Section 901(a) of Title IX of the Education Amendments of 1972
prohibits sex discrimination in "any education program or activity
receiving Federal financial assistance," and § 902 provides that a
recipient's compliance with regulations of a federal agency
awarding assistance may be secured by termination of assistance "to
the particular program, or part thereof, in which . . .
noncompliance has been . . . found." Under the statute, a federally
assisted program must be identified before Title IX coverage is
triggered. Petitioner Grove City College (College), a private,
coeducational, liberal arts college, accepts no direct federal
assistance, nor does it participate in the Regular Disbursement
System (RDS) of the Department of Education (Department), whereby
amounts for federal grants to students are advanced to the
institution, which then itself selects eligible students and
calculates and distributes the grants. However, the College enrolls
students who receive direct federal Basic Educational Opportunity
Grants (BEOG's) under the Department's Alternative Disbursement
System (ADS). The Department concluded that, under applicable
regulations, the College was a "recipient" of "Federal financial
assistance," and when the College refused to execute an Assurance
of Compliance with Title IX's nondiscrimination provisions, as
required by the regulations, the Department initiated
administrative proceedings, which resulted in an order terminating
assistance until the College executed an Assurance of Compliance
and satisfied the Department that it was in compliance with the
regulations. The College and four of its students then filed suit
in Federal District Court, which held that the students' BEOG's
constituted "Federal financial assistance" to the College, but that
the Department could not terminate the students' aid because of the
College's refusal to execute an Assurance of Compliance. The Court
of Appeals reversed, holding that the Department could terminate
the students' BEOG's to force the College to execute an Assurance
of Compliance.
Held:
1. Title IX coverage is triggered because some of the College's
students receive BEOG's to pay for their education. In view of the
structure of the Education Amendments of 1972, the clear statutory
language,
Page 465 U. S. 556
the legislative history (including postenactment history)
showing Congress' awareness that the student assistant programs
established by the Amendments significantly aided colleges and
universities, and the longstanding administrative construction of
the phrase "receiving Federal financial assistance" as including
assistance to a student who uses it at a particular institution,
Title IX coverage is not foreclosed merely because federal funds
are granted to the students, rather than to the College's
educational programs. Pp.
465 U. S.
563-570.
2. However, the receipt of BEOG's by some of the College's
students does not trigger institution-wide coverage under Title IX.
In purpose and effect, BEOG's represent financial assistance to the
College's own financial aid program, and it is that program that
may properly be regulated under Title IX's nondiscrimination
provision. Under the program-specific limitations of §§ 901 and
902, the College's choice of participating in the ADS, rather than
the RDS, mechanism for administering the BEOG program neither
expands nor contracts the breadth of the "program or activity
receiving Federal financial assistance." The fact that federal
funds eventually reach the College's general operating budget
cannot subject it to institution-wide coverage. Pp.
465 U. S.
570-574.
3. A refusal to execute a proper program-specific Assurance of
Compliance warrants the Department's termination of federal
assistance to the student financial aid program. The College's
contention that termination must be preceded by a finding of actual
discrimination is not supported by § 902's language. Pp.
465 U. S.
574-575.
4. Requiring the College to comply with Title IX's prohibition
of discrimination as a condition for its continued eligibility to
participate in the BEOG program infringes no First Amendment rights
of the College or its students. Pp.
465 U. S.
575-576.
687 F.2d 684, affirmed.
WHITE, J., delivered the opinion of the Court, in which BURGER,
C.J., and BLACKMUN, POWELL, REHNQUIST, and O'CONNOR, JJ., joined,
and in all but Part III of which BRENNAN, MARSHALL, and STEVENS,
JJ., joined. POWELL, J., filed a concurring opinion, in which
BURGER, C.J., and O'CONNOR, J., joined,
post, p.
465 U. S. 576.
STEVENS, J., filed an opinion concurring in part and concurring in
the result,
post, p.
465 U. S. 579.
BRENNAN, J., filed an opinion concurring in part and dissenting in
part, in which MARSHALL, J., joined,
post, p.
465 U. S.
581.
Page 465 U. S. 557
JUSTICE WHITE delivered the opinion of the Court.
Section 901(a) of Title IX of the Education Amendments of 1972,
Pub.L. 92-318, 86 Stat. 373, 20 U.S.C. § 1681(a), prohibits sex
discrimination in "any education program or activity receiving
Federal financial assistance," [
Footnote 1] and § 902 directs agencies awarding most types
of assistance to promulgate regulations to ensure that recipients
adhere to that prohibition. Compliance with departmental
regulations may be secured by termination of assistance "to the
particular program, or part thereof, in which . . . noncompliance
has
Page 465 U. S. 558
been . . . found" or by "any other means authorized by law." §
902, 20 U.S.C. § 1682. [
Footnote
2]
This case presents several questions concerning the scope and
operation of these provisions and the regulations established by
the Department of Education. We must decide, first, whether Title
IX applies at all to Grove City College, which accepts no direct
assistance but enrolls students who receive federal grants that
must be used for educational purposes. If so, we must identify the
"education program or activity" at Grove City that is "receiving
Federal financial assistance" and determine whether federal
assistance to that
Page 465 U. S. 559
program may be terminated solely because the College violates
the Department's regulations by refusing to execute an Assurance of
Compliance with Title IX. Finally, we must consider whether the
application of Title IX to Grove City infringes the First Amendment
rights of the College or its students.
I
Petitioner Grove City College is a private, coeducational,
liberal arts college that has sought to preserve its institutional
autonomy by consistently refusing state and federal financial
assistance. Grove City's desire to avoid federal oversight has led
it to decline to participate, not only in direct institutional aid
programs, but also in federal student assistance programs under
which the College would be required to assess students' eligibility
and to determine the amounts of loans, work-study funds, or grants
they should receive. [
Footnote
3] Grove City has, however, enrolled a large number of students
who receive Basic Educational Opportunity Grants (BEOG's), 20
U.S.C. § 1070a (1982 ed.), under the Department of Education's
[
Footnote 4] Alternate
Disbursement System (ADS). [
Footnote 5]
Page 465 U. S. 560
The Department concluded that Grove City was a "recipient" of
"Federal financial assistance" as those terms are defined in the
regulations implementing Title IX, 34 CFR §§ 106.2(g)(1), (h)
(1982), [
Footnote 6] and, in
July, 1977, it requested that the College execute the Assurance of
Compliance required by 34 CFR § 106.4 (1983). If Grove City had
signed the Assurance, it would have agreed to
"[c]omply, to the extent applicable to it, with Title IX . . .
and all applicable requirements imposed by or pursuant to the
Department's regulation . . . to the end that . . . no person in
the United States shall, on the basis of sex, be . . . subjected to
discrimination under any education program or activity for which
[it] receives or benefits
Page 465 U. S. 561
from Federal financial assistance from the Department."
App. to Pet. for Cert. A-12 - A-127. [
Footnote 7] When Grove City persisted in refusing to
execute an Assurance, the Department initiated proceedings to
declare the College and its students ineligible to receive BEOG's.
[
Footnote 8] The Administrative
Law Judge held that the federal financial assistance received by
Grove City obligated it to execute an Assurance of Compliance and
entered an order terminating assistance until Grove City "corrects
its noncompliance with Title IX and satisfies the Department that
it is in compliance" with the applicable regulations. App. to Pet.
for Cert. A-97.
Grove City and four of its students then commenced this action
in the District Court for the Western District of Pennsylvania,
which concluded that the students' BEOG's constituted "Federal
financial assistance" to Grove City but held, on several grounds,
that the Department could not terminate the students' aid because
of the College's refusal to execute an Assurance of Compliance.
Grove City College v. Harris, 500 F.
Supp. 253 (1980). [
Footnote
9] The Court of Appeals reversed.
Page 465 U. S. 562
687 F.2d 684 (CA3 1982). It first examined the language and
legislative history of Title IX and held that indirect, as well as
direct, aid triggered coverage under § 901(a), and that
institutions whose students financed their educations with BEOG's
were recipients of federal financial assistance within the meaning
of Title IX. Although it recognized that Title IX's provisions are
program-specific, the court likened the assistance flowing to Grove
City through its students to nonearmarked aid, and, with one judge
dissenting, declared that,
"[w]here the federal government furnishes indirect or
non-earmarked aid to an institution, it is apparent to us that the
institution itself must be the 'program.'"
687 F.2d at 700. [
Footnote
10] Finally, the Court of Appeals concluded that the Department
could condition financial aid upon the execution of an Assurance of
Compliance, and that the Department had acted properly in
terminating federal financial assistance to the students and Grove
City despite the lack of evidence of actual discrimination.
Page 465 U. S. 563
We granted certiorari, 459 U.S. 1199 (1983), and we now affirm
the Court of Appeals' judgment that the Department could terminate
BEOG's received by Grove City's students to force the College to
execute an Assurance of Compliance.
II
In defending its refusal to execute the Assurance of Compliance
required by the Department's regulations, Grove City first contends
that neither it nor any "education program or activity" of the
College receives any federal financial assistance within the
meaning of Title IX by virtue of the fact that some of its students
receive BEOG's and use them to pay for their education. We
disagree.
Grove City provides a well-rounded liberal arts education and a
variety of educational programs and student services. The question
is whether any of those programs or activities "receiv[es] Federal
financial assistance" within the meaning of Title IX when students
finance their education with BEOG's. The structure of the Education
Amendments of 1972, in which Congress both created the BEOG program
and imposed Title IX's nondiscrimination requirement, strongly
suggests an affirmative conclusion. BEOG's were aptly characterized
as a "centerpiece of the bill," 118 Cong.Rec. 20297 (1972) (Rep.
Pucinski), and Title IX "relate[d] directly to [its] central
purpose." 117 Cong.Rec. 30412 (1971) (Sen. Bayh). In view of this
connection and Congress' express recognition of discrimination in
the administration of student financial aid programs, [
Footnote 11] it would indeed be
anomalous to discover that one of the primary components of
Congress' comprehensive "package of federal aid,"
id. at
2007 (Sen. Pell), was not intended to trigger coverage under Title
IX.
Page 465 U. S. 564
It is not surprising to find, therefore, that the language of §
901(a) contains no hint that Congress perceived a substantive
difference between direct institutional assistance and aid received
by a school through its students. The linchpin of Grove City's
argument that none of its programs receives any federal assistance
is a perceived distinction between direct and indirect aid, a
distinction that finds no support in the text of § 901(a).
[
Footnote 12] Nothing in §
901(a) suggests that Congress elevated form over substance by
making the application of the nondiscrimination principle dependent
on the manner in which a program or activity receives federal
assistance. There is no basis in the statute for the view that only
institutions that themselves apply for federal aid or receive
checks directly from the Federal Government are subject to
regulation.
Cf. Bob Jones University v.
Johnson, 396 F.
Supp. 597, 601-604 (SC 1974),
affirmance order, 529
F.2d 514 (CA4 1975). As the Court of Appeals observed, "by its all
inclusive terminology, [§ 901(a)] appears to encompass
all
forms of federal aid to education, direct or indirect." 687 F.2d at
691 (emphasis in original). We have recognized the need to
"
accord [Title IX] a sweep as broad as its language,'"
North Haven Board of Education v. Bell, 456 U.
S. 512, 456 U. S. 521
(1982) (quoting United States v. Price, 383 U.
S. 787, 383 U. S. 801
(1966)), and we are reluctant to read into § 901(a) a limitation
not apparent on its face.
Page 465 U. S. 565
Our reluctance grows when we pause to consider the available
evidence of Congress' intent. The economic effect of direct and
indirect assistance often is indistinguishable,
see Mueller v.
Allen, 463 U. S. 388,
463 U. S. 397,
n. 6 (1983);
id. at
463 U. S. 412
(MARSHALL, J., dissenting);
Committee for Public Education v.
Nyquist, 413 U. S. 756,
413 U. S. 783
(1973);
Norwood v. Harrison, 413 U.
S. 455,
413 U. S.
463-465 (1973), and the BEOG program was structured to
ensure that it effectively supplements the College's own financial
aid program. [
Footnote 13]
Congress undoubtedly comprehended this reality in enacting the
Education Amendments of 1972. The legislative history of the
Amendments is replete with statements evincing Congress' awareness
that the student assistance programs established by the
Page 465 U. S. 566
Amendments would significantly aid colleges and universities.
[
Footnote 14] In fact, one
of the stated purposes of the student aid provisions was to
"provid[e] assistance to institutions of higher education." Pub.L.
92-318, § 1001(c)(1), 86 Stat. 381, 20 U.S.C. § 1070(a)(5).
Congress' awareness of the purpose and effect of its student aid
programs also is reflected in the sparse legislative history of
Title IX itself. Title IX was patterned after Title VI of the Civil
Rights Act of 1964, Pub.L. 88-352, 78 Stat. 252, 42 U.S.C. § 2000d
et seq. (1976 ed. and Supp. V).
Cannon v. University
of Chicago, 441 U. S. 677,
441 U. S.
684-685 (1979); 118 Cong.Rec. 5807 (1972) (Sen. Bayh).
The drafters of Title VI envisioned that the receipt of student aid
funds would trigger coverage, [
Footnote 15] and, since they approved identical language,
we discern no reason to believe that the Congressmen who voted for
Title IX intended a different result.
The few contemporaneous statements that attempted to give
content to the phrase "receiving Federal financial assistance,"
while admittedly somewhat ambiguous, are consistent with Senator
Bayh's declaration that Title IX authorizes the
Page 465 U. S. 567
termination of "all aid that comes through the Department of
Health, Education, and Welfare." 117 Cong.Rec. 30408 (1971).
[
Footnote 16] Such
statements by individual legislators should not be given
controlling effect, but, at least in instances where they are
consistent with the plain language of Title IX, Senator Bayh's
remarks are "an authoritative guide to the statute's construction."
North Haven Board of Education v. Bell, 456 U.S. at
456 U. S. 527.
The contemporaneous legislative history, in short, provides no
basis for believing that Title IX's broad language is somehow
inconsistent with Congress' underlying intent.
See also 20
U.S.C. § 1094(a)(3) (1982 ed.).
Persuasive evidence of Congress' intent concerning 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
456 U. S. 535;
Cannon v. University of Chicago, supra, at
441 U. S. 687,
n. 7,
441 U. S.
702-703, and we
Page 465 U. S. 568
do so once again. The Department's sex discrimination
regulations made clear that "[s]cholarships, loans, [and] grants .
. . extended directly to . . . students for payment to" an
institution 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. § 1232(d)(1) (1982 ed.),
Congress was afforded an opportunity to invalidate aspects of the
regulations it deemed inconsistent with Title IX. [
Footnote 17] The regulations were clear,
and Secretary Weinberger left no doubt concerning the Department's
position that "the furnishing of student assistance to a student
who uses it at a particular institution . . . [is] Federal aid
which is covered by the statute." [
Footnote 18] Yet neither House passed a disapproval
resolution. Congress' failure to disapprove the regulations is not
dispositive, but, as we recognized in
North Haven Board of
Education v. Bell, supra, at
456 U. S.
533-534, it strongly implies that the regulations
accurately reflect congressional intent. Congress has never
disavowed this implication, and in fact has acted consistently with
it on a number of occasions. [
Footnote 19]
Page 465 U. S. 569
With the benefit of clear statutory language, powerful evidence
of Congress' intent, and a longstanding and coherent administrative
construction of the phrase "receiving Federal financial
assistance," we have little trouble concluding that Title IX
coverage is not foreclosed because federal funds are
Page 465 U. S. 570
granted to Grove City's students, rather than directly to one of
the College's educational programs. There remains the question,
however, of identifying the "education program or activity" of the
College that can properly be characterized as "receiving" federal
assistance through grants to some of the students attending the
College. [
Footnote 20]
III
An analysis of Title IX's language and legislative history led
us to conclude in
North Haven Board of Education v. Bell,
456 U.S. at
456 U. S. 538,
that "an agency's authority under Title IX both to promulgate
regulations and to terminate funds is subject to the
program-specific limitations of §§ 901 and 902." Although the
legislative history contains isolated suggestions that entire
institutions are subject to the nondiscrimination
Page 465 U. S. 571
provision whenever one of their programs receives federal
assistance,
see 1975 Hearings 178 (Sen. Bayh), we cannot
accept the Court of Appeals' conclusion that, in the circumstances
present here, Grove City itself is a "program or activity" that may
be regulated in its entirety. Nevertheless, we find no merit in
Grove City's contention that a decision treating BEOG's as "Federal
financial assistance" cannot be reconciled with Title IX's
program-specific language, since BEOG's are not tied to any
specific "education program or activity."
If Grove City participated in the BEOG program through the RDS,
we would have no doubt that the "education program or activity
receiving Federal financial assistance" would not be the entire
College; rather, it would be its student financial aid program.
[
Footnote 21] RDS
institutions receive federal funds directly, but can use them only
to subsidize or expand their financial aid programs and to recruit
students who might otherwise be unable to enroll. In short, the
assistance is earmarked for the recipient's financial aid program.
Only by ignoring Title IX's program-specific language could we
conclude that funds received under the RDS, awarded to eligible
students, and paid back to the school when tuition comes due
represent federal aid to the entire institution.
We see no reason to reach a different conclusion merely because
Grove City has elected to participate in the ADS. Although Grove
City does not itself disburse students' awards, BEOG's clearly
augment the resources that the College itself
Page 465 U. S. 572
devotes to financial aid. As is true of the RDS, however, the
fact that federal funds eventually reach the College's general
operating budget cannot subject Grove City to institution-wide
coverage. Grove City's choice of administrative mechanisms, we
hold, neither expands nor contracts the breadth of the "program or
activity" -- the financial aid program -- that receives federal
assistance and that may be regulated under Title IX.
To the extent that the Court of Appeals' holding that BEOG's
received by Grove City's students constitute aid to the entire
institution rests on the possibility that federal funds received by
one program or activity free up the College's own resources for use
elsewhere, the Court of Appeals' reasoning is doubly flawed. First,
there is no evidence that the federal aid received by Grove City's
students results in the diversion of funds from the College's own
financial aid program to other areas within the institution.
[
Footnote 22] Second, and
more important, the Court of Appeals' assumption that Title IX
applies to programs receiving a larger share of a school's own
limited resources as a result of federal assistance earmarked for
use elsewhere within the institution is inconsistent with the
program-specific nature of the statute. Most federal educational
assistance has economic ripple effects throughout the aided
institution, and it would be difficult, if not impossible, to
determine which programs or activities derive such indirect
benefits. Under the Court of Appeals'
Page 465 U. S. 573
theory, an entire school would be subject to Title IX merely
because one of its students received a small BEOG or because one of
its departments received an earmarked federal grant. This result
cannot be squared with Congress' intent.
The Court of Appeals' analogy between student financial aid
received by an educational institution and nonearmarked direct
grants provides a more plausible justification for its holding, but
it too is faulty. Student financial aid programs, we believe, are
sui generis. In neither purpose nor effect can BEOG's be
fairly characterized as unrestricted grants that institutions may
use for whatever purpose they desire. The BEOG program was
designed, not merely to increase the total resources available to
educational institutions, but to enable them to offer their
services to students who had previously been unable to afford
higher education. It is true, of course, that substantial portions
of the BEOG's received by Grove City's students ultimately find
their way into the College's general operating budget, and are used
to provide a variety of services to the students through whom the
funds pass. However, we have found no persuasive evidence
suggesting that Congress intended that the Department's regulatory
authority follow federally aided students from classroom to
classroom, building to building, or activity to activity. In
addition, as Congress recognized in considering the Education
Amendments of 1972, the economic effect of student aid is far
different from the effect of nonearmarked grants to institutions
themselves, since the former, unlike the latter, increases both an
institution's resources and its obligations.
See Pub.L.
92-318, § 1001(a), 86 Stat. 375, 20 U.S.C. § 1070e; S.Rep. No.
92-346, p. 43 (1971); 118 Cong.Rec. 20331 (1972) (Rep. Badillo). In
that sense, student financial aid more closely resembles many
earmarked grants.
We conclude that the receipt of BEOG's by some of Grove City's
students does not trigger institution-wide coverage under Title IX.
In purpose and effect, BEOG's represent
Page 465 U. S. 574
federal financial assistance to the College's own financial aid
program, and it is that program that may properly be regulated
under Title IX.
IV
Since Grove City operates an "education program or activity
receiving Federal financial assistance," the Department may
properly demand that the College execute an Assurance of Compliance
with Title IX. 34 CFR § 106.4 (1983). Grove City contends, however,
that the Assurance it was requested to sign was invalid, both on
its face and as interpreted by the Department, in that it failed to
comport with Title IX's program-specific character. Whatever merit
that objection might have had at the time, it is not now a valid
basis for refusing to execute an Assurance of Compliance.
The Assurance of Compliance regulation itself does not, on its
face, impose institution-wide obligations. Recipients must provide
assurance only that "each education program or activity operated by
. . . [them]
and to which this part applies will be
operated in compliance with this part." 34 CFR § 106.4 (1983)
(emphasis added). The regulations apply, by their terms,
"to every recipient and to each education program or activity
operated by such recipient which receives or benefits from Federal
financial assistance."
34 CFR § 106.11 (1983) (emphasis added). These regulations, like
those at issue in
North Haven Board of Education v. Bell,
456 U. S. 512
(1982), "conform with the limitations Congress enacted in §§ 901
and 902."
Id. at
456 U. S. 539.
Nor does the Department now claim that its regulations reach beyond
the College's student aid program. Furthermore, the Assurance of
Compliance currently in use, like the one Grove City refused to
execute, does not, on its face, purport to reach the entire
College; it certifies compliance with respect to those "education
programs and activities receiving Federal financial assistance."
See n 2,
supra. Under this opinion, consistent with the
program-specific requirements of Title IX,
Page 465 U. S. 575
the covered education program is the College's financial aid
program.
A refusal to execute a proper program-specific Assurance of
Compliance warrants termination of federal assistance to the
student financial aid program. The College's contention that
termination must be preceded by a finding of actual discrimination
finds no support in the language of § 902, which plainly authorizes
that sanction to effect "[c]ompliance with any requirement adopted
pursuant to this section." Regulations authorizing termination of
assistance for refusal to execute an Assurance of Compliance with
Title VI had been promulgated, 45 CFR § 80.4 (Supp., Jan. 1, 1965),
and upheld,
Gardner v. Alabama, 385 F.2d 804 (CA5 1967),
cert. denied, 389 U.S. 1046 (1968), long before Title IX
was enacted, and Congress no doubt anticipated that similar
regulations would be developed to implement Title IX. 118 Cong.Rec.
5807 (1972) (Sen. Bayh). We conclude, therefore, that the
Department may properly condition federal financial assistance on
the recipient's assurance that it will conduct the aided program or
activity in accordance with Title IX and the applicable
regulations.
V
Grove City's final challenge to the Court of Appeals' decision
-- that conditioning federal assistance on compliance with Title IX
infringes First Amendment rights of the College and its students --
warrants only brief consideration. Congress is free to attach
reasonable and unambiguous conditions to federal financial
assistance that educational institutions are not obligated to
accept.
E.g., Pennhurst State School and Hospital v.
Halderman, 451 U. S. 1,
451 U. S. 17
(1981). Grove City may terminate its participation in the BEOG
program, and thus avoid the requirements of § 901(a). Students
affected by the Department's action may either take their BEOG's
elsewhere or attend Grove City without federal financial
assistance. Requiring Grove City to comply with Title IX's
Page 465 U. S. 576
prohibition of discrimination as a condition for its continued
eligibility to participate in the BEOG program infringes no First
Amendment rights of the College or its students.
Accordingly, the judgment of the Court of Appeals is
Affirmed.
[
Footnote 1]
Section 901(a), 20 U.S.C. § 1681(a), provides, in pertinent
part:
"No person in the United States shall, on the basis of sex, be
excluded from participation in, be denied the benefits of, or be
subjected to discrimination under any education program or activity
receiving Federal financial assistance. . . ."
Nine statutory exemptions, none of which is relevant to the
disposition of this case, follow.
See §§ 901(a)(1)(9), 20
U.S.C. §§ 1681(a)(1)-(9).
[
Footnote 2]
Section 902, 20 U.S.C. § 1682, provides:
"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 [901] with respect to such program or
activity by issuing rules, regulations, or orders of general
applicability which shall be consistent with achievement of the
objectives of the statute authorizing the financial assistance in
connection with which the action is taken. No such rule,
regulation, or order shall become effective unless and until
approved by the President. Compliance with any requirement adopted
pursuant to this section may be effected (1) by the termination of
or refusal to grant or to continue assistance under such program or
activity to any recipient as to whom there has been an express
finding on the record, after opportunity for hearing, of a failure
to comply with such requirement, but such termination or refusal
shall be limited to the particular political entity, or part
thereof, or other recipient as to whom such a finding has been
made, and shall be limited in its effect to the particular program,
or part thereof, in which such noncompliance has been so found, or
(2) by any other means authorized by law:
Provided,
however, That no such action shall be taken until the
department or agency concerned has advised the appropriate person
or persons of the failure to comply with the requirement and has
determined that compliance cannot be secured by voluntary means. In
the case of any action terminating, or refusing to grant or
continue, assistance because of failure to comply with a
requirement imposed pursuant to this section, the head of the
Federal department or agency shall file with the committees of the
House and Senate having legislative jurisdiction over the program
or activity involved a full written report of the circumstances and
the grounds for such action. No such action shall become effective
until thirty days have elapsed after the filing of such
report."
(Emphasis in original.)
[
Footnote 3]
See, e.g., 20 U.S.C. § 1071
et seq. (1982
ed.); 34 CFR pt. 674 (1983) (National Direct Student Loans); 42
U.S.C. § 2751
et seq. (1976 ed. and Supp. V); 34 CFR pt.
675 (1983) (College Work Study Program); 20 U.S.C. § 1070b (1982
ed.); 34 CFR pt. 676 (1983) (Supplemental Educational Opportunity
Grants).
[
Footnote 4]
The Department of Health, Education, and Welfare's functions
with respect to BEOG's were transferred to the Department of
Education by § 301(a)(3) of the Department of Education
Organization Act, Pub.L. 96-88, 93 Stat. 678, 20 U.S.C. §
3441(a)(3) (1982 ed.). We will refer to both HEW and DOE as "the
Department."
[
Footnote 5]
The Secretary, in his discretion, has established two procedures
for computing and disbursing BEOG's. Under the Regular Disbursement
System (RDS), the Secretary estimates the amount that an
institution will need for grants and advances that sum to the
institution, which itself selects eligible students, calculates
awards, and distributes the grants by either crediting students'
accounts or issuing checks. 34 CFR §§ 690.71690.85 (1983). Most
institutions whose students receive BEOG's participate in the RDS,
but the ADS is an option made available by the Secretary to schools
that wish to minimize their involvement in the administration of
the BEOG program. Institutions participating in the program through
the ADS must make appropriate certifications to the Secretary, but
the Secretary calculates awards and makes disbursements directly to
eligible students. 34 CFR §§ 690.91-690.96 (1983).
[
Footnote 6]
The Title IX regulations were recodified in 1980, without
substantive change, at 34 CFR pt. 106 in connection with the
establishment of the Department of Education. 45 Fed.Reg. 30802,
30962-30963 (1980). All references herein are to the currently
effective regulations.
"Federal financial assistance" is defined in 34 CFR §
106.2(g)(1) (1983) to include:
"A grant or loan of Federal financial assistance, including
funds made available for:"
"
* * * *"
"(ii) Scholarships, loans, grants, wages or other funds extended
to any entity for payment to or on behalf of students admitted to
that entity, or extended directly to such students for payment to
that entity."
A "recipient" is defined in 34 CFR § 106.2(h) (1983) to
include:
"[A]ny public or private agency, institution, or organization,
or other entity, or any person, to whom Federal financial
assistance is extended directly or through another recipient and
which operates an education program or activity which receives or
benefits from such assistance. . . ."
See also 34 CFR §§ 106.11, 106.31(a) (1983).
[
Footnote 7]
The Assurance of Compliance form currently in use differs
somewhat from the version quoted in the text.
See App. to
Brief for Federal Respondents in
Hillsdale College v.
Department of Education, O.T. 1982, No. 82-1538, pp. 1a-2a.
The substance, however, is the same in that it refers to "education
programs and activities receiving Federal financial
assistance."
[
Footnote 8]
The Department also sought to terminate Guaranteed Student Loans
(GSL's), 20 U.S.C. § 1071 (1982 ed.), received by Grove City's
students.
[
Footnote 9]
The District Court held, first, that GSL's were "contract[s] of
insurance or guaranty" that could not be terminated under § 902 of
Title IX. The Department did not challenge this conclusion on
appeal, and we express no view on this aspect of the District
Court's reasoning. The court also concluded that Grove City could
not be required to execute an Assurance of Compliance because
Subpart E of the Title IX regulations, which prohibits
discrimination in employment, was invalid. As the Court of Appeals
recognized, we have since upheld the validity of Subpart E.
North Haven Board of Education v. Bell, 456 U.
S. 512 (1982). The District Court held, in the
alternative, that § 902 permitted termination only upon an actual
finding of sex discrimination, and that Grove City's refusal to
execute an Assurance could not justify a termination of assistance.
Finally, the court reasoned that affected students were entitled to
hearings before their aid could be discontinued.
[
Footnote 10]
In reaching this conclusion, the Court of Appeals accepted the
position argued by respondents. As respondents acknowledged in the
oral argument before this Court, the Department's position has not
been a model of clarity. Tr. of Oral Arg. 33-35. The Department
initially took the position that the receipt of student financial
aid would trigger institution-wide coverage under Title IX, and
construed its regulations to that effect. It pressed that position
in the lower courts. In their brief in opposition to the petition
for certiorari, respondents did not defend this aspect of the Court
of Appeals' opinion, but argued instead that the question need not
be resolved to decide this case. In their brief on the merits and
in the oral argument, however, respondents conceded that the Court
of Appeals erred in holding that Grove City itself constituted the
"program or activity" subject to regulation under Title IX. The
Department's regulations, it was represented, may be construed in a
program-specific manner, and hence are not inconsistent with the
statute. This concession, of course, is not binding on us, and does
not foreclose our review of the judgment below.
[
Footnote 11]
See, e.g., Discrimination Against Women: Hearings on
Section 805 of H.R. 16098 before the Special Subcommittee on
Education of the House Committee on Education and Labor, 91st
Cong., 2d Sess., 235 (1970) (Rep. May);
id. at 433 (Rep.
Mink);
id. at 739 (Rep. Griffiths); 118 Cong.Rec.
3935-3940, 5803-5809 (1972) (Sen. Bayh).
[
Footnote 12]
Grove City itself recognizes the problematic nature of the
distinction it advances. Although its interpretation of § 901(a)
logically would exclude from coverage under Title IX local school
districts that receive federal funds through state educational
agencies,
see, e.g., 20 U.S.C. § 3801
et seq.
(1982 ed.), Grove City wisely does not attempt to defend this
result. In fact, the College concedes that,
"[b]ecause federal assistance is often passed through state
agencies, this type of indirect assistance leads to Title IX
jurisdiction
over the education program or activity which
ultimately receives the assistance."
Brief for Petitioners 17, n. 17 (emphasis in original). Grove
City has proposed no principled basis for treating differently
federal assistance received through students and federal aid that
is disbursed by a state agency.
[
Footnote 13]
Grove City's students receive BEOG's to pay for the education
they receive at the College. Their eligibility for assistance is
conditioned upon continued enrollment at Grove City and on
satisfactory progress in their studies. 20 U.S.C. §§ 1091(a)(1),
(3) (1982 ed.). Their grants are based on the "cost of attendance"
at Grove City, 20 U.S.C. § 1070a(a)(2)(B)(i) (1982 ed.), which
includes the College's tuition and fees, room and board, and a
limited amount for books, supplies, and miscellaneous expenses. 34
CFR § 690.51 (1983). The amount that students and their families
can reasonably be expected to contribute is subtracted from the
maximum BEOG to ensure that the assistance is used solely for
educational expenses, 20 U.S.C. § 1070a(a)(2)(A)(i) (1982 ed.), and
students are required to file affidavits stating that their awards
will be "used solely for expenses related to attendance" at Grove
City. 20 U.S.C. § 1091(a)(5) (1982 ed.);
see 34 CFR §§
690.79, 690.94(a)(2) (1983).
Grove City's attempt to analogize BEOG's to food stamps, Social
Security benefits, welfare payments, and other forms of general
purpose governmental assistance to low-income families is
unavailing. First, there is no evidence that Congress intended the
receipt of federal money in this manner to trigger coverage under
Title IX. Second, these general assistance programs, unlike student
aid programs, were not designed to assist colleges and
universities. Third, educational institutions have no control over,
and indeed perhaps no knowledge of, whether they ultimately receive
federal funds made available to individuals under general
assistance programs, but they remain free to opt out of federal
student assistance programs. Fourth, individuals' eligibility for
general assistance is not tied to attendance at an educational
institution.
[
Footnote 14]
See, e.g., H.R.Rep. No. 92-554, p. 244 (1972)
(Supplemental Views); 117 Cong.Rec. 2007 (1971) (Sen. Pell);
id. at 37778, 37782 (Rep. Quie);
id. at 39256
(Rep. Steiger); 118 Cong.Rec. 20295 (1972) (Rep. Reid);
id. at 20297 (Rep. Pucinski);
id. at 20312
(statement of Isaac K. Beckes);
id. at 20310 (letter from
Kingman Brewster, Jr.);
id. at 20324 (Rep. Mitchell).
[
Footnote 15]
See, e.g., H.R.Rep. No. 914, 88th Cong., 1st Sess.,
104-105 (1963); 110 Cong.Rec. 13388 (1964) (Sen. McClellan).
Appendix A to the initial Title VI regulations identified several
programs making assistance available through payments to students
among those to which the regulations applied, 29 Fed.Reg. 16298,
16304 (1964), as did the version in force when Title IX was
enacted. 45 CFR pt. 80, Appendix A (1972).
See Bob Jones
University v. Johnson, 396 F.
Supp. 597 (SC 1974),
affirmance order, 529 F.2d 514
(CA4 1975). The current list of programs covered by Title VI
includes BEOG's and GSL's, 34 CFR pt. 100, Appendix A (1983), and
Grove City's assumption that Congress would have excluded BEOG's
from coverage under Title VI if the program had been operational in
1964 is baseless.
[
Footnote 16]
See 117 Cong.Rec. 30158-30159 (1971) (Sen. McGovern);
id. at 39260 (Rep. Erlenborn); 118 Cong.Rec. 5814 (1972)
(Sen. Bentsen). Grove City relies heavily on a colloquy between
Senators Bayh and Dominick:
"Mr. DOMINICK. The Senator is talking about every program under
HEW?"
"Mr. BAYH. Let me suggest that I would imagine that any person
who was sitting at the head of [HEW], administering this program,
would be reasonable, and would use only such leverage as was
necessary against the institution."
"It is unquestionable, in my judgment, that this would not be
directed at specific assistance that was being received by
individual students, but would be directed at the institution, and
the Secretary would be expected to use good judgment as to how much
leverage to apply, and where it could best be applied."
117 Cong.Rec. 30408 (1971).
Grove City contends that Senator Bayh's statement demonstrates
an intent to exclude student aid from coverage under Title IX. We
believe that his answer is more plausibly interpreted as suggesting
that, although the Secretary is empowered to terminate student aid,
he probably would not need to do so where leverage could be exerted
by terminating other assistance. The students, of course, always
remain free to take their assistance elsewhere.
[
Footnote 17]
The statutory "laying before" procedure and the actions taken by
Congress pursuant to it were more completely summarized in
North Haven Board of Education v. Bell, 456 U.S. at
456 U. S.
531-534.
[
Footnote 18]
Sex Discrimination Regulations: Hearings before the Subcommittee
on Postsecondary Education of the House Committee on Education and
Labor, 94th Cong., 1st Sess., 482 (1975) (1975 Hearings). The
Secretary added:
"Our view was that student assistance, assistance that the
Government furnishes, that goes directly or indirectly to an
institution is Government aid within the meaning of Title IX. If it
is not, there is an easy remedy. Simply tell us that it is not. We
believe it is, and base our assumption on that."
Id. at 484.
[
Footnote 19]
Although "Congress has proceeded to amend § 901 when it has
disagreed with HEW's interpretation of the statute,"
North
Haven Board of Education v. Bell, supra, at
456 U. S. 534,
it has acquiesced in the Department's longstanding assessment of
the types of federal aid that trigger coverage under Title IX. In
considering the 1976 Education Amendments, for example, Congress
rejected an amendment proposed by Senator McClure that would have
defined federal financial assistance as "assistance received by the
institution directly from the federal government." 122 Cong.Rec.
28144 (1976). Senator Pell objected that the amendment would remove
from the scope of Title IX funds provided under the BEOG program
and pointed out that, "[w]hile these dollars are paid to students,
they flow through and ultimately go to institutions of higher
education. . . ."
Id. at 28145. Senator Bayh raised a
similar objection,
id. at 28145-28146, and the amendment
was rejected.
Id. at 28147.
See also id. at
28013-28016 (treatment of Hatfield amendment).
It is also significant that, in 1976, Congress enacted
legislation clarifying the intent of the Privacy Act to ensure that
institutions serving as payment agents for the BEOG program are not
considered contractors maintaining a system of records to
accomplish a function of the Secretary. Pub.L. 94-328, § 2(f), 90
Stat. 727, 20 U.S.C. § 1070a(c). This legislation responded to
concerns expressed by educational institutions over "the additional
and unnecessary administrative burdens which would be imposed upon
them if [they] were deemed
contractors.'" S.Rep. No. 94-954, p.
3 (1976). In sharp contrast, Congress has failed to respond to
repeated requests by colleges in Grove City's position for
legislation exempting them from coverage under Title IX.
The statutory authorization for BEOG's, moreover, has been
renewed three times. Pub.L. 94-482, § 121(a), 90 Stat. 2091; Pub.L.
95-566, § 2, 92 Stat. 2402; Pub.L. 96-374, § 402(a), 94 Stat. 1401.
Each time, Congress was well aware of the administrative
interpretation under which such grants were believed to trigger
coverage under Title IX. The history of these reenactments makes
clear that Congress regards BEOG's and other forms of student aid
as a critical source of support for educational institutions.
See, e.g., Reauthorization of the Higher Education Act and
Related Measures: Hearings before the Subcommittee on Postsecondary
Education of the House Committee on Education and Labor, 96th
Cong., 1st Sess., pt. 3, p. 400 (1979) (Rep. Ford). In view of
Congress' consistent failure to amend either Title IX or the BEOG
statute in a way that would support Grove City's argument, we feel
fully justified in concluding that "the legislative intent has been
correctly discerned."
North Haven Board of Education v. Bell,
supra, at
456 U. S.
535.
[
Footnote 20]
JUSTICE STEVENS' assertion that we need not decide and have no
jurisdiction to decide this question is puzzling. Title IX coverage
is triggered only when an "education program or activity" is
receiving federal aid. Unless such a program can be and is
identified, there is no basis for ordering the College to execute
an Assurance of Compliance. The Court of Appeals understood as
much, and ruled that the entire College is the covered educational
program. Until and unless that view of the statute is overturned,
there will be outstanding an authoritative Court of Appeals'
judgment that the certificate Grove City must execute relates to
the entire College and that, without such a certificate, the
Department would be entitled to terminate grants to Grove City
students.
Grove City asks to be relieved of that judgment on the grounds
that none of its educational programs is receiving any federal aid
and that, if any of its programs is receiving aid, it is only its
administration of the BEOG program. Grove City is entitled to have
these issues addressed, for otherwise it must deal with the
undisturbed judgment of the Court of Appeals that the entire
College is subject to federal oversight under Title IX. Even though
the Secretary has changed his position and no longer agrees with
the expansive construction accorded the statute by the Court of
Appeals, it is still at odds with Grove City as to the extent of
the covered program; and, in any event, its modified stance can
hardly overturn or modify the judgment below or eliminate Grove
City's legitimate and substantial interest in having its
submissions adjudicated.
[
Footnote 21]
There is no merit to Grove City's argument that the Department
may regulate only the administration of the BEOG program. Just as
employees who "work in an education program that receive[s] federal
assistance,"
North Haven Board of Education v. Bell, 456
U.S. at
456 U. S. 540,
are protected under Title IX even if their salaries are "not funded
by federal money,"
ibid., so also are students who
participate in the College's federally assisted financial aid
program but who do not themselves receive federal funds protected
against discrimination on the basis of sex.
[
Footnote 22]
Until 1980, institutions whose students received BEOG's and
other forms of assistance were required to provide assurance that
they would
"continue to spend on [their] own scholarship and student aid
program[s], from sources other than funds received under [the
federal programs], not less than the average expenditure per year
made for that purpose during the most recent period of three fiscal
years."
20 U.S.C. § 1088c. This requirement was altered in the Education
Amendments of 1980, Pub.L. 96-374, § 487(a), 94 Stat. 1451, 20
U.S.C. § 1094(a)(2) (1982 ed.), and no longer applies to schools
whose students receive only BEOG's.
JUSTICE POWELL, with whom THE CHIEF JUSTICE and JUSTICE O'CONNOR
join, concurring.
As I agree that the holding in this case is dictated by the
language and legislative history of Title IX, and the regulations
of the Department of Education, I join the Court's decision. I do
so reluctantly, and write briefly to record my view that the case
is an unedifying example of overzealousness on the part of the
Federal Government.
Grove City College (Grove City) may be unique among colleges in
our country; certainly there are few others like it. Founded more
than a century ago in 1876, Grove City is an independent,
coeducational liberal arts college. It describes itself as having
"both a Christian world view and a freedom philosophy," perceiving
these as "interrelated." App. A-22. At the time of this suit, it
had about 2,200 students, and tuition was surprisingly low for a
private college. [
Footnote 2/1]
Some 140 of the College's students were receiving Basic Educational
Opportunity Grants (BEOG's), [
Footnote
2/2] and 342 had obtained Guaranteed Student Loans (GSL's).
[
Footnote 2/3] The grants were made
directly to the students through the Department of Education, and
the student loans were guaranteed by the Federal Government. Apart
from this indirect assistance, Grove City has followed an unbending
policy of refusing all forms of government assistance, whether
federal, state, or local. It was and is the policy of this small
college to remain wholly independent
Page 465 U. S. 577
of government assistance, recognizing -- as this case well
illustrates -- that, with acceptance of such assistance, one
surrenders a certain measure of the freedom that Americans always
have cherished.
This case involves a regulation adopted by the Department to
implement § 901(a) of Title IX (20 U.S.C. § 1681(a)). It is well to
bear in mind what § 901(a) provides:
"No person in the United States shall, on the basis of sex, be
excluded from participation in, be denied the benefits of, or be
subjected to discrimination under any education program or activity
receiving federal financial assistance. . . ."
The sole purpose of the statute is to make unlawful
"
discrimination" by recipients of federal financial
assistance on the "basis of sex." The undisputed fact is that Grove
City does not discriminate -- and so far as the record in this case
shows -- never has discriminated against anyone on account of sex,
race, or national origin. This case has nothing whatever to do with
discrimination past or present. The College therefore has complied
to the letter with the sole purpose of § 901(a).
As the Court describes, the case arises pursuant to a regulation
adopted under Title IX that authorizes the Secretary to obtain from
recipients of federal aid an "Assurance of Compliance" with Title
IX and regulations issued thereunder. At the outset of this
litigation, the Department insisted that, by accepting students who
received BEOG awards, Grove City's entire institution was subject
to regulation under Title IX. The College, in view of its policies
and principles of independence and its record of nondiscrimination,
objected to executing this Assurance. One would have thought that
the Department, confronted as it is with cases of national
importance that involve actual discrimination, would have respected
the independence and admirable record of this College. But common
sense and good judgment failed to prevail.
Page 465 U. S. 578
The Department chose to litigate, and instituted an
administrative proceeding to compel Grove City to execute an
agreement to operate all of its programs and activities in full
compliance with all of the regulations promulgated under Title IX
-- despite the College's record as an institution that had operated
to date in full accordance with the letter and spirit of Title IX.
The Administrative Law Judge who heard the case on September 15,
1978, did not relish his task.
On the basis of the evidence, which included the formal
published statement of Grove City's strong "nondiscrimination
policy," he stated:
"It should also be noted that there was
not the slightest
hint of any failure to comply with Title IX save the refusal
to submit an executed assurance of compliance with Title IX. This
refusal is obviously a matter of conscience and belief."
App. to Pet. for Cert. A-94 (emphasis added). [
Footnote 2/4] The Administrative Law Judge further
evidenced his reluctance by emphasizing that the regulations were
"binding" upon him.
Id. at A-95. He concluded that the
scholarship grants and student loans to Grove City constituted
indirect "federal financial assistance," and in view of the failure
of Grove City to execute the Assurance, the regulation required
that the grants and loans to its students must be "terminated."
Id. at A-96. The College and four of its students then
instituted this suit in 1978 challenging the validity of the
regulations and seeking a declaratory judgment.
The effect of the Department's termination of the student grants
and loans would not have been limited to the College itself.
Indeed, the most direct effect would have been upon the students
themselves. Absent the availability of other scholarship funds,
many of them would have had to abandon their college education or
choose another school. It was to
Page 465 U. S. 579
avoid these serious consequences, that this suit was instituted.
The College prevailed in the District Court, but lost in the Court
of Appeals. Only after Grove City had brought its case before this
Court did the Department retreat to its present position that Title
IX applies only to Grove City's financial aid office. On this
narrow theory, the Department has prevailed, having taken this
small independent college, which it acknowledges has engaged in no
discrimination whatever, through six years of litigation with the
full weight of the Federal Government opposing it. I cannot believe
that the Department will rejoice in its "victory."
[
Footnote 2/1]
Yearly tuition for 1983 for fees, room, and board was $4,270.
Brief for Petitioners 3, n. 2.
[
Footnote 2/2]
Grove City College v. Harris, 500 F.
Supp. 253, 259 (WD Pa.1980).
[
Footnote 2/3]
Ibid.
[
Footnote 2/4]
These findings of the Administrative Law Judge have not been
questioned.
JUSTICE STEVENS, concurring in part and concurring in the
result.
For two reasons, I am unable to join Part III of the Court's
opinion. First, it is an advisory opinion unnecessary to today's
decision, and second, the advice is predicated on speculation,
rather than evidence.
The controverted issue in this litigation is whether Grove City
College may be required to execute the "Assurance of Compliance
with Title IX" tendered to it by the Secretary in order to continue
receiving the benefits of the federal financial assistance provided
by the BEOG program. The Court of Appeals affirmed the District
Court's decision that Grove City is a "recipient" of federal
financial assistance, and reversed its decision that the Secretary
could not terminate federal financial assistance because Grove City
refused to execute the Assurance. The Court today holds (in
465 U. S. and
(in
465 U. S.
These holdings are fully sufficient to sustain the judgment the
Court reviews, as the Court acknowledges by affirming that
judgment.
In
465 U. S. the
Court holds that Grove City is not required to refrain from
discrimination on the basis of
Page 465 U. S. 580
sex except in its financial aid program. In so stating, the
Court decides an issue that is not in dispute. The Assurance of
Compliance merely requires that it comply with Title IX "to the
extent applicable to it."
See ante at
465 U. S. 560.
The Secretary, who is responsible for administering Title IX,
construes the statute as applicable only to Grove City's financial
aid program. All the Secretary seeks is a judgment that Title IX
requires Grove City to promise not to discriminate in its financial
aid program. The Court correctly holds that this program is subject
to the requirements of Title IX, and that Grove City must promise
not to discriminate in its operation of the program. But there is
no reason for the Court to hold that Grove City need not make a
promise that the Secretary does not ask it to make, and that it in
fact would not be making by signing the Assurance, in order to
continue to receive federal financial assistance. It will be soon
enough to decide the question discussed in
465 U.
S.
Moreover, the record in this case is far from adequate to decide
the question raised in
465 U. S.
See Consolidated Rail Corp. v. Darrone, post at
465 U. S.
635-636. Assuming for the moment that participation in
the BEOG program could not in itself make Title IX applicable to
the entire institution, a factual inquiry is nevertheless necessary
as to which of Grove City's programs and activities can be said to
receive or benefit from federal financial assistance. This is the
import of the applicable regulation, upheld by the Court today,
ante at
465 U. S.
574-575, which states that Title IX applies
"to every recipient and to each education program or activity
operated by such recipient which receives or benefits from Federal
financial assistance."
34 CFR § 106.11 (1983). The Court overlooks the fact that the
regulation is in the disjunctive; Title IX coverage does not always
depend on the actual receipt of federal financial assistance by a
given program or activity. The record does not tell us how
important the BEOG program
Page 465 U. S. 581
is to Grove City, in either absolute or relative terms; nor does
it tell us anything about how the benefits of the program are
allocated within the institution. The Court decides that a small
scholarship for just one student should not subject the entire
school to coverage.
Ante at
465 U. S.
572-573. But why should this case be judged on the basis
of that hypothetical example instead of a different one? What if
the record showed -- and I do not suggest that it does -- that all
of the BEOG money was reserved for, or merely happened to be used
by, talented athletes, and that their tuition payments were
sufficient to support an entire athletic program that would
otherwise be abandoned? Would such a hypothetical program be
covered by Title IX?
* And if this
athletic program discriminated on the basis of sex, could it
plausibly be contended that Congress intended that BEOG money could
be used to enable such a program to survive? Until we know
something about the character of the particular program, it is
inappropriate to give advice about an issue that is not before
us.
Accordingly, while I subscribe to the reasoning in Parts I, II,
IV, and V of the Court's opinion, I am unable to join Part III.
* Indeed, if we are to speculate about hypothetical cases, why
not consider a school comparable to the private institutions
discussed in
Blum v. Yaretsky, 457 U.
S. 991 (1982), in which over 90% of the patients
received funds from public sources?
See id. at
457 U. S.
1011. It is at least theoretically possible that an
educational institution might be financed entirely by tuition, and
that virtually all of the students at an institution could receive
a federal subsidy. Again, I do not suggest that Grove City College
is such an institution, but I do suggest that it is improper for
the Court to decide a legal issue on the basis of hypothetical
examples that are selected to support a particular result.
JUSTICE BRENNAN, with whom JUSTICE MARSHALL joins, concurring in
part and dissenting in part.
The Court today concludes that Grove City College is "receiving
Federal financial assistance" within the meaning of Title IX of the
Education Amendments of 1972, 20 U.S.C.
Page 465 U. S. 582
§ 1681(a), because a number of its students receive federal
education grants. As the Court persuasively demonstrates in
465 U. S. that
conclusion is dictated by "the need to accord [Title IX] a sweep as
broad as its language,"
ante at
465 U. S. 564;
by reference to the analogous statutory language and legislative
history of Title VI of the Civil Rights Act of 1964,
ante
at
465 U. S. 566;
by reliance on the unique postenactment history of Title IX,
ante at
465 U. S.
567-568; and by recognition of the strong congressional
intent that there is no "substantive difference between direct
institutional assistance and aid received by a school through its
students,"
ante at
465 U. S. 564,
465 U. S.
565-566,
465 U. S.
569-570, and nn. 12-14, 19. For these same reasons,
however, I cannot join
465 U. S. in
which the Court interprets the language in Title IX that limits
application of the statute to "any education program or activity"
receiving federal moneys. By conveniently ignoring these
controlling indicia of congressional intent, the Court also ignores
the primary purposes for which Congress enacted Title IX. The
result -- allowing Title IX coverage for the College's financial
aid program, but rejecting institution-wide coverage even though
federal moneys benefit the entire College -- may be superficially
pleasing to those who are uncomfortable with federal intrusion into
private educational institutions, but it has no relationship to the
statutory scheme enacted by Congress.
I
The Court has twice before had occasion to ascertain the precise
scope of Title IX.
See North Haven Board of Education v.
Bell, 456 U. S. 512
(1982);
Cannon v. University of Chicago, 441 U.
S. 677 (1979). In both cases, the Court emphasized the
broad congressional purposes underlying enactment of the statute.
In
Cannon, while holding that Title IX confers a private
cause of action on individual plaintiffs, we noted that the primary
congressional purpose behind the statute was "to avoid the use of
federal resources to support discriminatory practices," and that
this purpose
"is generally
Page 465 U. S. 583
served by the statutory procedure for the termination of federal
financial support for institutions engaged in discriminatory
practices."
Id. at
441 U. S. 704.
In
North Haven, while holding that employment
discrimination is within the reach of Title IX, we expressed "no
doubt that,
if we are to give [Title IX] the scope that its
origins dictate, we must accord it a sweep as broad as its
language.'" 456 U.S. at 456 U. S. 521
(quoting United States v. Price, 383 U.
S. 787, 383 U. S. 801
(1966)). And although we acknowledged that an agency's authority
"both to promulgate regulations and to terminate funds is subject
to the program-specific limitation of §§ 901 and 902," 456 U.S. at
456 U. S. 538,
we explicitly refused to define "program" at that time,
id. at 456 U. S.
540.
When reaching that question today, [
Footnote 3/1] the Court completely disregards the broad
remedial purposes of Title IX that consistently have controlled our
prior interpretations of this civil rights statute. Moreover, a
careful examination of the statute's legislative history, the
accepted meaning of similar statutory language in Title VI, and the
postenactment history of Title IX will demonstrate that the Court's
narrow definition of "program or activity" is directly contrary to
congressional intent.
A
The statute that was eventually enacted as Title IX had its
genesis in separate proposals considered by the House and the
Senate, in 1970 and 1971, respectively. In the House, the Special
Subcommittee on Education, under the leadership of Representative
Edith Green, held extensive hearings during the summer of 1970 on
"Discrimination Against
Page 465 U. S. 584
Women."
See Hearings on § 805 of H.R. 16098 before the
Special Subcommittee on Education of the House Committee on
Education and Labor, 91st Cong., 2d Sess. (1970) (1970 Hearings).
At that time, the Subcommittee was considering a package of
legislation that included a simple amendment adding the word "sex"
to the list of discriminations prohibited by Title VI of the Civil
Rights Act of 1964, 42 U.S.C. § 2000d. [
Footnote 3/2]
See North Haven, supra, at
456 U. S. 523,
n. 13;
Cannon, supra, at
441 U. S. 694,
n. 16. Testimony offered during those hearings, however, focused on
the evidence of pervasive sex discrimination in educational
institutions. [
Footnote 3/3] It
therefore was not surprising that the version of the
Subcommittee's
Page 465 U. S. 585
proposal that was eventually passed by the full House was
limited in its application to federally assisted education programs
or activities.
See 117 Cong.Rec. 39248-39261, 39353-39354
(1971). More important for present purposes, however, the
House-passed bill retained the overall format of the Subcommittee
proposal, and therefore continued to incorporate the "program or
activity" language and its enforcement provisions from Title VI.
Id. at 39364-39365.
In the Senate, action began on Title IX in 1971, when Senator
Bayh first introduced a floor amendment to the comprehensive
education legislation then being considered. Amendment No. 398 to
Higher Education Act of 1971, reprinted in 117 Cong.Rec. 30156
(1971). As then written, Senator Bayh's proposal was clearly
intended to cover an entire institution whenever any education
program or activity conducted by that institution was receiving
federal moneys. In particular, the amendment expressly prohibited
discrimination on the basis of sex
"under any program or activity conducted by a public institution
of higher education, or any school or department of graduate
education, which is a recipient of Federal financial assistance for
any education program or activity."
As explained by its sponsor, the amendment would have prohibited
sex discrimination "by any public institution of higher education
or any institution of graduate education receiving Federal
educational financial assistance."
Id. at 30157. [
Footnote 3/4]
The 1971 amendment was eventually ruled nongermane,
id.
at 30415, so Senator Bayh was forced to renew his efforts during
the next session. When reintroduced, the amendment had been
modified to conform in substantial part with the version of Title
IX that had been passed by the House.
See 118 Cong.Rec.
5803 (1972). This change was apparently made to ensure adoption of
the antidiscrimination provisions by the Conference Committee that
would soon
Page 465 U. S. 586
convene.
See id. at 5813 (remarks of Sen. Pell,
principal Senate Manager of the bill) ("As [Senator Bayh] knows, I
said to him earlier that I intended to support the position he has
advocated in conference with the House. He has chosen to bring the
amendment before the Senate now"). There is thus nothing to suggest
that the Senate had retreated from the underlying premise of the
original amendment proposed by Senator Bayh in 1971 -- that sex
discrimination would be prohibited in any educational institution
receiving federal financial assistance. Indeed, Senator Bayh's
willingness to conform the language of his amendment to the bill
already enacted by the House proved successful, as Title IX was
approved by the Conference Committee,
see S.Conf.Rep. No.
92-798, pp. 221-222 (1972), and enacted into law.
In sum, although the contemporaneous legislative history does
not definitively explain the intended meaning of the
program-specific language included in Title IX, it lends no support
to the interpretation adopted by the Court. What is clear,
moreover, is that Congress intended enforcement of Title IX to
mirror the policies and procedures utilized for enforcement under
Title VI.
B
"Title IX was patterned after Title VI of the Civil Rights Act
of 1964."
Cannon, 441 U.S. at
441 U. S. 694.
Except for the substitution of the word "sex" in Title IX to
replace the words "race, color, or national origin" in Title VI,
and for the limitation of Title IX to "education" programs or
activities, the two statutes use identical language to describe
their scope. The interpretation of this critical language as it
already existed under Title VI is therefore crucial to an
understanding of congressional intent in 1972 when Title IX was
enacted using the same language.
The voluminous legislative history of Title VI is not easy to
comprehend, especially when one considers the emotionally and
politically charged atmosphere operating at the time of its
enactment. And there are no authoritative committee reports
Page 465 U. S. 587
explaining the many compromises that were eventually enacted,
including the program-specific limitations that found their way
into Title VI. Moreover, as might be expected, statements were made
by various Members of Congress that can be cited to support a whole
range of definitions for the "program or activity" language. For
every instance in which a legislator equated the word "program"
with a particular grant statute, [
Footnote 3/5] there is an example of a legislator
defining "program or activity" more broadly. [
Footnote 3/6]
Without completely canvassing several volumes of the
Congressional Record, I believe it is safe to say that, by
including the programmatic language in Title VI, Congress sought to
allay fears on the part of many legislators that one isolated
violation of the statute's antidiscrimination provisions would
result in the wholesale termination of federal funds. In
particular,
"Congress was primarily concerned with two facets of the
termination power: the possibility that noncompliance in a single
school district might lead to termination of funds to the entire
state; and the possibility that discrimination in the education
program might result in the termination of federal assistance to
unrelated federally financed programs, such as highways."
Comment, 118 U.Pa.L.Rev. 1113, 1119-1120 (1970) (footnotes
omitted).
See id. at 1116-1124.
See also 687 F.2d
684, 697-698 (CA3 1982).
But even accepting that there is some uncertainty concerning the
1964 understanding of "program or activity," we need not be overly
concerned with whatever doubt surrounds the precise intent, if any,
of the 88th Congress. For what is crucial in ascertaining the
meaning of the program-specific language
Page 465 U. S. 588
included in Title IX is the understanding that the 92d Congress
had at the time it enacted the identical language.
Cf. Cannon,
supra, at
441 U. S.
696-698. And there were two principal indicators of the
accepted interpretation of the program-specific language in Title
VI that were available to Members of Congress in 1972 when Title IX
was enacted -- the existing administrative regulations promulgated
under Title VI and the available judicial decisions that had
already interpreted those provisions.
The Title VI regulations first issued by the Department of
Health, Education, and Welfare during the 1960's, and remaining in
effect during 1972, could not have been clearer in the way they
applied to educational institutions.
See generally 45 CFR
pt. 80 (1972). For example, § 80.4(d) explained the assurances
required from, among others, institutions of higher education that
received federal financial assistance:
"(d)
Assurances from institutions. (1) In the case of
any application for Federal financial assistance to an institution
of higher education (including assistance for construction, for
research, for a special training project, for a student loan
program, or for any other purpose), the assurance required by this
section shall extend to admission practices
and to all other
practices relating to the treatment of students."
"(2) The assurance required with respect to an institution of
higher education, . . . insofar as the assurance relates to the
institution's practices with respect to admission or other
treatment of individuals as students, . . . or to the opportunity
to participate in the provision of services or other benefits to
such individuals,
shall be applicable to the entire institution
unless the applicant establishes, to the satisfaction of the
responsible Department official, that the institution's practices
in designated parts or programs of the institution will in no way
affect its practices in the program of the institution for
Page 465 U. S. 589
which Federal financial assistance is sought, or the
beneficiaries of or participants in such program. If in any such
case the assistance sought is for the construction of a facility or
part of a facility, the assurance shall in any event extend to the
entire facility and to facilities operated in connection
therewith."
(Emphasis added.)
A list of illustrative applications followed that further
demonstrated the broad scope of these regulations. One of the
illustrations was aimed particularly at institutions of higher
education:
"In a research, training, demonstration, or other grant to a
university for activities to be conducted in a graduate school,
discrimination in the admission and treatment of students in the
graduate school is prohibited, and the prohibition extends to the
entire university unless it satisfies the responsible Department
official that practices with respect to other parts or programs of
the university will not interfere, directly or indirectly, with
fulfillment of the assurance required with respect to the graduate
school."
§ 80.5(c). [
Footnote 3/7]
Page 465 U. S. 590
It must have been clear to the Congress enacting Title IX,
therefore, that the administrative interpretation of that statute
would follow a similarly expansive approach. Nothing in the
legislative history suggests otherwise, and "[i]t is always
appropriate to assume that our elected representatives, like other
citizens, know the law."
Cannon, 441 U.S. at
441 U. S.
696-697.
Nor were there any outstanding court decisions in 1972 that
would have led Congress to believe that Title VI was much narrower
in scope. The principal judicial interpretations of Title VI prior
to 1972 were announced by the United States Court of Appeals for
the Fifth Circuit. In a school desegregation case, for example, the
court expressly approved the Department's desegregation guidelines,
while noting the broad purposes underlying the prohibitory section
of Title VI.
United States v. Jefferson County Board of
Education, 372 F.2d 836, 881-882 (CA5 1966),
adopted en
banc, 380 F.2d 385 (CA5 1967) (per curiam) ("
The legality
is based on the general power of Congress to apply reasonable
conditions. . . . In general, it seems rather anomalous that the
Federal Government should aid and abet discrimination on the basis
of race, color or national origin by granting money and other kinds
of financial aid'") (quoting Cong. Celler). In another
desegregation case, the court noted that Title VI
"states a reasonable condition that the United States may attach
to any grant of financial assistance and may enforce by refusal or
withdrawal of federal assistance."
Bossier Parish School Board v. Lemon, 370 F.2d 847, 852
(CA5 1967). More significantly, the court went on to equate a local
school system with a "program or activity" receiving federal aid,
noting that the
"School Board accepted federal financial assistance in November,
1964, and thereby brought its school system within the class of
programs subject to the section 601 prohibition against
discrimination."
Ibid.
Finally, in
Board of Public Instruction v. Finch, 414
F.2d 1068 (CA5 1969), the court spoke more directly to the
Page 465 U. S. 591
program-specific limitation in Title VI. Although the court
refused "to assume . . . that defects in one part of a school
system automatically infect the whole,"
id. at 1074, and
rejected the definition of the term "program" offered by the
Department,
id. at 1077, the court also noted that "the
purpose of the Title VI cutoff is best effectuated by separate
consideration of the use or intended use of federal funds under
each grant statute,"
id. at 1078. In particular,
although
"there will . . . be cases from time to time where a particular
program, within a state, within a county, within a district, even
within a school . . is effectively insulated from otherwise
unlawful activities,"
termination of federal funds is proper if they "are administered
in a discriminatory manner, or if they support a program which is
infected by a discriminatory environment."
Ibid. To this
end, the court remanded the case to the Department for specific
findings on the relationship, if any, between the three types of
federal grants received by the school system (federal aid for the
education of children from low-income families, for supplementary
education centers, and for adult education) and the system's
discriminatory practices.
In short, the judicial interpretations of Title VI existing in
1972 were either in agreement with the expansive reach of the
Department's regulations,
Bossier Parish, supra; Jefferson
County, supra, or sanctioned a broad-based termination of
federal aid if the funded programs were affected by discriminatory
practices,
Finch, supra. See also Note, 55
Geo.L.J. 325, 344-345 (1966) (supporting Department's treatment of
a school district as an individual program).
Cf. Lau v.
Nichols, 414 U. S. 563,
414 U. S. 568
(1974) (treating an entire school system or school district as an
"educational program" under Title VI). Like the existing
administrative regulations, therefore, they provide strong support
for the view that Congress intended an expansive interpretation of
the program-specific language included in Title IX. Because Members
of Congress
"repeated[ly] refer[red] to Title VI and
Page 465 U. S. 592
its modes of enforcement, we are especially justified in
presuming both that those representatives were aware of the prior
interpretation of Title VI and that that interpretation reflects
their intent with respect to Title IX."
Cannon, supra, at
441 U. S.
697-698.
C
If any doubt remains about the congressional intent underlying
the program-specific language included in Title IX, it is removed
by the unique postenactment history of the statute.
"Although postenactment developments cannot be accorded 'the
weight of contemporary legislative history, we would be remiss if
we ignored these authoritative expressions concerning the scope and
purpose of Title IX. . . .'"
North Haven, 456 U.S. at
456 U. S. 535
(quoting
Cannon, supra, at
441 U. S. 687,
n. 7).
See also ante at
465 U. S.
567-568.
Regulations promulgated by the Department to implement Title IX,
both as proposed, 39 Fed.Reg. 22228 (1974), and as finally adopted,
40 Fed.Reg. 24128 (1975), included an interpretation of program
specificity consistent with the view of Title VI and with the
congressional intent behind Title IX outlined above. In particular,
the regulations prohibited sex discrimination
"under any academic, extracurricular, research, occupational
training, or other education program or activity operated by a
recipient which receives or benefits from Federal financial
assistance."
Id. at 24140 (now codified at 34 CFR § 106.31 (1983)).
Introductory remarks explained the basis for the agency's
decision:
"[T]itle IX will be consistent with the interpretation of
similar language contained in title VI of the Civil Rights Act of
1964. . . . Therefore, an education program or activity or part
thereof operated by a recipient of Federal financial assistance
administered by the Department will be subject to the requirements
of this regulation if it receives or benefits from such assistance.
[
Footnote 3/8] This
interpretation
Page 465 U. S. 593
is consistent with the only case specifically ruling on the
language contained in title VI, which holds that Federal funds may
be terminated under title VI upon a finding that they '[are]
infected by a discriminatory environment.'"
40 Fed.Reg., at 24128 (quoting
Finch, 414 F.2d at
1078-1079). Thus, the agency charged with the statute's
implementation initially interpreted the program-specific language
of Title IX in a manner consistent with the view of Congress'
intent outlined above -- to allow for application of the statute to
an entire institution if the institution is comprised of education
programs or activities that receive or benefit from federal
moneys.
Moreover, pursuant to § 431(d)(1) of the General Education
Provisions Act, as amended by Pub.L. 93-380, 88 Stat. 567, these
regulations were submitted to Congress for review. As we explained
in
North Haven, supra, at
456 U. S.
531-532 (quoting 20 U.S.C. § 1232(d)(1)), this "laying
before" procedure afforded Congress an opportunity to disapprove
any regulation that it found to be "inconsistent with the Act from
which it derives its authority." And although the regulations
interpreting the program-specific limitations of Title IX were
explicitly considered by both Houses of Congress, no resolutions of
disapproval were passed by the Legislature.
In particular, two resolutions to invalidate the Department's
regulations were proposed in the Senate, each specifically
challenging the regulations because of the program-specificity
Page 465 U. S. 594
requirements of Title IX. One resolution would have provided a
blanket disapproval of the regulations, S.Con.Res. 46, 94th Cong.,
1st Sess. (1975), premised in part on the view that
"[t]he regulations are inconsistent with the enactment in that
they apply to programs or activities not receiving Federal funds
such as athletics and extracurricular activities,"
121 Cong.Rec. 17300 (1975) (remarks of Sen. Helms). The other
resolution was aimed more particularly at the regulation of
athletic programs and activities not receiving direct federal
moneys, but also was premised on the program-specific limitations
in the statute.
See S. Con. Res. 52, 94th Cong., 1st Sess.
(1975). [
Footnote 3/9] Neither
resolution,
Page 465 U. S. 595
however, was acted upon after referral to the appropriate
Committee.
In the House, extensive hearings were held by two separate
Subcommittees of the Committee on Education and Labor. Of primary
interest are the six days of hearings held by the Subcommittee on
Postsecondary Education to review the Department's regulations
"solely to see if they are consistent with the law and with the
intent of the Congress in enacting the law."
See Sex
Discrimination Regulations: Hearings before the Subcommittee on
Postsecondary Education of the House Committee on Education and
Labor, 94th Cong., 1st Sess., 1 (1975) (1975 Hearings) (remarks of
Rep. O'Hara). Among the numerous witnesses testifying about the
programmatic reach of the Department's regulations were Senator
Bayh, the chief Senate sponsor of the legislation,
see
supra at
465 U. S.
585-586, and HEW Secretary Weinberger. Both strongly
supported the scope of the regulations as consistent with the
intent evidenced by the 92d Congress in 1972.
See, e.g.,
1975 Hearings, at 169-171 (statement of Sen. Bayh);
id. at
178 (testimony of Sen. Bayh);
id. at 438, 485 (testimony
of Secretary Weinberger);
id. at 487-488 (letter from
Secretary Weinberger). [
Footnote
3/10] Specifically focusing on
Page 465 U. S. 596
the legal basis for the Department's regulations, the Secretary
noted:
"One of the places you look for guidance is in the
interpretation that the courts have given to similar statutes.
Title VI, in the
Finch case, was interpreted in a way . .
. that programs that have any educational value or any educational
meaning are the ones that are covered regardless of whether the
Federal funds go specifically to those programs."
"In other words, if the Federal funds go to an institution which
has educational programs, then the institution is covered
throughout its activities. That essentially was the ruling with
respect to similar language in title VI, and that is why we used
this interpretation in title IX."
Id.at 485. Then, in a subsequent letter submitted to
the Subcommittee, Secretary Weinberger addressed the precise issue
posed by Grove City College in this case:
"[I]f students attending an institution of higher education are
receiving benefits under the various Federal educational assistance
programs, then
all of the institution's activities that
are supported by tuition payments of the students can be said to be
receiving Federal financial assistance."
Id. at 488 (emphasis in original). [
Footnote 3/11]
Page 465 U. S. 597
Despite the attention focused upon, and the strong defense
offered in support of, the programmatic reach of the Department's
regulations at these hearings, the House offered no formal
resistance to the regulations. Indeed, among the several
resolutions of disapproval introduced in the House, only one
directly mentioned this aspect of the regulations, and this
resolution was not acted upon either by committee or by the full
House. H.R.Con.Res. 311, 94th Cong., 1st Sess. (1975) (disapproving
regulations that "would apply to athletic programs and grants which
neither receive nor benefit from Federal financial assistance");
see 121 Cong.Rec.19209 (1975).
Although the failure of Congress to disapprove the Department's
regulations is not itself determinative, it does "len[d] weight to
the argument" that the regulations were consistent with
congressional intent.
North Haven, 456 U.S. at
456 U. S. 534.
Moreover,
"the relatively insubstantial interest given the resolutions of
disapproval that were introduced seems particularly significant
since Congress has proceeded to amend [Title IX] when it has
disagreed with [the Department's] interpretation
Page 465 U. S. 598
of the statute."
Ibid. Indeed, those amendments, by exempting from the
reach of Title IX various facilities or services at educational
institutions that themselves do not receive direct federal aid,
strongly suggest that Congress understands the statute otherwise to
encompass such programs or activities. [
Footnote 3/12]
Page 465 U. S. 599
In conclusion, each of the factors relevant to the
interpretation of the program-specificity requirements of Title IX,
taken individually or collectively, demonstrates that the Court
today limits the reach of Title IX in a way that was wholly
unintended by Congress. The contemporaneous legislative history of
Title IX, the relevant interpretation of similar language in Title
VI, and the administrative and legislative interpretations of Title
IX since the statute's original enactment all lead to the same
conclusion: that Title IX coverage for an institution of higher
education is appropriate if federal moneys are received by or
benefit the entire institution.
II
A proper application of Title IX to the circumstances of this
case demonstrates beyond peradventure that the Court has
unjustifiably limited the statute's reach. Grove City College
enrolls approximately 140 students who utilize Basic Educational
Opportunity Grants (BEOG's) to pay for their education at the
College. Although the grant moneys are paid directly to the
students, the Court properly concludes that the use of these
federal moneys at the College means that the College "receives
Federal financial assistance" within the meaning of Title IX. The
Court also correctly notes that a principal purpose underlying
congressional enactment of the BEOG program is to provide funds
that will benefit colleges and universities as a whole. It
necessarily follows, in my view, that the entire undergraduate
institution operated by Grove City College is subject to the
antidiscrimination provisions included in Title IX.
A
In determining the scope of Title IX coverage, the primary focus
should be on the purposes meant to be served by the
Page 465 U. S. 600
particular federal funds received by the institution. [
Footnote 3/13] In this case, Congress has
clearly indicated that BEOG moneys are intended to benefit any
college or university that enrolls students receiving such grants.
As the Court repeatedly recognizes:
"The legislative history of the [Education Amendments of 1972]
is replete with statements evincing Congress' awareness that the
student assistance programs established by the amendments would
significantly aid colleges and universities. In fact, one of the
stated purposes of the student aid provisions was to 'provid[e]
assistance to institutions of higher education.' Pub.L. 92-318, §
1001(c)(1), 86 Stat. 381, 20 U.S.C. § 1070(a)(5)."
Ante at
465 U. S.
565-566 (footnote omitted).
See also ante at
465 U. S. 564
(Title IX "contains no hint that Congress perceived a substantive
difference between direct institutional assistance and aid received
by a school through its students");
ante at
465 U. S. 565,
n. 13 ("student aid programs . . . were . . . designed to assist
colleges and universities");
ante at
465 U. S. 569,
n.19 ("The history of [the reenactments of the statutory
authorization for BEOG's] makes clear that Congress regards BEOG's
and other forms of student aid as a critical source of support for
educational institutions").
In many respects, therefore, Congress views financial aid to
students, and in particular BEOG's, as the functional equivalent of
general aid to institutions. Given this undeniable and clearly
stated congressional purpose, it would seem to be self-evident that
Congress intended colleges or universities enrolling students who
receive BEOG's to be covered, in their entirety, by the
antidiscrimination provisions of Title IX. That statute's primary
purpose, after all, is to ensure
Page 465 U. S. 601
that federal moneys are not used to support discriminatory
practices.
Cannon, 441 U.S. at
441 U. S.
704.
Under the Court's holding, in contrast, Grove City College is
prohibited from discriminating on the basis of sex in its own
"financial aid program," but is free to discriminate in other
"programs or activities" operated by the institution. Underlying
this result is the unstated and unsupportable assumption that
moneys received through BEOG's are meant only to be utilized by the
College's financial aid program. But it is undisputed that BEOG
moneys, paid to the institution as tuition and fees and used in the
general operating budget, are utilized to support most, and perhaps
all, of the facilities and services that together constitute Grove
City College. [
Footnote 3/14]
The absurdity of the Court's decision is further demonstrated by
examining its practical effect. According to the Court, the
"financial aid program" at Grove City College may not discriminate
on the basis of sex because it is covered by Title IX, but the
College is not prohibited from discriminating in its admissions,
its athletic programs, or even its various academic departments.
The Court thus sanctions practices that Congress clearly could not
have intended: for example, after today's decision, Grove City
College would be free to segregate male and female students in
classes run by its mathematics department. This would be so even
though
Page 465 U. S. 602
the affected students are attending the College with the
financial assistance provided by federal funds. If anything about
Title IX were ever certain, it is that discriminatory practices
like the one just described were meant to be prohibited by the
statute.
B
The Court, moreover, does not offer any defensible justification
for its holding. First, the Court states that it has "no doubt"
that BEOG's administered through the Regular Disbursement System
(RDS) are received, not by the entire College, but by its financial
aid program. Thus, the Court reasons, BEOG's administered through
the Alternative Disbursement System must also be received only by
the financial aid program. The premise of this syllogism, however,
simply begs the question presented; until today's decision, there
was considerable doubt concerning the reach of Title IX in a
college or university administering BEOG's through the RDS. Indeed,
the extent to which Title IX covers an educational institution
receiving BEOG's is the same regardless of the procedural mechanism
chosen by the college to disburse the student aid. With this
argument, therefore, the Court is simply restating the question
presented by the case.
Second, the Court rejects the notion that the federal funds
disbursed under the BEOG program are received by the entire
institution because they effectively "free up" the College's own
resources for use by all programs or activities that are operated
by Grove City College. But coverage of an entire institution that
receives BEOG's through its students is not dependent upon such a
theory. Instead, Title IX coverage for the whole undergraduate
institution at Grove City College is premised on the congressional
intent that BEOG moneys would provide aid for the college or
university as a whole. Therefore, whatever merit the Court's
argument may have for federal moneys that are intended solely to
benefit a particular aspect of an educational institution, such
as
Page 465 U. S. 603
a research grant designed to assist a specific laboratory or
professor,
see 465
U.S. 555fn3/3|>n. 13,
supra, the freeing-up theory
is simply irrelevant when the federal financial assistance is meant
to benefit the entire institution.
Third, the Court contradicts its earlier recognition that BEOG's
are no different from general aid to a college or university by
claiming that "[s]tudent financial aid programs . . . are
sui
generis."
Ante at
465 U. S. 573.
Although this assertion serves to limit severely the effect of the
Court's holding, it is wholly unexplained, especially in light of
the forceful evidence of congressional intent to the contrary.
Indeed, it would be more accurate to say that financial aid for
students is the prototypical method for funneling federal aid to
institutions of higher education.
Finally, although not explicitly offered as a rationale, the
Court's holding might be explained by its willingness to defer to
the Government's position as it has been represented to this Court.
But until the Government filed its briefs in this case, it had
consistently argued that Title IX coverage for the entire
undergraduate institution operated by Grove City College was
authorized by the statute.
See ante at
465 U. S. 562,
n. 10, 570. The latest position adopted by the Government,
irrespective of the motivations that might underlie this recent
change, is therefore entitled to little, if any, deference.
Cf.
North Haven, 456 U.S. at
456 U. S.
522-523, n. 12,
456 U. S. 538-539, n. 29 (deference not appropriate when
"there is no consistent administrative interpretation of the Title
IX regulations"). The interpretation of statutes as important as
Title IX should not be subjected so easily to shifts in policy by
the executive branch.
III
In sum, the program-specific language in Title IX was designed
to ensure that the reach of the statute is dependent upon the scope
of federal financial assistance provided to an institution. When
that financial assistance is clearly
Page 465 U. S. 604
intended to serve as federal aid for the entire institution, the
institution as a whole should be covered by the statute's
prohibition on sex discrimination. Any other interpretation clearly
disregards the intent of Congress and severely weakens the
antidiscrimination provisions included in Title IX. I therefore
cannot join in Part III of the Court's opinion.
[
Footnote 3/1]
There is much to commend the suggestion, made by JUSTICE
STEVENS, that
465 U. S.
unnecessary to the resolution of this case and unsupported by any
factual findings made below.
See ante p.
465 U. S. 579
(concurring in part and concurring in result). Because the Court
has not heeded that suggestion, however, I feel compelled to
express my view on the merits of the issue decided by the
Court.
[
Footnote 3/2]
The prohibitory section of Title VI provides that
"[n]o person in the United States shall, on the ground of race,
color, or national origin, be excluded from participation in, be
denied the benefits of, or be subjected to discrimination under any
program or activity receiving Federal financial assistance."
For reasons explained
infra, at
465 U. S.
585-586, the version of Title IX that was eventually
enacted by Congress is for all relevant purposes identical to this
provision.
See ante at
465 U. S. 557,
n. 1, for the text of Title IX.
[
Footnote 3/3]
Also during those hearings, representatives of the Executive
Branch first raised objections about the expansive reach of the
proposal being considered by the Subcommittee. Specifically, it was
noted by witnesses testifying on behalf of the Department of
Health, Education, and Welfare that the proposed legislation would
apply to institutions that were traditionally noncoeducational and
to facilities and services within an institution, such as
dormitories or physical recreation areas, that might properly be
limited to one sex.
See, e.g., 1970 Hearings, at 657
(statement of Peter Muirhead, Associate Commissioner for Higher
Education).
See also id. at 674 (statement of Frankie M.
Freeman, Commissioner, U.S. Commission on Civil Rights). To
eliminate this alleged overreaching, the Department of Justice
offered its own legislation that was recognized at the time as far
narrower in its reach than the Subcommittee's proposal.
Nonetheless, even with this more limited scope, the alternative
offered by the administration would have prohibited sex-based
discrimination by a "recipient of Federal financial assistance for
any education program or activity," H.R. 5191, 92d Cong., 1st
Sess., 1001(a) (1971), and would have covered facilities or
services at educational institutions that did not themselves
receive direct educational grants.
See, e.g., 1970
Hearings, at 678 (testimony of Jerris Leonard, Assistant Attorney
General, Civil Rights Division). The administration proposal was
eventually rejected by the full House in favor of the bill reported
by Representative Green and her Subcommittee.
[
Footnote 3/4]
See also 117 Cong.Rec. 30408 (1971) ("I doubt very much
whether even one institution of higher education today, private or
public, is not receiving some Federal assistance") (remarks of Sen.
Bayh).
[
Footnote 3/5]
See, e.g., 110 Cong.Rec. 7100-7101 (1964) (remarks of
Sen. Javits);
id. at 8359-8361 (remarks of Sen. Eastland);
id. at 13331 (remarks of Sen. Gore).
[
Footnote 3/6]
See, e.g., id. at 7059 (1964) (remarks of Sen.
Pastore);
id. at 7063 (remarks of Sen. Pastore);
id. at 7067 (remarks of Sen. Ribicoff);
id. at
8507-8508 (remarks of Sens. Smathers and Allott);
id. at
12714-12715 (remarks of Sen. Humphrey);
id. at 12818
(statement of Sen. Dirksen);
id. at 14330-14331 (remarks
of Sen. Williams).
[
Footnote 3/7]
Another illustration included in the Department's Title VI
regulations referred explicitly to federal moneys granted to
elementary and secondary schools:
"In the Federally affected area programs . . . for construction
aid and for general support of the operation of elementary or
secondary schools, or in programs for more limited support to such
schools such as for the acquisition of equipment, the provision of
vocational education, or the provision of guidance and counseling
services, discrimination by the recipient school district in any of
its elementary or secondary schools in the admission of students,
or in the treatment of its students in any aspect of the
educational process, is prohibited. In this and the following
illustrations, the prohibition of discrimination in the treatment
of students . . . includes the prohibition of discrimination among
the students . . . in the availability or use of any academic,
dormitory, eating, recreational, or other facilities of the grantee
or other recipient."
45 CFR § 80.5(b) (1972).
[
Footnote 3/8]
In
North Haven, we concluded that the word "it" in this
sentence refers to "education program or activity," rather than
"recipient." 456 U.S. at
456 U. S. 539,
n. 30. Even with this limiting construction, however, the
regulations still apply to any education program or activity which
"receives or benefits" from federal assistance. In any event, given
the Department's own interpretation of the words quoted in the
text, our limiting construction may have been unjustified.
See HEW Fact Sheet Accompanying Final Title IX Regulation
Implementing Education Amendments of 1972, p. 3 (June 1975)
("Except for the specific limited exemptions set forth below, the
final regulation applies to all aspects of all education programs
or activities of a school district, institution of higher
education, or other entity which receives Federal funds for any of
those programs").
[
Footnote 3/9]
The sponsor of this second resolution explained the basis for
his proposal to his Senate colleagues:
"[T]here is not a college athletic department anywhere in the
country that receives Federal funds. The intercollegiate athletics
provisions of the regulations are thus inconsistent with the
statute, in that they impose requirements on college programs not
receiving Federal assistance."
"HEW attempts to surmount this obvious inconsistency through
recourse to semantics. The statute clearly refers to programs
receiving Federal assistance, and the courts have established that
programs are in fact separable. Yet HEW argues, when pressed, that
its authority includes not only those programs actually receiving
Federal assistance, but those which indirectly benefit from that
assistance as well. Thus, according to this tortious logic, college
football receives Federal assistance because it may benefit
indirectly from federally guaranteed student loans unrelated to
athletics or a student athlete may use the school library whose
construction was assisted by Federal funding. Needless to say, this
is a rather slender reed upon which to base a social policy of this
magnitude."
121 Cong.Rec. 22941 (1975) (remarks of Sen. Laxalt).
Despite this rhetorical flourish, Congress has consistently
endorsed the Department's regulation of college athletic programs,
and indeed has affirmatively required such regulations.
See,
e.g., Pub.L. 93-380, § 844, 88 Stat. 612 ("The Secretary shall
prepare and publish . . . proposed regulations implementing the
provisions of title IX . . . relating to the prohibition of sex
discrimination in federally assisted education programs which shall
include with respect to intercollegiate athletic activities
reasonable provisions considering the nature of particular
sports").
See also Brief for Council of Collegiate Women
Athletic Administrators as
Amicus Curiae 4-16.
Cf.
Haffer v. Temple University, 524 F.
Supp. 531 (ED Pa.1981),
aff'd, 688 F.2d 14 (CA3 1982).
The opinion for the Court, limited as it is to a college that
receives only "[s]tudent financial aid . . . [that] is sui
generis,"
ante at
465 U. S. 573, obviously does not decide whether
athletic programs operated by colleges receiving other forms of
federal financial assistance are within the reach of Title IX.
Cf. 688 F.2d at 15, n. 5 (discussing the many forms of
federal aid received by Temple University and its athletic
department).
[
Footnote 3/10]
See also e.g., 1975 Hearings, at 90 (testimony of Kathy
Kelly, President, U.S. National Student Association);
id.
at 163-166 (testimony of Rep. Mink);
id. at 187-191
(memorandum of American Law Division, Library of Congress);
id. at 191-196 (memorandum of Center for National Policy
Review);
id. at 284-285 (statement of Norma Raffel, Head,
Education Committee, Women's Equity Action League);
id. at
385-388 (testimony of Dr. Bernice Sandler, Director, Project on the
Status and Education of Women, Association of American Colleges).
But see, e.g., id. at 49 (testimony of Darrell Royal,
President, American Football Coaches Association);
id. at
98-99 (testimony of John A. Fuzak, President, National Collegiate
Athletic Association);
id. at 231-232 (statement of Dallin
H. Oaks, President, Brigham Young University);
id. at
403-406 (testimony of Janet L. Kuhn).
[
Footnote 3/11]
The Secretary specifically cited and quoted from
Bob Jones
University v. Johnson, 396 F.
Supp. 597 (SC 1974),
affirmance order, 529 F.2d 514
(CA4 1975), a decision interpreting the application of Title VI to
a college that enrolled students receiving veterans' educational
benefits. The court in
Bob Jones offered several reasons
to justify its finding that the college's educational program was
receiving federal assistance:
"First, payments to veterans enrolled at approved schools serve
to defray the costs of the educational program of the schools,
thereby releasing institutional funds which would, in the absence
of federal assistance, be spent on the student. . . ."
"[S]econd . . . the participation of veterans who -- but for the
availability of federal funds -- would not enter the educational
programs of the approved school benefits the school by enlarging
the pool of qualified applicants upon which it can draw for its
educational program."
"Finally, . . . [g]rant programs frequently use institutions as
conduits through which federal funds or other assistance pass to
the ultimate beneficiaries. Clearly, Title VI attaches to a
recipient acting in that capacity. . . . The altered method of
payment under the current statutes [under which federal moneys go
directly to the students] does not change the nature of the program
or the basic role of the schools participating in the program. . .
. [T]he nondiscriminatory participation of these schools is
essential if the benefits of these statutes are to flow to
beneficiaries without regard to race."
396 F. Supp. at 602-603 (footnotes omitted). The court also
explained that coverage of the college's educational program was
fully consistent with the congressional purpose underlying Title
VI.
See id. at 604.
[
Footnote 3/12]
In 1974, after the Department had published its proposed
regulations for Title IX, the Congress excepted social fraternities
and sororities and voluntary youth service organizations from the
statute's reach. Pub.L. 93-568, § 3(a), 88 Stat. 1862 (codified at
20 U.S.C. § 1681(a)(6));
see 120 Cong.Rec. 41390-41394
(1974). Later, in 1976, Congress provided statutory exemptions for
activities related to Boys/Girls State/Nation conferences,
father-son or mother-daughter activities (if reasonable
opportunities exist for the opposite sex), and collegiate
scholarships awarded to "beauty" pageant winners. Pub.L. 94-482, §
412(a), 90 Stat. 2234 (codified at 20 U.S.C. §§ 1681(a)(7-9));
see 122 Cong.Rec. 27979-27987 (1976). Obviously, since
none of these activities receive direct federal support, these
amendments would have been superfluous unless Title IX was
otherwise to be applied to such activities when conducted by
educational institutions receiving federal funds.
Other congressional developments since the issuance of the
Department's regulations, which have not resulted in amendments to
the statute, lend even more support to the broader view of Title
IX. After the Department's final regulations went into effect in
1975, for example, Senator Helms introduced amendments to Title IX
which would have defined "education programs and activities" to
mean "only programs or activities which are an integral part of the
required curriculum of an educational institution." S. 2146, §
2(1), 94th Cong., 1st Sess. (1975);
see 121 Cong.Rec.
23845-23847 (1975). No action was taken on the bill. Similarly, in
1976, Senator McClure sponsored an amendment to define "education
program or activity" as "such programs or activities as are
curriculum or graduation requirements of the institutions."
Amendment No. 389 to S. 2657, 94th Cong., 2d Sess. (1976);
see 122 Cong.Rec. 28136 (1976). This amendment was
rejected in a recorded vote.
Id. at 28147. Finally, the
98th Congress has recently reaffirmed its commitment to Title IX
and to the regulations originally issued thereunder. In particular,
the House passed (414-8) a resolution expressing its belief that
Title IX and its regulations
"should not be amended or altered in any manner which will
lessen the comprehensive coverage of such statute in eliminating
gender discrimination throughout the American educational
system."
H.Res.190, 98th Cong., 1st Sess. (1983); 129 Cong.Rec.
H10085-H10095, H10100-H10101 (Nov. 16, 1983).
See H.R.Rep.
No. 98-418 (1983).
See also S.Res. 149, 98th Cong., 1st
Sess. (1983). After today's Court decision, it will take another
reaffirmation of congressional intent, in the form of a clarifying
amendment to Title IX, to ensure that the original legislative will
is no longer frustrated.
[
Footnote 3/13]
Because I believe that BEOG moneys are intended by Congress to
benefit institutions of higher education in their entirety, I find
it unnecessary in this case to decide whether Title IX's reach
would be the same when more targeted federal aid is being received
by an institution. For such cases, it may be appropriate to examine
carefully not only the purposes, but also the actual effects of the
federal moneys received.
[
Footnote 3/14]
Although JUSTICE STEVENS properly notes that there have been no
findings of fact on this particular point,
see ante at
465 U. S.
680-581 (concurring in part and concurring in result),
even the Court is forced to concede the obvious,
see ante
at
465 U. S. 573
("It is true, of course, that substantial portions of the BEOG's
received by Grove City's students ultimately find their way into
the College's general operating budget, and are used to provide a
variety of services to the students through whom the funds pass").
The Court nonetheless ignores its own concession by claiming that
there is "no persuasive evidence" that Congress intended to cover
an entire institution of higher education in this situation. As I
explain in
465 U. S.
however, the evidence of congressional intent is quite persuasive,
if not convincing.