tion program or activity which receives or benefits from

such assistance, including any subunit, successor,

assignee, or transferee thereof.

OC —

(i) “Applicant” means one who submits an applica-

tion, request, or plan required to be approved by a

ee ee

fad

App. 19

Department official, or by a recipient, as a condition to

becoming a recipient.

() “Educational institution” means a local educa-

tional agency (LEA) as defined by section 1001(f) of the

Elementary and Secondary Education Act of 1965 (20

U.S.C. 3381), a preschool, a private elementary or second-

ary school, or an applicant or recipient of the type

defined by paragraph (k), (1), (m), or (n) of this section.

(k) “Institution of graduate higher education”

means an institution which:

(1) Offers academic study beyond the bachelor of

arts or bachelor of science degree, whether or not leading

to a certificate of any higher degree in the liberal arts and

sciences; or

(2) Awards any degree in a professional field

beyond the first professional degree (regardless of

whether the first professional degree in such field is

awarded by an institution of undergraduate higher edu-

cation or professional education); or

(3) Awards no degree and offers no further aca-

demic study, but operates ordinarily for the Purpose of

facilitating research by persons who have received the

highest graduate degree in any field of study.

(1) “Institution of undergraduate higher education”

means:

(1) An institution offering at least two but less than

four years of college level study beyond the high school

level, leading to a diploma or an associate degree, or

wholly or principally creditable toward a baccalaureate

degree; or

App. 20

(2) An institution offering academic study leading

to a baccalaureate degree; or

(3) An agency or body which certifies credentials or

offers degrees, but which may or may not offer academic

study.

(m) “Institution of professional education” means

an institution (except any institution of undergraduate

higher education) which offers a program of academic

study that leads to a first professional degree in a field for

which there is a national specialized accrediting agency

recognized by the Secretary.

(n) “Institution of vocational education” means a

school or institution (except an institution of professional

or graduate or undergraduate higher education) which

has as its primary purpose preparation of students to

pursue a technical, skilled, or semiskilled occupation or

trade, or to pursue study in a technical field, whether or

not the school or institution offers certificates, diplomas,

or degrees and whether or not it offers fulltime study.

(o) “Administratively separate unit” means a

school, department or college of an educational institu-

tion (other than a local educational agency) admission to

which is independent of admission to any other compo-

nent of such institution.

(p) “Admission” means selection for part-time, full-

time, special, associate, transfer, exchange, or any other

enrollment, membership, or matriculation in or at an

education program or activity operated by a recipient.

(q) “Student” means a person who has gained

admission.

App. 21

(r) “Transition plan” means a plan subject to the

approval of the Secretary pursuant to section 901(a)(2) of

the Education Amendments of 1972, under which an edu-

cational institution operates in making the transition

from being an educational institution which admits only

students of one sex to being one which admits students of

both sexes without discrimination.

(Authority: Secs. 901, 962, Education Amendments of

1972, 86 Stat. 373. 374; 20 U.S.C. 1681, 1682)

[45 FR 30955, May 9, 1980; 45 FR 37426, June 3, 1980]

§ 106.31 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 edu-

cation program or activity operated by a recipient which

receives or benefits from Federal financial assistance.

[his 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:

App. 22

(1) Treat one person differently from another in

determining whether such person satisfies any require-

ment or condition for the provision of such aid, benefit,

or service;

(2) Provide different aid, benefits, or services or

provide aid, benefits, or services in a different manner;

(3) Deny any person any such aid, benefit, or service;

(4) Subject any person to separate or different rules

of behavior, sanctions, or other treatment;

(5) Apply any rule concerning the domicile or resi-

dence of a student or applicant, including eligibility for

in-state fees and tuition;

(6) 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;

(7) Otherwise limit any person in the enjoyment of

any right, privilege, advantage, or opportunity.

tional institution to study at a foreign institution. A recip-

ient educational institution may administer or assist in

the administration of scholarships, fellowships, or other

awards established by foreign or domestic wills, trusts, or

similar legal instruments, or by acts of foreign govern-

ments and restricted to members of one sex, which are

designed to provide opportunities to study abroad, and

which are awarded to students who are already

matriculating at or who are graduates of the recipient

institution; Provided, a recipient educational institution

which administers or assists in the administration of such

Be ey

Pree ee

er ee

App. 23

scholarships, fellowships, or other awards which are

restricted to members of one sex provides, or otherwise

makes available reasonable Opportunities for similar

studies for members of the other sex. Such opportunities

may be derived from either domestic or foreign sources.

(d) Programs not operated by recipient.

(1) This paragraph applies to any recipient which

requires participation by any applicant, student, or

employee in any education program or activity not oper-

ated wholly by such recipient, or which facilitates, per-

mits, or considers such Participation as part of or

equivalent to an education program or activity operated

by such recipient, including participation in educational

consortia and cooperative employment and student-

teaching assignments.

(2) Such recipient;

(i) Shall develop and implement a procedure

designed to assure itself that the Operator or sponsor of

such other education program or activity takes no action

affecting any applicant, Student, or employee of such

recipient which this part would prohibit such recipient

from taking; and

(ii) Shall not facilitate, require, permit, or consider

such participation if such action occurs.

(Authority: Secs. 901, 902, Education Amendments of

1972, 86 Stat. 373, 374; 20 U.S.C. 1681, 1682)

CREDIT

[45 FR 30955, May 9, 1980, as amended at 47 FR 32527,

July 28, 1982]

App. 24

§ 106.32 Housing.

(a4) Generally. A recipient shall not, on the basis of

sex, apply different rules or regulations, impose different

fees or requirements, or offer different services or bene-

fits related to housing, except as provided in this section

(including housing provided only to married students).

(b) Housing provided by recipient.

(1) A recipient may provide separate housing on the

basis of sex.

(2) Housing provided by a recipient to students of

one sex, when compared to that provided to students of

the other sex, shall be as a whole:

(i) Proportionate in quantity to the number of stu-

dents of that sex applying for such housing; and

(ii) Comparable in quality and cost to the student.

(1) A recipient shall not, on the basis of sex, admin-

ister different policies or practices concerning occupancy

by its students of housing other than provided by such

recipient.

(2) A recipient which, through solicitation, listing,

approval of housing, or otherwise, assists any agency,

organization, or person in making housing available to

any of its students, shall take such reasonable action as

may be necessary to assure itself that such housing as is

provided to students of one sex, when compared to that

provided to students of the other sex, is s* » whole:

GA? chiteapeaglieiie wows Renard aa 36 eee

App. 25

(i) Proportionate in quantity and (ii) comparable in

quality and cost to the student. A recipient may render

such assistance to any agency, Organization, or person

which provides all or part of such housing to students

only of one sex.

(Authority: Secs. 901, 902, 907, Education Amend-

ments of 1972, 86 Stat. 373, 374, 375; 20 U.S.C. 1681, 1682,

1686)

§ 106.33 Comparable facilities.

A recipient may provide separate toilet, locker room,

and shower facilities on the basis of sex, but such facili-

ties provided for students of one sex shal] be comparable

to such facilities provided for students of the other sex.

(Authority: Secs. 901, 902, Education Amendments of

1972, 86 Stat. 373, 374)

§ 106.34 Access to course offerings.

A recipient shall not provide any course or otherwise

carry out any of its education program or activity sep-

arately on the basis of sex, or require or refuse participa-

tion therein by any of its students on such basis,

including health, physical education, industrial, business,

App. 26

vocational, technical, home economics, music, and adult

education courses.

(a) With respect to classes and activities in physical

education at the elementary school level, the recipient

shall comply fully with this section as expeditiously as

possible but in no event later than one year from the

effective date of this regulation. With respect to physical

education classes and activities at the secondary and

post-secondary levels, the recipient shall comply fully

with this section as expeditiously as possible but in no

event later than three years from the effective date of this

regulation.

(b) This section does not prohibit grouping of stu-

dents in physical education classes and activities by abil-

ity as assessed by objective standards of individual

performance developed and applied without regard to

Sex.

dents by sex within physical education classes or activ-

ities during participation in wrestling, boxing, rugby, ice

hockey, football, basketball and other sports the purpose

or major activity of which involves bodily contact.

(d) Where use of a single standard of measuring

skill or progress in a physical education class has an

adverse effect on members of one sex, the recipient shall

use appropriate standards which do not have such effect.

(e) Portions of classes in elementary and secondary

schools which deal exclusively with human sexuality may

be conducted in separate sessions for boys and girls.

App. 27

(f) Recipients may make requirements based on

vocal range or quality which may result in a chorus or

choruses of one or predominantly one sex.

(Authority: Secs. 901, 902, Education Amendments of

1972, 86 Stat. 373, 374; 20 U.S.C. 1681, 1682)

§ 106.35 Access to schools operated by LEAs.

A recipient which is a local educational agency shall

not, on the basis of sex, exclude any person from admis-

sion to:

(a) Any institution of vocational education operated

by such recipient; or

(b) Any other school or educational unit operated

by such recipient, unless such recipient otherwise makes

available to such person, pursuant to the same policies

and criteria of admission, courses, services, and facilities

comparable to each course, service, and facility offered in

or through such schools.

(Authority: Secs. 901, 902, Education Amendments of

1972, 86 Stat. 373, 374; 20 U.S.C. 1681, 1682)

App. 28

§ 106.36 Counseling and use of appraisal and counsel-

ing materials.

(a) Counseling. A recipient shall not discriminate

against any person on the basis of sex in the counseling

or guidance of students or applicants for admission.

(b) Use of appraisal and counseling materials. A

recipient which uses testing or other materials for

appraising or counseling students shall not use different

materials for students on the basis of their sex or use

materials which permit or require different treatment of

students on such basis unless such different materials

cover the same occupations and interest areas and the use

of such different materials is shown to be essential to

eliminate sex bias. Recipients shall develop and use inter-

nal procedures for ensuring that such materials do not

discriminate on the basis of sex. Where the use of a

counseling test or other instrument results in the substan-

tially disproportionate number of members of one sex in

any particular course of study or classification, the recip-

ient shall take such action as is necessary to assure itself

that such disproportion is not the result of discrimination

in the instrument or its application.

that a particular class contains a substantially dispropor-

tionate number of individuals of one sex, the recipient

shall take such action as is necessary to assure itself that

such disproportion is not the-result of discrimination on

the basis of sex in counseling or appraisal materials or by

counselors.

(Authority: Secs. 901, 902, Education Amendments of

1972, 86 Stat. 373, 374; 20 U.S.C. 1681, 1682)

App. 29

§ 106.37 Financia!’ assistance.

(a) General. Except as provided in paragraphs (b)

and (c) of this section, in providing financial assistance to

any of its students, a recipient shall not:

(1) On the basis of sex, provide different amount or

types of such assistance, limited eligibility for such assis-

tance which is of any particular type or source, apply

different criteria, or otherwise discriminate; (2) through

solicitation, listing, approval, provision of facilities or

other services, assist any foundation, trust, agency, orga-

nization, or person which provides assistance to any of

such recipient’s students in a manner which discriminates

on the basis of sex; or (3) apply any rule or assist in

application of any rule concerning eligibility for such

assistance which treats persons of one sex differently

from persons of the other sex with regard to marital or

parental status.

(b) Financial aid established by certain legal instru-

ments.

(1) A recipient may administer or assist in the

administration of scholarships, fellowships, or other

forms of financial assistance established pursuant to

domestic or foreign wills, trusts, bequests, or similar legal

instruments or by acts of a foreign government which

requires that awards be made to members of a particular

sex specified therein; Provided, That the overall effect of

the award of such sex-restricted scholarships, fellow-

ships, and other forms of financial assistance does not

discriminate on the basis of sex.

App. 30

(2) To ensure nondiscriminatory awards of assis-

tance as required in paragraph (b)(1) of this section,

recipients shall develop and use procedures under which:

(i) Students are selected for award of financial assis-

tance on the basis of nondiscriminatory criteria and not

on the basis of availability of funds restricted to members

of a particular sex;

(ii) An appropriate sex-restricted scholarship, fel-

lowship, or other form of financial assistance is allocated

to each student selected under paragraph (b)(2)(i) of this

section; and

(iii) No student is denied the award for which he or

she was selected under paragraph (b)(2)(i) of this section

because of the absence of a scholarship, fellowship, or

other form of financial assistance designated for a mem-

ber of that student’s sex.

(1) To the extent that a recipient awards athletic

scholarships or grants-in-aid, it must provide reasonable

opportunities for such awards for members of each sex in

proportion to the number of students of each sex partici-

pating in interscholastic or intercollegiate athietics.

(2) Separate athletic scholarships or grants-in-aid

for members of each sex may be provided as part of

separate athletic teams for members of each sex to the

extent consistent with this paragraph and § 106.41.

(Authority: Secs. 901, 902, Education Amendments of

1972, 86 Stat. 373, 374; 20 U.S.C. 1681, 1682; and Sec. 844,

Education Amendments of 1974, Pub.L. 93-380, 88 Stat. 484)

App. 31

§ 106.38 Employment assistance to students.

(a) Assistance by recipient in making available out-

side employment. A recipient which assists any agency,

organization or person in making employment available

to any of its students:

(1) Shall assure itself that such employment is made

available without discrimination on the basis of sex; and

(2) Shall not render such services to any agency,

organization, or person which discriminates on the basis

of sex in its employment practices.

(b) Employment of students by recipients. A recip-

ient which employs any of its students shall not do so ina

manner which violates Subpart E of this part.

(Authority: Secs. 901, 902, Education Amendments of

1972, 86 Stat. 373, 374; 20 U.S.C. 1681, 1682)

§ 106.39 Health and insurance benefits and services.

In providing a medical, hospital, accident, or life

insurance benefit, service, policy, or plan to any of its —

students, a recipient shall not discriminate on the basis of |

sex, or provide such benefit, service, policy, or plan in a

manner which would violate Subpart E of this part if it

were provided to employees of the recipient. This section

shail not prohibit a recipient from providing any benefit

or service which may be used by a different proportion of

students of one sex than of the other, including family

App. 32

planning services. However, any recipient which pro-

vides full coverage health service shall provide gyne-

cological care.

(Authority: Secs. 901, 902, Education Amendments of

1972, 86 Stat. 373, 374; 20 U.S.C. 1681, 1682)

§ 106.40 Martial or parental status.

(a) Status generally. A recipient shall not apply any

rule concerning a student's actual or potential parental,

family, or marital status which treats students differently

on the basis of sex.

(b) Pregnancy and related conditions.

(1) A recipient shall not discriminate against any

student, or exclude any student from its education pro-

gram or activity, including any class or extracurricular

activity, on the basis of such student’s pregnancy, child-

birth, false pregnancy, termination of pregnancy or recov-

ery therefrom, unless the student requests voluntarily to

participate in a separate portion of the program or activ-

ity of the recipient.

(2) A recipient may require such a student to obtain

the certification of a physician that the student is physi-

cally and emotionally able to continue participation in the

normal education program or activity so long as such a

certification is required of all students for other physical

or emotional conditions requiring the attention of a phy-

sician.

App. 33

(3) A recipient which operates a portion of its edu-

cation program or activity separately for pregnant stu-

dents, admittance to which is completely voluntary on

the part of the student as provided in paragraph (b)(1) of

this section shall ensure that the instructional program in

the separate program is comparable to that offered to

non-pregnant students.

(4) A recipient shall treat pregnancy, childbirth,

false pregnancy, termination of pregnancy and recovery

therefrom in the same manner and under the same poli-

cies as any other temporary disability with respect to any

medical or hospital benefit, service, plan or policy which

such recipient administers, operates, offers, or partici-

pates in with respect to students admitted to the recip-

ient’s educational program or activity.

(5) In the case of a recipient which does not main-

tain a leave policy for its students, or in the case of a

student who does not otherwise qualify for leave under

such a policy, a recipient shall treat pregnancy, childbirth,

false pregnancy, termination of pregnancy and recovery

therefrom as a justification for a leave of absence for so

long a period of time as is deemed medically necessary

by the student’s physician, at the conclusion of which the

student shall be reinstated to the status which she held

when the leave began.

(Authority: Secs. 901, 902, Education Amendments of

1972, 86 Stat. 373, 374; 20 U.S.C. 1681, 1682)

App. 34

§ 106.41 Athletics.

(a) General. No person shall, on the basis of sex, be

excluded from participation in, be denied the benefits of,

be treated differently from another person or otherwise

be discriminated against in any interscholastic, inter-

collegiate, club or intramural athletics offered by a recip-

ient, and no recipient shall provide any such athletics

separately on such basis.

(b) Separate teams. Notwithstanding the require-

ments of paragraph (a) of this section, a recipient may

operate or sponsor separate teams for members of each

sex where selection for such teams is based upon compet-

itive skill or the activity involved is a contact sport.

However, where a recipient operates or sponsors a team

in a particular sport for members of one sex but operates

or sponsors no such team for members of the other sex,

and athletic opportunities for members of that sex have

previously been limited, members of the excluded sex

must be allowed to try-out for the team offered unless the

sport involved is a contact sport. For the purposes of this

part, contact sports include boxing, wrestling, rugby, ice

hockev, football, basketball and other sports the purpose

or major activity of which involves bodily contact.

sponsors interscholastic, intercollegiate, club or intra-

mural athletics shall provide equal athletic opportunity

for members of both sexes. In determining whether equal

opportunities are available the Director will consider,

among other factors:

App. 35

(1) Whether the selection of sports and levels of

competition effectively accommodate the interests and

abilities of members of both sexes:

(2) The provision of equipment and supplies;

(3) Scheduling of games and practice time;

(4) Travel and per diem allowance;

(5) Opportunity to receive coaching and academic

tutoring;

(6) Assignment and compensation of coaches and

tutors:

Provision of locker rooms, practice and competi-

tive facilities:

(5) Provis‘on of medical and training facilities and

(9) Provision of housing and dining facilities and

(10) Publicity

Unequal aggregate expenditures for members of each sex

or unequal expenditures for male and female teams if a

recipient Operates Or sponsors separate teams will not

constitute noncompliance with this section, but the Assis-

tant secretary may consider the failure to provide neces-

- } . . — > " y vane

sary funds for teams tor one sex in assessing equality of

opportunity tor members of each sex

(d) Adjustment period. A recipient which operates

sponsors interscholastic, intercollegiate, club or intra-

mural athl he ele ‘ntar | level shall ’

murat athletics at the elementary school level shall con

ply fully with this section as expeditiously as possible but

App. 36

in no even later than one year from the effective date of

this regulation. A recipient which operates or sponsors

interscholastic, intercollegiate, club or intramural athle-

tics at the secondary or post- secondary school level shall

comply fully with this section as expeditiously as possi-

bly but in no event later than three years from the effec-

tive date of this regulation.

(Authority: Secs. 901, 902, Education Amendments of

1972, 86 Stat. 373, 374; 20 U.S.C. 1681, 1682; Sec. 844,

Education Amendments of 1974, Pub.L. 93-380, 88 Stat.

484)

§ 106.42 Textbooks and curricular material.

Nothing in this regulation shall be interpreted as

requiring or prohibiting or abridging in any way the use

of particular textbooks or curricular materials.

(Authority: Secs. 901, 902, Education Amendments of

1972, 86 Stat. 373, 374; 20 U.S.C. 1681, 1682)

§ 106.51 Employment.

(a) General.

(1) No person shall, on the basis of sex, be excluded

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

subjected to discrimination in employment, or recruit-

ment, consideration, or selection therefor, whether full-

App. 37

time or part-time, under any education program or activ-

ity operated by a recipient which receives or benefits

from Federal financial assistance.

(2) A recipient shall make all employment decisions

in any education program or activity operated by such

recipient in a nondiscriminatory manner and shall not

limit, segregate, or classify applicants or employees in

any way which could adversely affect any applicant's or

employee's employment Opportunities or status because

of sex.

(3) A recipient shall not enter into any contractual

or other relationship which directly or indirectly has the

effect of subjecting employees or students to discrimina-

tion prohibited by this subpart, including relationships

with employment and referral agencies, with labor

unions, and with organizations providing or administer-

ing fringe benefits to employees of the recipient.

(4) A recipient shall not grant preferences to appli-

cants for employment on the basis of attendance at any

educational institution or entity which admits as students

only or predominantly members of one sex, if the giving

of such preferences has the effect of discriminating on the

basis of sex in violation of this part.

(b) Application. The provisions of this subpart

apply to:

(1) Recruitment, advertising, and the process of

application for employment;

(2) Hiring, upgrading, promotion, consideration for

and award of tenure, demotion, transfer, layoff, termina-

tion, application of nepotism policies, right of return from

layoff, and rehiring;

App. 38

(3) Rates of pay or any other form of compensation,

and changes in compensation;

(4) Job assignments, classifications and structure,

including position descriptions, lines of progression, and

seniority lists;

(5) The terms of any collective bargaining agree-

ment;

(6) Granting and return from leaves of absence,

leave for pregnancy, childbirth, false pregnancy, termina-

tion of pregnancy, leave for persons of either sex to care

for children or dependents, or any other leave;

(7) Fringe benefits available by virtue of employ-

ment, whether or not administered by the recipient;

(8) Selection and financial support for training,

including apprenticeship, professional meetings, confer-

ences, and other related activities, selection for tuition

assistance, selection for sabbaticals and leaves of absence

to pursue training;

(9) Employer-sponsored activities, including social

or recreational programs; and

(10) Any other term, condition, or privilege of

employment.

(Authority: Secs. 901, 902, Education Amendments of

1972, 86 Stat. 373, 374; 20 U.S.C. 1681, 1682)

iors ies pias:

RANA Danes Retina ihe aa -dillate:

A pp. 39

§ 106.52. Employment criteria.

A recipient shall not administer or operate any test or

other criterion for any employment opportunity which

has a disproportionately adverse effect on persons on the

basis of sex unless:

(a) Use of such test or other criterion is shown to

predict validly successful performance in the position in

question; and

(b) Alternative tests or criteria for such purpose,

which do not have such disproportionately adverse

effect, are shown to be unavailable.

(Authority: Secs. 901, 902, Education Amendments of

1972, 86 Stat. 373, 374; 20 U.S.C. 1681, 1682)

§ 106.53 Recruitment

(a) Nondiscriminatory recruitment and hiring. A

recipient shall not discriminate on the basis of sex in the

recruitment and hiring of employees. Where a recipient

has been found to be presently discriminating on the

basis of sex in the recruitment or hiring of employees, or

has been found to have in the past so discriminated, the

recipient shall recruit members of the sex so discrimi-

nated against so as to overcome the effects of such past or

present discrimination.

(b) Recruitment patterns. A recipient shall not

recruit primarily or exclusively at entities which furnish

as applicants only or predominantly members of one sex

if such actions have the effect of discriminating on the

basis of sex in violation of this subpart.

App. 40

(Authority: Secs. 901, 902, Education Amendments of

1972, 86 Stat. 373, 374; 20 U.S.C. 1681, 1682)

§ 106.54 Compensation

A recipient shall not make or enforce any policy or

practice which, on the basis of sex:

(a) Makes distinctions in rates of pay or other com-

pensation;

(b) Results in the payment of wages to employees of

one sex at a rate less than that paid to employees of the

opposite sex for equal work on jobs the performance of

which requires equal skill, effort, and responsibility, and

which are performed under similar working conditions.

(Authority: Secs. 901, 902, Education Amendments of

1972, 86 Stat. 373, 374; 20 U.S.C. 1681, 1682)

§ 106.55 Job classification and structure.

A recipient shall not:

(a) Classify a job as being for males or for females; |

(b) Maintain or establish separate lines of progres-

sion, seniority lists, career ladders, or tenure systems

based on sex; or

sion, seniority systems, career ladders, or tenure systems

for similar jobs, position descriptions, or job requirements

App. 41

which classify persons on the basis of sex, unless sex is a

bona-fide occupational qualification for the positions in

question as set forth in § 106.61.

(Authority: Secs. 901, 902, Education Amendments of

1972, 86 Stat. 373, 374; 20 U.S.C. 1681, 1682)

§ 106.56 Fringe benefits.

(a) “Fringe benefits” defined. For purposes of this

part, “fringe benefits” means: Any medical, hospital, acci-

dent, life insurance or retirement benefit, service, policy

or plan, any profit-sharing or bonus plan, leave, and any

other benefit or service of employment not subject to the

provision of § 106.54.

(b) Prohibitions. A recipient shall not:

(1) Discriminate on the basis of sex with regard to

making fringe benefits available to employees or make

fringe benefits available to spouses, families, or depen-

dents of employees differently upon the basis of the

employee’s sex;

(2) Administer, operate, offer, or participate in a

fringe benefit plan which does not provide either for

equal periodic benefits for members of each sex, or for

equal contributions to the plan by such recipient for

members of each sex; or

(3) Administer, operate, offer, or participate in a

pension or retirement plan which establishes different

optional or compulsory retirement ages based on sex or

which otherwise discriminates in benefits on the basis of

Sex.

App. 42

(Authority: Secs. 901, 902, Education Amendments of

1972, 86 Stat. 373, 374; 20 U.S.C. 1681, 1682)

§ 106.57 Marital or parental status.

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

take any employment action:

(1) Concerning the potential marital, parental, or

family status of an employee or applicant for employ-

ment which treats persons differently on the basis of sex;

(2) Which is based upon whether an employee or

application for employment is the head of household or

principal wage earner in such employee’s or applicant's

family unit.

(b) Pregnancy. A recipient shall not discriminate

against or exclude from employment any employee or

applicant for employment on the basis of pregnancy,

childbirth, false pregnancy, termination of pregnancy, or

recovery therefrom.

shall treat pregnancy, childbirth, false pregnancy, termi-

nation of pregnancy, and recovery therefrom and any

temporary disability resulting therefrom as any other

temporary disability for all job related purposes, includ-

ing commencement, duration and extensions of leave,

payment of disability income, accrual of seniority and

any other benefit or service, and reinstatement, and

under any fringe benefit offered to employees by virtue

of employment.

App. 43

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

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

the case of an employee with insufficient leave or accrued

employment time to qualify for leave under such a policy,

a recipient shall treat pregnancy, childbirth, false preg-

nancy, termination of pregnancy and recovery therefrom

as a justification for a leave of absence without pay fora

reasonable period of time, at the conclusion of which the

employee shall be reinstated to the status which she held

when the leave began or to a comparable position, with-

out decrease in rate of compensation or loss of promo-

tional opportunities, or any other right or privilege of

employment.

(Authority: Secs. 901, 902, Education Amendments of

1972, 86 Stat. 373, 374; 20 U.S.C. 1681, 1682)

App. 44

[102 STAT. 28]

PUBLIC LAW 100-259 [S. 557]; March 22, 1988

CIVIL RIGHTS RESTORATION ACT OF 1987

For Legislative History of Act, see p. 3.

An Act to restore the broad scope of coverage

and to clarify the application of title IX of the

Education Amendments of 1972, section 504 of

the Rehabilitation Act of 1973, the Age Dis-

crimination Act of 1975, and title VI of the

Civil Rights Act of 1964.

Be it enacted by the Senate and House of Representatives

of the United States of America in Congress assembled,

SHORT TITLE

Section 1. This Act may be cited as the “Civil Rights

Restoration Act of 1987”.

FINDINGS OF CONGRESS

Sec. 2. The Congress finds that -

(1) certain aspects of recent decisions and opin-

ions of the Supreme Court have unduly narrowed or

cast doubt upon the broad application of title IX of

the Education Amendments of 1972, section 504 of

the Rehabilitation Act of 1973, the Age Discrimina-

tion Act of 1975, and title VI of the Civil Rights Act of

1964; and

(2) legislative action is necessary to restore the

prior consistent and long-standing executive branch

interpretation and broad, institution-wide applica-

tion of those laws as previously administered.

App. 45

EDUCATION AMENDMENTS AMENDMENT

Sec. 3. (a) Title IX of the Education Amendments of

1972 is amended by adding at the end the following new

sections:

“INTERPRETATION OF ‘PROGRAM OR ACTIVITY’

“Sec. 908. For the purposes of this title, the term

‘program or activity’ and ‘program’ mean all of the oper-

ations of -

“(1)(A) a department, agency, special purpose

district, or other instrumentality of a State or of a

local government; or

“(B) the entity of such State or local government

that distributes such assistance and each such depart-

ment or agency (and each other State or local govern-

ment entity) to which the assistance is extended, in

the case of assistance to a State or local government;

“(2)(A) a college, university, or other postsecond-

ary institution, or a public system of higher educa-

tion; or

“(B) a local educational agency (as defined in

section 198(a)(10) of the Elementary and Secondary

Education Act of 1965), system of vocational educa-

tion, or other school system;

“(3)(A) an entire corporation, partnership, or

other private organization, or an entire sole propri-

etorship -

[102 STAT. 29] “(i) if assistance is extended to

such corporation, partnership, private organiza-

tion, or sole proprietorship as a whole; or

App. 46

“(ii) which is principally engaged in the

business of providing education, health care,

housing, social services, or parks and recreation;

“(B) the entire plant or other comparable, geo-

graphically separate facility to which Federal finan-

cial assistance is extended, in the case of any other

corporation, partnership, private organization, or

sole proprietorship; or

“(4) any other entity which is established by two

or more of the entities described in paragraph (1), (2),

or (3);

any part of which is extended Federal financial assis-

tance, except that such term does not include any opera-

tion of an entity which is controlled by a religious

organization if the application of section 901 to such

operation would not be consistent with the religious

tenets of such organization”.

(b) Notwithstanding any provision of this Act or

any amendment adopted thereto:

“NEUTRALITY WITH RESPECT TO ABORTION

“Sec. 909. Nothing in this title shall be construed to

require or prohibit any person, or public or private entity,

to provide or pay for ary benefit or service, including the

u f facilities, related to an abortion. Nothing in this

se *:2 shall be construed to permit a penalty to be

imposed on any person or individual because such per-

son or individual is seeking or has received any benefit or

service related to a legal abortion”.

Sasha Reeds Oe?

a Bateant

App. 47

REHABILITATION ACT AMENDMENT

Sec. 4. Section 504 of the Rehabilitation Act of 1973 is

amended —

(1) by inserting “(a)” after “Src. 504.”; and

(2) by adding at the end the following new sub-

sections:

“(b) For the purposes of this section, the term ‘pro-

gram or activity’ means all of the operations of —

“(1)(A) a department, agency, special purpose

district, or other instrumentality of a State or of a

local government; or

“(B) the entity of such State or local government

that distributes such assistance and each such depart-

ment or agency (and each other State or local govern-

ment entity) to which the assistance is extended, in

the case of assistance to a State or local government;

(2)(A) a college, university, or other postsecond-

ary institution, or a public system of higher educa-

tion; or

“(B) a local educational agency (as defined in

section 198(a)(10) of the Elementary and Secondary

Education Act of 1965), system of vocational educa-

tion, or other school system;

“(3)(A) an entire corporation partnership, or

other private organization, or an entire sole propri-

etorship -

“(i) if assistance is extended to such corpora-

tion, partnership, private organization, or sole

proprietorship as a whole; or

“(ii) which is principally engaged in the

business of providing education, health care,

App. 48

housing, social services, or parks and recreation;

[102 STAT. 30] “(B) the entire plant or other com-

parable, geographically separate facility to which

Federal financial assistance is extended, in the case of

any other corporation, partnership, private organiza-

tion, or sole proprietorship; or

“(4) any other entity which is established by two

or more of the entities described in paragraph (1), (2),

or (3);

any part of which is extended Federal financial assis-

tance.

“(c) Small providers are not required by subsection

(a) to make significant structural alterations to their exis-

ting facilities for the purpose of assuring program acces-

sibility, if alternative means of providing the services are

available. The terms used in this subsection shall be

construed with reference to the regulations existing on

the date of the enactment of this subsection”.

AGE DISCRIMINATION ACT AMENDMENT

Sec. 5. Section 309 of the Age Discrimination Act of

1975 is amended -

(1) by striking out “and” at the end of paragraph

(2);

(2) by striking out the period at the end of para- |

graph (3) and inserting “; and” in lieu thereof; and

(3) by inserting after paragraph (3) the following

new paragrapr:

(4) the term ‘program or activity’ means all of

the operations of -

App. 49

“(A)(i) a department, agency, special pur-

pose district, or other instrumentality of a State

or of a local government; or

“(ii) the entity of such State or local govern-

ment that distributes such assistance and each

such department or agency (and each other State

or local government entity) to which the assis-

tance is extended, in the case of assistance to a

State or local government:

“(B)(i) a college, university, or other postse-

condary institution, or a public system of higher

education; or

“(il) a local educational agency (as defined in

section 198(a)(10), of the Elementary and Second-

ary Education Act of 1965), system of vocational

education, or other school system;

“(C)(i) an entire corporation, partnership, or

other private organization, or an entire sole pro-

prietorship —

“(I) if assistance is extended to such cor-

poration, partnership, private organization,

or sole proprietorship as a whole; or

“(II) which is principally engaged in the

business of providing education, health care,

housing, social services, or parks and recre-

ation; or

“(ii) the entire plant or other comparable,

geographically separate facility to which Federal

financial assistance is extended, in the case of

any other corporation, partnership, private orga-

nization, or sole proprietorship; or

“(D) any other entity which is established by two

or more of the entities described in subparagraph

(A), (B), or (C);

tesensnnsnsceaichuiscn wage wi ee ee

ee er a ES ee

App. 50

any part of which is extended Federal Financial assis-

tance”.

[102 STAT. 31] CIVIL RIGHTS ACT AMENDMENT

Sec. 6. Title VI of the Civil Rights Act of 1964 is

amended by adding at the end the following new section:

“Sec. 606. For the purposes of this title, the term

‘program or activity’ and the term ‘program’ mean all the

operations of - ~

“(1)(A) a department, agency, special purpose

district, or other instrumentality of a State or of a

local government; or

“(B) the entity of such State or local government

that distributes such assistance and each such depart-

ment or agency (and each other State or local govern-

ment entity) to which the assistance is extended, in

the case of assistance to a State or local government;

“(2)(A) a college, university, or other postsecond-

ary institution, or a public system of higher educa-

tion; or

“(B) a local educational agency (as defined in

section 198(a)(10) of the Elementary and Secondary

Education Act of 1965), system of vocational educa-

tion, or other school system;

“(3)(A) an entire corporation, partnership, or

other private organization, or an entire sole propri-

etorship —

“(i) if assistance is extended to such corpora-

tion, partnership, private organization, or sole

proprietorship as a whole; or

“(ii) which is principally engaged in the

business of providing education, health care,

App. 51

housing, social services, or parks and recreation;

“(B) the entire plant or other comparable, geo-

graphically separate facility to which Federal finan-

cial assistance is extended, in the case of any other

corporation, partnership, private organization, or

sole proprietorship; or

“(4) any other entity which is established by two

or more of the entities described in paragraph (1), (2),

or (3);

any part of which is extended Federal financial assis-

tance.”.

RULE OF CONSTRUCTION

Sec. 7. Nothing in the amendments made by this Act shall

be construed to extend the application of the Acts so

amended to ultimate beneficiaries of Federal financial

assistance excluded from coverage before the enactment

of this Act.

ABORTION NEUTRALITY

Sec. 8. No provision of this Act or any amendment made

by this Act shall be construed to force or require any

individual or hospital or any other institution, program,

or activity receiving Federal Funds to perform or pay for

an abortion.

CLARIFICATION OF INDIVIDUALS WITH

HANDICAPS IN THE EMPLOYMENT CONTEXT

Sec. 9. Section 7(8) of the Rehabilitation Act of 1973 is

amended by adding after subparagraph (B) the following:

App. 52

“(C) For the purpose of sections 503 and 504, as

such sections relate to employment, such term does not

include an individual who [102 STAT. 32] has a currently

contagious disease or infecticn and who, by reason of

such disease or infection, would constitute a direct threat

to the health or safety of other individuals or who, by

reason of the currently contagious disease or infection, is

unable to perform the duties of the job”.

Jim WriGHtT

Speaker of the House of Representatives.

Harry M. Reip

Acting President of the Senate pro tempore.

IN THE SENATE OF THE UNITED STATES,

March 22 (legislative day, March 21), 1988.

The Senate having proceeded to reconsider the bill

(S. 557) entitled “An Act to restore the broad scope of

coverage and to clarify the application of title IX of the

Education Amendments of 1972, section 504 of the Reha-

bilitation Act of 1973, the Age Discrimination Act of 1975,

and title VI of the Civil Rights Act of 1964”, returned by

the President of the United States with his objections, to

the Senate, in which it originated, it was

Resolved, That the said bill pass, two-thirds of the

Senators present having voted in the affirmative.

Attest:

Wa tTER J. STEWART

Secretary.

I certify that this Act originated in the Senate.

Wa TER J. STEWART

Secretary.

App. 53

IN THE HOUSE OF REPRESENTATIVES, U.S.,

March 22, 1988.

The House of Representatives having proceeded to

reconsider the bill (S. 557) entitled “An Act to restore the

broad scope of coverage and to clarify the application of

title IX of the Education Amendments of 1972, section 504

of the Rehabilitation Act of 1973, the Age Discrimination

Act of 1975, and title VI of the Civil Rights Act of 1964”,

returned by the President of the United States with his

objections, to the Senate, in which it Originated, and

passed by the Senate on reconsideration of the same, it

was

Resolved. That the said bill pass, two-thirds of the

House of Representatives agreeing to pass the same.

Attest:

DONNALD K. ANDERSON

Clerk.

LEGISLATIVE HISTORY - S. 557:

SENATE REPORTS: No. 100-64 (Comm. on Labor and

Human Resources).

CONGRESSIONAL RECORD, Vol. 134 (1988):

Jan. 26-28, considered and passed Senate.

Mar. 2, considered and passed House.

WEEKLY COMPILATION OF PRESIDENTIAL DOCU-

MENTS, Vol. 24 (1988):

Mar. 16, Presidential veto messages.

CONGRESSIONAL RECORD, Vol. 134 (1988):

Mar. 22, Senate and House overrode veto.

App. 54

CIVIL RIGHTS RESTORATION ACT OF 1987

P.L. 100-259, see page 102 Stat. 28

Dates OF CONSIDERATION AND PASSAGE

House: March 2, 1988

Senate: January 28, 1988

Senate Report (Labor and Human Resources Committee)

No. 100-64, June 5, 1987 [To accompany S. 557]

Cong. Record Vol. 134 (1988)

No House Report was submitted with this legislation.

SENATE REPORT NO. 100-64

[page 1]

The Committee on Labor and Human Resources, to

which was referred the bill (S. 557), to restore the broad

scope of coverage and to clarify the application of title IX

of the Education Amendments of 1972, section 504 of the

Rehabilitation Act of 1973, the Age Discrimination Act of

1975, and title VI of the Civil Rights Act of 1964, having

considered the same, reports favorably thereon with an

amendment in the nature of a substitute, and recom-

mends that the bill as amended do pass.

Il. INTRODUCTION

On May 20, 1987, the Committee on Labor and

Human Resources, by a vote of 12-4, ordered favorably

reported S. 557, “The Civil Rights Restoration Act of

1987.” Senators voting in favor of the bill were Senators

Kennedy, Pell, Metzenbaum, Matsunaga, Dodd, Simon,

Harkin, Adams, Mikulski, Stafford, Weicker, and

App. 55

Cochran. Voting against were Senators Hatch, Quayle,

[hurmond, and Humphrey.

The bill is sponsored by Senator Edward M. Kennedy,

Chairman of the Committee, and cosponsored by Sena-

tors Weicker, Metzenbaum, Packwood, Cranston,

Stafford, Adams, Baucus, Bentsen, Biden, Bingaman,

Bradley, Breaux, Burdick, Chafee, Chiles, Cohen, Daschle,

DeConcini, Dodd, Ford, Fowler, Glenn, Gore, Harkin,

Hol-

[page 2]

lings, Inouye, Johnston, Kerry, Lautenberg, Leahy, Levin,

Matsunaga, Melcher, Mikulski, Mitchell, Moynihan, Pell,

Proxmire, Riegle, Rockefeller, Sanford, Sarbanes, Simon,

Specter, Stevens, Wirth, Dixon, Rudman, Durenberger,

Evans, Boschwitz, Heinz, Sasser, Graham, Nunn,

Bumpers and Pryor.

Il. Purpose

S. 557 was introduced on February 19, 1987, to over-

turn the Supreme Court’s 1984 decision in Grove City

College v. Bell, 465 U.S. 555,! and to restore the effective-

ness and vitality of the four major civil rights statutes

that prohibit discrimination in federally assisted pro-

grams.

The Grove City ruling severely narrows the applica-

tion of coverage of Title IX of the Education Amendments

of 1972, Title VI of the Civil Rights Act of 1964, Section

' 104 S.Ct. 1211, 79 L.Ed.2d 516.

App. 56

504 of the Rehabilitation Act of 1973, and the Age Dis-

crimination Act of 1975.

The purpose of the Civil Rights Restoration Act of

1987 is to reaffirm pre-Grove City College judicial and

executive branch interpretations and enforcement prac-

tices which provided for broad coverage of the anti-

discrimination provisions of these civil rights statutes.

Ill. BAackGROUND

In 1963, when President John F. Kennedy transmitted

the Civil Rights Act to Congress, he stated:

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 dis-

crimination. 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, .. .

The legislation responded to increasing minority pro-

test over continuing racial discrimination in schools, vot-

ing, public accommodations and housing discrimination

that had persisted in many instances in the face of court

decisions declaring the practices unconstitutional. Title VI

bars discrimination based on r ice, color or national origin

in a “program or activity” that receives Federal aid, and

was part of the most far-reaching civil rights legislation

since the Reconstruction Era.

App. 57

Title VI became a major vehicle for attacking the

separate and unequal society which denied basic oppor-

tunities to millions of Americans. Recognizing that other

groups also suffered the effects of discrimination, Con-

gress enacted legislation protecting the civil rights of

women, disabled persons and older Americans.

Title IX of the Education Amendments of 1972 pro-

hibits sex discrimination in educational programs o

activities receiving Federal financial assistance. Title IX

has broken down a variety of sex barriers in education,

including participation in athletics and graduate degree

programs.

Section 504 of the Rehabilitation Act of 1973 prohibits

recipients of Federal funding from discriminating a

gainst

disabled persons.

[page 3]

Since this law was passed, opportunities for disabled

persons have increased in education, employment, hous-

ing, transportation and health social services.

The Age Discrimination Act of 1975 prohibits dis-

crimination on the basis of age in the delivery of services

and benefits supported by Federal funds. This act has

helped increase public awareness of the barriers to full

opportunity that continue to exist for millions of Ameri-

cans.

Each of the statutes employs the same careful lan-

guage te describe coverage so that the same standards are

used to interpret and enforce all four laws. Therefore, on

February 28, 1984, when the Supreme Court decided the

App. 58

Title IX case, Grove City v. Bell, all four statutes were

affected.

The Court unanimously held that the student aid

dollars reaching the college through its students constitu-

ted federal financial assistance to the school. However, in

determining the scope of the duty not to discriminate, a

divided court interpreted the law’s “program or activity”

phrase narrowly. Because the only Federal money reach-

ing the college was in the form of student aid the Court

concluded that only the financial aid office was covered

by Title IX. The rest of the college was left free to deny

equal opportunities to women (and by analogy to minor-

ities, disabled and older persons as well). The Grove City

ruling reversed years of administrative interpretation and

enforcement practice by Republican and Democratic

administrations and was in conflict with many court

interpretations of the laws. On the same day, the Supreme

Court ruled in an employment case arising under Section

504 that the phrase “program or activity” was as narrow

under that law as under Title IX. Consolidated Rail Corpo-

ration v. Darrone, 465 U.S. 624, 104 S. Ct. 12482 (1984).

In response to the Grove City College decision. Sena-

tors Kennedy and Packwood introduced S. 2568, the

“Civil Rights Act of 1984” on April 12, 1984. The bill had

63 cosponsors in the Senate. Hearings were held in the

Labor and Human Resources Committee on May 24, 1984

and June 26, 1984.

The bill would have deleted the words “program or

activity” from Title IV, Title VI, section 504, and the Age

2 79 L.Ed.2d 568.

App. 59

Discrimination Act, and substituted the word “recipient.”

An identical bill passed the House of Representatives by

a vote of 375 to 32 on June 26, 1984.

The bill was not reported by the Labor and Human

Resources Committee. It was offered as a floor amend-

ment to the continuing resolution and was tabled in the

closing days of the 98th Congress after a filibuster which

continued even after the invocation of cloture.

In the 99th Congress, S. 431, the “Civil Rights Resto-

ration Act of 1985” was introduced on February 7, 1985

with 47 cosponsors. Hearings were held in the Labor and

Human Resources Committee on July 17, 1985 and Sep-

tember 20, 1985. The bill was not reported by the Labor

and Human Resources Committee.

In this Congress, S. 557, the “Civil Rights Restoration

Act of 1987” was introduced on February 19, 1987, with

56 cosponsors. As of the filing of this report, there are 58

cosponsors. Hearings were held by the Labor and Human

Resources Committee on March 19

[page 4]

and April 1. The bill was ordered reported on May 20, by

a vote of 12-4.

IV. SUMMARY OF THE BILL

S. 557 will restore Title IX, Section 504, the Age

Discrimination Act and Title VI to the broad, institute-

wide application which characterized coverage and

enforcement from the time of initial passage until the

Grove City decision. It adds no new language to the

coverage or fund termination provisions of Title VI, Title

App. 60

IX, section 504, and the Age Discrimination Act. The Civil

Rights Restoration Act of 1987 amends each of the

affected statutes by adding a section defining the phrase

“program or activity” and “program” to make clear that

discrimination is prohibited throughout entire agencies

or institutions if any part receives Federal financial assis-

tance. This approach is very different from that taken in

the bill considered in the 98th Congress. That bill deleted

the term “program or activity” and instead defined

“recipient” of federal financial assistance. The change in

S. 557 was made in the interest of greater clarity.

For education institutions, the bill provides that

where federal aid is extended anywhere within a college,

university, or public system of higher education, the

entire institution or system is covered. If federal aid is

extended anywhere in an elementary or secondary school

system, the entire system is covered.

For State and local governments, only the depart-

ment or agency which receives the aid is covered. Where

an entity of state or local government receives federal aid

and distribute it to another department or agency, both

entities are covered.

For private corporations, if the federal aid is

extended to the corporation as a whole, or if the corpora-

tion provides a public service, such as social services,

education, or housing the entire corporation is covered. If

the federal aid is extended to only one plant or geograph-

ically separate facility, only that plant is covered.

For other entities established by two or more of the

above-described entities, the entire entity is covered if it

receives any federal aid.

App. 61

The bill contains a rule of construction which leaves

intact the current exemption from coverage by the civil

rights laws for “ultimate beneficiaries” of federal finan-

cial assistance. The bill also incorporates regulatory

“smail providers” exceptions into the coverage provisions

of section 504 and clarifies that the religious tenet exemp-

tion in Title IX extends to any activity of an entity con-

trolled by a religious organization which would

otherwise be covered by Title IX. It does not otherwise

change the current nature of the religious tenet exemp-

tion.

V. Neep ror LEGISLATION

PRE-GROVE CITY COVERAGE OF THE FOUR STATUTES WAS INSTITU-

TION-WIDE

The legislative history of the statutes in question

shows Congress intended institution-wide coverage.

[page 5]

In enacting the four civil rights statutes, Congress

intended that each be broadly interpreted to provide

effective remedies against discrimination. The debates

emphasized both the anticipated breadth of coverage as

well as the important and fundamental aims these stat-

utes would achieve. This was clear not only in connection

with Title VI, but also with the other civil rights statutes

which were modeled on Title VI with respect to both

language and intended effect. Contrary to the view of the

Supreme Court that the language common to these stat-

utes (i.e., “program or activity”) should be given a lim-

ited interpretation, Congress intended institution wide

App. 62

coverage and the executive branch has historically insis-

ted upon this view. It was understood at the outset that

the task of eliminating discrimination from institutions

which receive federal financial assistance could only be

accomplished if the civil rights statutes were given the

broadest interpretation.

A. Title VI

When Congress enacted Title VI, it emphasized the

breadth of its coverage. For example, Senator Hubert

Humphrey stated that “the purpose of Title VI is to make

sure the funds of the United States are not used to sup-

port racial discrimination” 110 Cong. Rec. 6544 (1964).

Indeed, both proponents and opponents agreed that the

prohibition of discrimination would be a broad one. See

110 Cong. Rec. 6544 (broad power to eliminate discrimi-

nation conferred) (remarks of Senator Humphrey); Id at

13322. (“ ... title VI sufficiently broad .. . for issuance of

open housing order affecting the entire United States”)

(remarks of Senator Gore); Id at 13378 (broad power

delegated to eliminate discrimination) (remarks of Sena-

tor McClellan.)

That Congress intended a broadly applicable prohibi-

tion of discrimination is underscored by the narrow fund-

ing termination provision included in each of the statutes.

During the Title VI debate, great emphasis was given to

the distinction between Section 601 of Title VI which bans

discrimination, and Section 602 which provides for termi-

nation of federal aid. Many feared that the passage of

Title VI would lead to immediate termination of federal

aid to many institutions and states which engaged in

App. 63

open racial discrimination. Senator Humphrey noted that

the purpose of Title VI was not to penalize recipients of

federal financial assistance but to end discrimination. Id.

To that end, Senator Humphrey said, agencies would

have broad discretion to adopt measures which would

accomplish the goal of eliminating discrimination in a

“state agency” or “institution” which engages in discrimi-

nation. He said, “[a]ny non-discrimination requirement

an agency adopts must be supportable as tending to end

racial discrimination with respect to the particular pro-

gram or activity to which it applies.” Id. Humphrey

pointed out that agencies were authorized to achieve

compliance “by any other means authorized by law” in

order to encourage them to find ways to end discrimina-

tion without refusing or terminating assistance. Id.

B. Title IX

Congress also intended that Title IX, the first of sev-

eral discrimination statutes to be modeled on Title VI,

also be broadly interpret-

[page 6]

ed. For example, Senator Birch Bayh, chief sponsor and

floor manager of Title IX, said that Congress intended

that Title IX be -

a strong and comprehensive measure [that] is

needed to provide women with solid legal pro-

tection from persistent, pernicious discrimina-

tion which is serving to perpetuate second-class

citizenship for American women. 118 Cong. Rec.

9804 (1972).

App. 64

And during the Title IX debate, several members of

Congress stated that Title IX prohibitions would apply to

universities “ . . . across the board . . . ” irrespective

whether individual departments received federal funds.

See e.g. 118 Cong. Rec. 39256, (remarks of Rep. Green);

117 Cong. Rec. 30407 (1971) (intent is to “provide equal

access for women and men students to the educational

process and the extracurricular activities in a school)

(remarks of Senator Bayh); 117 Cong. Rec. 30408 (sanc-

tions directed at institution) (remarks of Senator Bayh);

117 Cong. Rec. 39251-52 (“institutions of higher learning

[must] practice (equality or not come to Federal Govern-

ment for financial support”) (remarks of Rep. Mink)

(emphasis added).

More than a decade after the passage of title IX,

former Senator Birch Bayh returned to the Senate to reite-

rate “what we, as legislators, understood about the law at

that time.” Testimony of Birch Bayh, Joint Hearings on

H.R. 5490, p. 41, May 9, 1984. According to Mr. Bayh, Title

IX was enacted by a Congress which was familiar with

the broad manner in which Title VI had been enforced.

There was no need to restate these understandings at the

time Title IX was enacted.

. if you look back into what we in Congress

understood title VI to mean at the time we

adopted title IX, it is no wonder we did not feel

it necessary to repeat, every time we mentioned

the purpose and scope of the legislation, that we

intended broad, institutionwide coverage . . .

... [W]e were building on an understanding of

Title VI that had never suggested narrow cover-

age was intended. Id.

App. 65

According to Senator Bayh, institutionwide coverage was

necessary in order to accomplish the broad Purposes of

the bill.

Nothing else would have made any sense if our

goal was meaningful coverage and effective

enforcement. Id.

C. Section 504 of the Rehabilitation Act

Congress also intended that the prohibitions of Sec-

tion 504 of the Rehabilitation Act also apply institution-

wide. Key sponsors of earlier versions of Section 504

spoke of the broad purposes which would underlie a

prohibition against handicap discrimination. For exam-

ple, Representative Vanik stated that -

my proposed legislation will insure equal edu-

cational and employment Opportunities for the

handicapped by making discrimination illegal in

federally assisted programs and activities. 118

Cong. Rec. 526

[page 7]

And Senator Percy emphasized the spectrum of rights

which would be embodied in a prohibition against hand-

icap discrimination.

The bill would guarantee the handicapped equal

Opportunity to education, job training, produc-

tive work, due process of law, a decent standard

of living, and protection from exploitation,

abuse, and degradation.

App. 66

Just a year after the passage of Section 504, Congress

clearly expressed the view that prohibition against dis-

crimination included in Section 504 was to be read as

broadly as that included in Title VI.

Section 504 was patterned after, and is

almost identical to, the antidiscrimination lan-

guage of ... [Title VI] . . . and [Title IX]. . . the

Section therefore constitutes the establishment

of a broad government policy that programs

receiving Federal financial assistance shall be

operated without discrimination on the basis of

handicap. Senate Report (Labor and Public Wel-

fare Committee) (No. 93-1297, November 16,

1974, 120 Cong. Record p. 30534 (1974).

D. Age Discrimination Act of 1975

The Age Discrimination Act must also be read in the

same fashion. The statute is virtually identical to the

previous nondiscriminatin [sic] statutes. When the Con-

gress passed this legislation, it did so against a rich

background of legislative and enforcement experience.

This background is evidenced in the complete absence of

controversy during Congressional consideration of the

ADA, and the swift passage of the legislation. See House

Report No. 94-67 at 16, March 14, 1975 (“Committee

drafted this section to draw on the experience this natin

[sic] has had in combatting [sic] . . . other prejudices”).

See also National Alliance et al. v. Bowen, 789 F. 2d 931, 934

(5th Cir. 1986) (ADA) modeled on Title VI.)

App. 67

Conclusion

The inescapable conclusion is that Congress intended

that title VI as well as its progeny — Title IX, Section 504,

and the ADA - be given the broadest interpretation. All

four statutes were passed to assist in the Struggle to

eliminate discrimination from our society by ending fed-

eral subsidies of such discrimination. Congress under-

stood that these goals could be achieved if the Federal

government used its power and authority to end discrim-

ination.

Prior to the Grove City Decision, the Executive Branch

Asserted Authority to Enforce the Nondiscrimination Statutes

Institution-Wide

Beginning in 1964 with the enactment of Title VI and

until the Grove City decision in 1984, the Federal officials

charged with enforcing these civil rights statutes inter-

preted them to be institution-wide in their coverage.

For example, David Tatel who was Director of the

Oifice for Civil Rights of the Department of Health, Edu-

cation and Welfare, from

[page 8]

1977-1979, testified that HEW had consistently inter-

preted Title VI to require institution-wide coverage.

This broad interpretation was grounded on the

language of the statute, its legislative history,

and the well-accepted constitutional principle

that all levels of government must steer clear of

providing public revenues to institution which

discriminate on the basis of race or national

origin.

App. 68

Testimony of David Tatel, Joint Hearings on H.R. 700,

Page 1177; Id. at 1189. (1985); Testimony of David Tatel,

Hearing on S. 557 transcript 143, (1987); Testimony of

David Tatel, Hearings on S. 2568, p. 162-177.

Another former administration official, Dan Marcus,

who served with the Department of Health, Education

and Welfare from 1977 to 1980, endorsed Mr. Tatel’s

assessment of prior administration practice. Testimony of

Dan Marcus, Esq, Joint Hearings on H.R. 700, page 1189

(1985).

A former general counsel to HEW, Peter Libassi, also

supported this view of the breadth of the civil rights

statutes. Mr. Libassi, who was general counsel of HEW

from 1977-1979 and Director of OCR at HEW from

1966-1968 testified in 1984 that HEW official did recog-

nize that there might be “interpretations of Title VI

restricting its impact to the particular activity receiving

federal funds. That narrow construction was rejected. It

was rejected on the basis of our understanding of the

realities of legislative enforcement.” Joint Hearings on

H.R. 5490, p. 64, May 9, 1984.

Cynthia Brown, former Assistant Secretary for Civil

Rights of the Department of Education from 1980 to 1981,

Deputy Director of the office for Civil Rights in HEW, and

an employee of HEW’s Office of Civil Rights from

1966-1970, gave similar testimony.

Every administration charged with enforc-

ing Title IX, as well as title VI. . . has interpreted

coverage of these antidiscrimination laws in the

same broad manner.

App. 69

Testimony of Cynthia Brown, Hearings on S. 2568, p. 376,

June 5, 1984.

Mary Berry, currently a member of the Civil Rights

Commission, a former Assistant Secretary for Education,

former chancellor at the University Colorado, and former

director of the Higher Education Division in the Office of

Civil Rights-HEW, also testified that previous administra-

tions interpreted these laws broadly. Testimony of Mary

Berry, Joint Hearings on H.R. 5490, at 93-95 May 9, 1984.

She said that post-Grove City, administration officials

have encountered serious difficulty complying with the

“program specific” enforcement mandate because avail-

able data system did not permit the tracing of federal

funds. This is so, Commissioner Berry said, because exis-

ting data systems did not include program specific infor-

mation.

The . . . Federal Assistance Award Data System,

set up in 1983, as a central source for data...

doesn’t tell you exactly where on campus or in

an institution the money goes.

It just tells you that the place gets money.

And the reasons why that is the case is that

because before Grove Citv

[page 9]

nobody had to identify exactly where the money

was before you could engage in investigation.

Since Grove City . . . under Title IX, 23 education

complaints involving large institutions have

been closed by the Department because of a

question of whether the activities were in some

program that was funded directly by the Federal

App. 70

Government. These were cases that earlier were

proceeding without any trouble. Id. at 94.

Former Justice Department officials under both

Republican and Democratic Administrations supported

the views of officials of other agencies on the breadth of

the statutes. Stanley Pottinger and Drew Days, former

assistant Attorneys General for Civil Rights, in the Ford

and Carter administrations respectively, testified that the

Department of Justice gave a broad interpretation to Title

VI, Section 504, and Title IX. Mr. Pottinger said that -

[t]here was no requirement to make a prior

finding that the alleged discrimination occurred

in a program or activity receiving federal funds

and indeed the Department would not have

been able to do that. Joint Hearings on H.R.

5490, at 256.

Congress should now make clear . . . what

we all thought has been made clear in 1964,

again in 1972, again in 1973, and through subse-

quent years by the consistent administrative and

law enforcement practice. Joint Hearings on

H.R. 5490, at 258, May 1984.

Mr. Days was equally strong in his recollection of

administration practice. Joint Hearings at 258-261. In his

view, the “overall objective . . . [of these statutes] ... was

to make certain, in the areas of Federal funding, that

taxpayer’s dollars were not used to initiate or perpetu-

ate ... bias and prejudice ... ” Joint Hearings at 258.

According to Mr. Days, a -

narrow reading of the law denigrates the his-

toric work of . . . [Representative Emmanuel]

Celler and . . . [Senator Hubert] Humphrey,

App. 71

whose vision in promoting the passage of Title

VI pointed the way for later leaders in the Con-

8ress to address forcefully the shameful treat-

ment of women, the handicapped, and the aged

by recipients of Federal money.

In 1975 Caspar Weinberger, then Secretary of HEW, told

Congress that coverage of Title IX was exceedingly broad

and that this broad coverage was reflected in the Title IX

regulations promulgated during his tenure . . . Secretary

Weinberger said -

The final regulation applies to all aspects of

all educational programs or activities of a school

district, institution of higher education, or other

entity which receives Federal Funds for any of

those programs. If Congress wished to excluded

[sic] athletics, for example, as so many people

seem to wish, Congress could have easily have

said so. However Congress .. . made [sic] very

clear athletics should be covered by the regula-

tion . . . Sex Ciscrimination regulations,

[page 10]

hearings Before the Subcommittee on Post Sec-

ondary Education of the Committee on Educa-

tion and Labor, House of Representatives, June

26, 1975, page 438.

These views are corroborated by evidence that the

Department of Education conducted institution and Sys-

tem wide compliance reviews prior to the Grove City

decision. Hearings on S. 557, prepared testimony of

Elaine Jones, Exhibits A-1 and A-2, and prepared testi-

mony of Elaine Jones, transcript page 6, April 1, 1987.

App. 72

Thus, the evidence is overwhelming that the institu-

tion wide coverage that Congress intended was under-

stood and implemented by previous administrations.

Judicial Decisions Prior to Grove City Endorsed Broad Cover-

age of the Civil Rights Statutes

With few exceptions, courts consistently interpreted

the nondiscrimination statutes broadly prior to the North

Haven! and Grove City decisions. This pattern was espe-

cially strong in the enforcement of Title VI. Court deci-

sions rarely addressed the issue explicitly, but the facts

left no doubt that courts assumed and endorsed institu-

tion-wide coverage. See e.g. Board of Public Instruction of

Taylor Co. v. Finch, 414 F. 2d 1068 (5th Cir. 1969) (assumes

institution-wide coverage and that pinpointing limited to

fund termination); United States v. Jefferson Co. Board of

Education, 372 F. 2d 836 (5th Cir. 1966), aff’d en banc, 380

F. 2d 385, cert. denied sub nom Caddo Parish Board of Educa-

tion v. United States, 389 U.S., 840 (1967) (Title VI institu-

tion wide desegregation order appropriate); Bossier Parish

School Board v. Lemon, 370 F. 2d 847, 852) (5th Cir.), cert.

denied, 388 U.S. 911 (1967) (systemwide application of

Title VI) institution-wide desegregation order) Yakin v.

University of Illinois, 508 F. Supp. 848 (N.D. Ill. 1981)

(federal financial assistance to university triggers depart-

ment coverage) United States v. El Camino Community

1 In North Haven Board of Education v. Bell, 456 U.S. 511

(1982), the Supreme Court’s holding was that Title IX prohibited

sex discrimination in employment in educational institutions. In

dicta, however, the Court suggested that Title IX should be

viewed as “program specific” in its coverage as well as its fund

termination provisions. This dicta paved the way for Grove City.

App. 73

College District, 454 F. Supp. 825 (C.D. Cal. 1978). aff'd,

600 F. 2d 1258 (9th Cir. 1979), cert. denied, 444 U.S. 1013

(1980) (Title VI investigation of entire College appropri-

ate); Bob Jones University v. Johnson, 396 F Supp. 597 (D.

S.C. 1974) (Veterans Administration education grants aid

to whole university) Flanagan v. President & Directors of

Georgetown Coll, 417 F. Supp 377 (D.D.Cc. 1976) (financial

aid activities cOvered); ...

Courts also assumed that institutional wide coverage

was appropriate under Title IX. See e.g. Haffer v. Univer-

sily, 524 F. Supp 531 (E.D. Pa 1981), affirmed 688 F 2d 14

(3rd Cir. 1982) (athletic program which did not receive

earmarked funds covered), but see Rice v. President and

Fellows of Harvard College, 663 F. 2d 336 (1st Cir. 1981).

Two courts of appeals read Section 504 narrowly, Brown vy.

Sibley, 659 F. 2d 760 (Sth Cir. 1980); Simpson v. Reynolds

Metals Co., 629 F. 2d 1226 (7th Cir. 1980) but other deci-

sions read the statute broadly. Wolff v. South Colonie School

District, 534 F. Supp. 758 (N.D. N.Y. 1982) (schools [sic]

trips covered) .. .

[page 11]

Judicial recognition of institution wide coverage

waned only after the Supreme Court opinion in North

Haven. See e.g. Dougherty County School System v. Bell, 694

F. 2d 78 (5th Cir. 1982) (follows North Haven dicta that

Title IX requires Program specific interpretation). Prior to

North Haven the weight of authority was clearly on the

side of institution wide coverage of the civil rights stat-

utes.

App. 74

The Civil Rights Restoration Act of 1987 is urgently needed

The impact of the Supreme Court decision was imme-

diate. On March 8, 1984 — a little over a week after the

Grove City College decision — the Department of Education

dropped sex discrimination charges against the Univer-

sity of Maryland’s intercollegiate athletics program

because the athletics program did not receive direct fed-

eral funding. The Department’s Office for Civil Rights -

which enforces Title VI, Title IX, Section 504 and the Age

Discrimination Act as they apply to education — had

uncovered discrimination in several areas, including

travel and per diem allowance, the provision of support

services, and the accommodation of student interests and

abilities. Yet, female athletes and coaches at the Univer-

sity of Maryland and other universities no longer had

federal protection against this discrimination.

The University of Maryland case was just the begin-

ning. In the wake of the Grove City College decision, at

least 674 complaints filed under the four civil rights

statutes in the Department of Education have been

closed, in whole or in part or suspended. At least 156

Department-initiated compliance reviews also have been

dropped or narrowed. (Letter from Alicia Coro, Acting

Assistant Secretary for Civil Rights, Department of Edu-

cation to Chairman Kennedy, March 31. 1987).

In addition, other cases that were in the formal

enforcement stage still are in jeopardy. These are cases

where discrimination has been found, voluntary compli-

ance was refused, and recipients are using the Supreme

Court’s decision as a defense against federal enforcement.

—e

App. 75

The decision has created absurd results in many

instances. Complaints are not investigated because the

alleged discrimination took place in a building not con-

structed or renovated with federal assistance. When com-

plaints are investigated, the whole process takes longer

because the federal government has to search for federal

money connected with a specific program. The paper-

work for institutions has increased as they are asked to

show precisely where the current federal dollars are, and

in some instances where past federal assistance went (as

in the case of buildings or equipment).

Clear violations of federal law go uncorrected while

students lose valuable educational benefits that can rarely

be recovered and employees lose jobs or job oppor-

tunities. Prolonged debate takes place over what consti-

tutes a “program or activity” under the civil rights law,

while the universities, schools, and correctional facilities

receive millions of federal dollars.

A few examples from a recent report, Federal Funding

of Discrimination: The Impact of Grove City College v. Bell,

issued in 1987 by the National Womens’ Law Center,

illustrates the civil

[page 12]

rights enforcement problems in the aftermath of the Grove

City College decision:

A Black high school student in the Haddon

Heights School District, filed a complaint alleg-

ing that her school’s chapter of the National

Ho.or Society had failed to induct her because

of her race. In spite of being ranked fifth in her

class and participating in a wide variety of

App. 76

extracurricular activities, she was not among the

sixteen students invited to join the Society. OCR

closed the case because it found the alleged

discrimination did not occur in a program or

activity which was a direct recipient of federal

financial assistance from the Department of

Education.

A first year medical student at the Univer-

sity of California at Davis alleged that she had

been sexually harassed by a professor who

made explicit sexual remarks to her, offered to

give her better grades in exchange for sexual

favors, and finally threatened to use his alli-

ances with other professors to manipulate her

grades. Although the medical school received

federal funding through the Department of Edu-

cation, no money was earmarked for the educa-

tional program for first year students or the

Department of Surgery in which the professor

taught. OCR closed the case in January 1986

because it decided the Grove City “program or

activity” requirement could not be satisfied.

Other cases are summarized in a 1986 report of private

civil rights organizations, Injustice Under Law:

A student at Hill Top Beauty School in Daly

City, California complained to OCR that clients

were more often assigned to white students than

Black students, that Black students were

assigned to Black clients and that clean up

duties not properly the responsibility of stu-

dents were given to Black students. Many stu-

dents attend Hill Top with the help of federal

assistance such as Pell Grants.

App. 77

But OCR decided it could not investigate

the complaint because the alleged discrimina-

tion occurred in the Practical Training part of

the cosmetology course which did not receive

direct federal funds. The case was closed. Now

there will never be any investigation of the truth

or falsity of the charges of discrimination. OCR

#09-83-4004.

A Northeastern University (Boston, Massa-

chusetts) student filed a Title IX complaint. She

said the university failed to take action to

redress a sexual harassment complaint and had

no grievance procedure as required by Title IX.

Prior to the Grove City College decision, OCR

only had to determine that the university

received federal funds. Now OCR must find

whether federal funds to the Program in

which discrimination is c.larged. In this case it

was the Economics Department located in Lake

Hall. And the University had received

$2,216,000 under the College Housing Loan Pro-

gram to renovate student housing, as well as

$9.9 million in student aid for 1983-84.

[page 13]

But OCR decided that it could not investi-

gate the complaint because Lake Hall, where the

alleged discrimination occurred, was not built

or renovated with federal loans. Ironically, if the

alleged sexual harassment had occurred in stu-

dent dorms which were rencvated with federal

loans, the complaint would have been investi-

gated. This case is on “policy hold” at the Edu-

cation Department. OCR #01-84-2020.

A maintenance worker at the University of

Charleston in West Virginia complained to OCR

that he had been the victim of discrimination in

App. 78

employment because he was disabled. The Uni-

versity’s lawyers told OCR that it received no

federal funds for maintenance and therefore

OCR had no authority to investigate. Since 1979

the University of Charleston has received

approximately $3,376,182 in federal funds from

the Department of Education, including

$472,194 in federal student aid in the 1983-84

school year.

But OCR put this complaint on “policy

hold” because it could not link the allegation of

discrimination to a specific, federally funded

program. Section 504 is the only federal law

protecting disabled persons from employment

discrimination based on their handicap. Without

an OCR investigation, this disabled employee

has no other recourse under federal law. OCR

#03-84-2040.

In an administrative proceeding against Mecklenburg

County Public Schools, Virginia, the school district's

motion to dismiss the proceedings was granted by an

administrative law judge because the district’s federal

funds were not earmarked to the specific program where

discrimination was alleged. The case was dismissed

although OCR had determined that the school system

used grouping policies and procedures which resulted in

racially identifiable classes without educational justifica-

tion; employed a curricular tracking system which

resulted in racially identifiable tracks; employed policies

and procedures which did not permit movement between

those tracks from middle school to high school. As a

result OCR found minority students were locked into

segregated classes that denied them educational oppor-

tunity. But because of Grove City’s limited view of the

App. 79

law, Title VI did not provide a remedy for the students.

The case is under review.

In Pickens County, South Carolina. junior and senior

high school students may choose between co-educational

or same-sex physical education classes. However, if too

few students sign up for the same sex classes, students

who chose co-ed classes are assigned to sex segregated

Physical Education classes. The Office for Civil Rights

found that this practice discriminated against boys and

girls, in violation of Title IX (sex discrimination). The

school district claimed that OCR did not have jurisdiction

because none of the $2 million in federal funds received

by the school district were used for physical education.

An Administrative Law Judge and the Civil Rights

Reviewing Authority agreed with the school district, and

OCR did not appeal the decision. The case is closed and

the

[page 14]

district continues to operate its physical education pro-

gram ina discriminatory manner.

During the hearings on S. 557, the committee heard

the testimony of Mr. Jerry Kicklighter of Bellville, Geor-

gia, who has epilepsy, and gave the following account:

In the summer of 1974 I was hired by

DeKalb Community College to be an adjunct

instructor. A few months later, in September

1974, I was hired as a full instructor in botany-

biology. I worked full time until 1977. I enjoyed

my job and consistently received positive per-

formance evaluations. In April 1977, I discov-

ered that my contract was not going to be

renewed.

App. 80

I requested that the College give me a hear-

ing and was refused. The college never put any-

thing in writing as to why I was terminated -

the law did not require that because I wasn’t

tenured yet.

I found out, in an off-the-record conversa-

tion with the Chairman of my department that I

was terminated because of my epilepsy. Mr.

Chairman, at worst, I had only two seizure a

week — lasting a total of 40 seconds each, maxi-

mum. They were like daydreaming for a minute

- I always went right back to my work with no

problem, after one of these episodes. The Col-

lege even had a letter from my doctor stating

that even these small petit mal seizures were

being treated and that they in no way posed any

hazard to my students.

I lost my job because of 80 seconds a week.

I thought this was wrong. I talked to an

attorney who told me that the government fol-

lowed laws and regulations that insured equal

opportunity for all citizens. He told me that I

shouldn’t file a formal lawsuit because I was

covered by those laws. So I went to the EEOC

officer at the college who recommended that I

file both a complaint with the Office of Civil

Rights at the Department of Education and with

the Office of Federal Contract Compliance at the

Department of Labor. I did exactly what they

instructed me to do.

Seven years later, on May 24, 1984, OCR

sent me a letter stating that, because of the Grove

City decision, they didn’t have jurisdiction to

pursue my case. The government had estab-

lished that DeKalb Community College received

over a quarter of a million dollars in federal

App. 81

funds for the 1976-77 school year, but they

couldn’t trace the funds directly to my job, as

the Grove City decision required.

In addition to these cutbacks in administrative

enforcement, the lower federal courts have also begun to

incorporate Grove City’s restrictive interpretation of “pro-

Stam or activity” into Section 504 cases as well as Title IX,

litle

This text is long and has been trimmed here. Open the source document for the complete record.

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.