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EXECUTIVE OFFICE OF THE PRESIDENT
OFFICE OF MANAGEMENT AND BUDGET
ROUTE SLIP
John Svahn
TO Mike Horowitz
Take necessary action
\
Jim Cicconi
Approval or signature
Allen Meyer
Comment
Fred Fielding
Barry White
Prepare reply
Lee Verstandig
Discuss with me
N. Sweeney
Mike Uhlmann
For your information
Karen Wilson
K. Cribb
See remarks below
N. Risque
FROM
BD
Branden Blum (x3802)
DATE 6/4/84
REMARKS
Education Draft Testimony on S. 2568, the Civil
Rights Act of 1984
The attached testimony, a copy of which has been
forwarded to Justice, is for a hearing at 2:00 P.M.
tomorrow before a subcommittee of the Senate Judiciary
Committee. (Justice testimony for the same hearing
was circulated earlier today.)
Please review and provide me with any comments ASAP.
Attachment
CC: J. Murr
OMB FORM 4
Rev Aug 70
DRAFT
Mr. Chairman and members of the Subcommittee, I appreciate the
opportunity to testify on S. 2568, the Civil Rights Act of 1984.
This legislation could have a tremendous impact on all phases of
civil rights activity in this country, and I'm hopeful that the
spirit of deliberation and thoughtfulness that has marked the
Senate hearings thus far can be extended through the markup,
floor debate, and conference work on the bill.
I emphasize at the outset that with the benefits and privileges
of Federal aid come certain responsibilities, primary among which
is the duty to ensure that those funds are not used to support
unlawful discrimination in any way.
In the course of the debate on this bill it has been suggested by
some that this Administration is somehow less committed to this
principle than its predecessors. I want to make it clear to the
members here, to the public, and to people within the educational
community that we will continue to act quickly and forcefully to
take appropriate enforcement actions against discrimination. To
this end, we would welcome and can support enactment of legis-
lation that would broaden the narrow civil rights coverage
generated by the Supreme Court's Grove City decision.
As this Subcommittee knows, the Department of Education's Office
for Civil Rights has closed 18 higher education cases and 4
elementary and secondary education cases because of the Grove
City opinion's construction of the term "program or activity" in
the civil rights statutes. I want to state that we will take
every possible step to reopen these cases upon the enactment of
legislation that deletes the "program or activity" limitation.
Thus, we all, I believe, have a common goal. As we read the
congressional debate and testimony, there is no policy difference
between the Administration and the sponsors of S. 2568 on the
goal to return the civil rights laws coverage to its status
before the Supreme Court's Grove City decision.
However, we are concerned about ambiguous provisions in S. 2568
which we fear will lead down the road to expansive judicial
interpretations that were neither intended nor perhaps even
foreseen by the sponsors of the bill. Of greatest concern to us
is new language in the bill's definition of "recipient." It has
been stated by some witnesses that the language is essentially
identical to that in the existing civil rights regulations and
that, therefore, the scope of coverage will be identical to the
pre-Grove City situation. The bill is not identical to those
regulations.
- 2 -
First, the final clause of the definition of recipient indicates
that "recipient" includes any entity "which receives support from
the extension of federal financial assistance to any of its
subunits." This language is not in any of the existing
regulations. Moreover, the bill does not define the term
"subunit" or what constitutes "receiving support." How will the
courts interpret this new language?
Under our postsecondary programs will aid to a particular campus
of a multi-campus university result in coverage of the entire
university system, including all of its campuses? If so, the
bill expands pre-Grove City coverage. Would aid to a State
educational agency or local educational agency subject all
agencies and subdivisions of the State to coverage on the theory
that the aid indirectly supports the State? These are only some
of the difficult questions that courts would have to decide.
Second, the bill adds parenthetical language providing, in
effect, that aid to an entity includes aid to its subunits.
Under the existing regulations, subunits of particular
educational agencies already would be covered. The new language
may be interpreted to expand coverage by extending it from one
public agency to another, particularly in the case of programs
administered by other Federal departments.
- 3 -
Lastly, the bill deletes "ultimate beneficiary" language from the
definition of "recipient" in the existing Title VI and Section
504 regulations. This omission could leave open the possibility
of some of the "worst case" scenarios regarding individual Pell
Grant, food stamp, or social security recipients which have been
raised in the course of recent House and Senate hearings.
Although testimony before this Subcommittee suggests that this
problem has been remedied by the deletion of "individuals" from
the definition of recipient, we do not believe "individuals"
should be deleted from the definition because they are eligible
for project grants under some of the Department of Education
programs such as the Women's Educational Equity Act.
Let me be clear that I'm not predicting that S. 2568 as currently
written would have all these effects. But I don't believe that
anyone, including the members of this Subcommittee, can give any
reasonable assurance that it won't. Sponsors of the bill
emphasize that their only intent is to restore pre-Grove City
civil rights coverage and maintain that courts would heed that
intent. But they acknowledge that we need this bill because the
Supreme Court misunderstood Congress' original intent in enacting
Title IX.
- 4 -
Common sense tells me that when Congress adds new language that
changes a long-standing statute or regulation, it naturally would
be assumed that the change will, in fact, effect a change in the
law. It can't be denied that S. 2568 changes and adds to the
definition of recipient in the existing civil rights regulations.
Those changes raise significant ambiguities.
In effect, S. 2568, because of these ambiguities, sends the issue
of the scope of civil rights coverage back to the courts. Under
the bill, it is the 500 federal district court judges, the 140
circuit court judges, and the Supreme Court that will determine
just how far these laws extend. The language of S. 2568, by
going beyond the existing regulations, opens the door for the
courts to make expansive interpretations of the coverage of the
civil rights statutes in ways that overstep commonly accepted
notions of federalism. And, no matter how the courts ultimately
come out, the bill surely will result in increased litigation and
in uncertainty for public and private agencies that need to know
the extent of their civil rights obligations. In my
conversations with dozens of representatives of the higher
education community, one thought has overshadowed all others--
the need for uniformity and certainty in the application and
enforcement of these statutes.
- 5 -
Mr. Chairman, I don't believe that there are irreconcilable
differences with this bill that can't be worked out. I do
believe that we can draft a bill that will remove the concerns of
the Grove City decision and maintain an effective civil rights
policy in the years to come, but which will avoid the sweeping
legal implications of vastly expanded federal involvement in
State, local and private affairs.
Mr. Chairman, I appreciate the opportunity to present some of our
concerns today. The Department is more than willing to assist
you and your colleagues on this matter, and I'd be happy to
answer any questions you might have.
- 6 -
U.S. Department of Justice
Office of Legislative and Intergovernmental Affairs
IDENTICAL SUBMISSION TO
HON. ORRIN G. HATCH, CHAIRMAN
SENATE COMMITTEE ON LABOR AND HUMAN RESOURCES
Office of the Assistant Attorney General
Washington, D.C. 20530
May 24, 1984
Honorable Carl D. Perkins
Chairman
Committee on Education and Labor
U.S. House of Representatives
Washington, D.C. 20515
Dear Mr. Chairman:
This presents the views of the Department of Justice on
S. 2568 and H.R. 5490, the proposed "Civil Rights Act of
1984." 1/ The bill would amend Title IX of the Education
Amendments of 1972, 2/ Section 504 of the Rehabilitation Act
of 1973 ("Section 504"), 3/ the Age Discrimination Act of
1/ H.R. 5490 is in all respects identical to S. 2568. For
the sake of convenience, we refer to them interchangeably as
"S. 2568" or "the bill."
2/
No person in the United States shall, on
the basis of sex, be excluded from parti-
cipation in, be denied the benefits of, or be
subjected to discrimination under any educa-
tion program or activity receiving Federal
financial assistance
....
20 U.S.C. S 1681.
3/
No otherwise qualified handicapped individual
in the United States ... shall, solely by
reason of his handicap, be excluded from the
participation in, be denied the benefits of,
or be subjected to discrimination under any
program or activity receiving Federal finan-
cial assistance
....
29 U.S.C. § 794.
1975 ("ADA"), 4/ and Title VI of the Civil Rights Act of
1964, 5/ all of which prohibit certain types of discrimination
in federally assisted programs. This memorandum sets forth
the background and what we perceive to be the possible effects
of the amendments. We use Title VI, after which the other
three statutes were patterned, to illustrate the proposed
changes. We then discuss the constitutional issues raised by
the bill. On the basis of this analysis, we conclude that
the proposed amendments are not facially unconstitutional.
Nevertheless, ambiguities in the language of the proposed
amendments raise significant questions concerning their
intended scope and application. Absent a clear statement in
the language of the amendments or their legislative history,
the courts will ultimately have to determine the proper
extent and operation of the amendments. We have therefore
examined the case law concerning the constitutional bases for
such legislation -- the Spending Clause and Section 5 of
the Fourteenth Amendment -- in order to evaluate how courts
are likely to interpret the amendments and what limits, if
any, the courts are likely to impose on them.
[With certain exceptions] no person shall,
on the basis of age, be excluded from parti-
cipation in, be denied the benefits of, or
be subjected to discrimination under, any
program or activity receiving federal finan-
cial assistance.
42 U.S.C. § 6102.
5/ Title VI prohibits discrimination on the basis of race,
color, or national origin in federally assisted programs. 42
U.S.C. § 2000d (quoted at p. 4 infra.)
6/ See, e.g., Cannon V. University of Chicago, 441 U.S. 677,
694 (1979) (Title IX patterned after Title VI); NAACP V.
Medical Center, Inc., 657 F.2d 1322, 1331 (3d Cir. 1981) (en
banc) ( § 504 and ADA patterned after Title VI). The four
statutes are listed here in the order that they appear in the
bill. The Appendix to this report contains the full text of
every provision that S. 2568 would amend, reflecting both
existing and proposed language.
- 2 -
We have encountered considerable difficulty in interpret-
ing a bill of such sweeping scope as S. 2568 without the
benefit of full legislative history. Judging from discrepancies
between the sponsors' explanations and the actual language of
the bill, it is apparent that the consequences of this major
legislation have not yet been fully considered by the Congress.
The bill is amenable to interpretations that would reach far
beyond the sponsors' declared purpose -- to overturn Grove
City College V. Bell, 104 S. Ct. 1211 (1984). We conclude
that, while we express no view as to the necessity or wisdom
of such legislation, there are alternatives to S. 2568 and
H.R. 5490 that would accomplish the objective of overturning
Grove City without risking upheaval of the entire civil
rights landscape which has developed through twenty years of
administrative and judicial efforts.
Whatever the intent of Congress in this area, because of
the importance and potential impact of this legislation, we
strongly recommend that Congress develop fully the legislative
history, including committee hearings and reports. Potentially
affected state and local government representatives and
private sector recipients of federal financial assistance
might be an appropriate source from which to seek views as to
how the legislation would actually affect such entities. A
thorough legislative analysis of this proposal will aid in
reducing ambiguities and misunderstanding of the legislation
and perhaps minimize lengthy judicial challenges to it.
I
BACKGROUND
The four civil rights statutes which the bill proposes
to amend share a common design, having two basic elements:
substantive coverage and an enforcement provision. The former
defines what conduct is prohibited, while the latter sets out
procedures for sanctions in the event of noncompliance. In
the existing statutes, all fashioned after Title VI, as well
as in the proposed amendments, these two aspects of the
statutory scheme are treated distinctly.
- 3 -
Section 601 of the Civil Rights Act of 1964, the substantive
prohibition of Title VI, currently provides that:
No 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 subject
to discrimination under any program or
activity receiving Federal financial
assistance.
42 U.S.C. § 2000d (emphasis added).
Section 602, the enforcement provision, currently provides
that compliance may be effected by a termination of federal
assistance under a program or activity, upon a finding of
noncompliance,
but such termination
...
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.
42 U.S.C. § 2000d-1(1) (emphasis added). Alternatively,
compliance may be effected "by any other means authorized by
law." Id. § 2000d-1(2).
Although the fund-termination authority has rarely been
invoked, 7/ disagreement arose as to whether the "program-
specific" language of § 602 was intended also to limit the
scope of the nondiscrimination mandate of § 601. Thus, some
courts determined that § 601 was intended to prohibit all
discrimination by recipients of federal aid. See, e.g.,
7/ More common have been cases brought under § 1983, which
permits private suits for state deprivations of rights secured
by the Constitution and laws of the United States. 42 U.S.C.
S 1983. Because early Title VI cases were generally brought
against state school districts, the substantive prohibitions
of Title VI could be enforced by means of actions under
§ 1983. See, e.g., Singleton V. Jackson Municipal Separate
School Dist., 355 F.2d 865 (5th Cir. 1966). Additionally,
Title VI has been enforced through private causes of action.
See p. 15, infra.
- 4 -
Flanagan V. President and Directors of Georgetown College,
417 F. Supp. 377 (D.D.C. 1976) (by accepting federal aid for
building construction, school was required under Title VI to
refrain from discriminating in all services and benefits
provided to students). Others found that § 601 proscribed
only discrimination in the particular program which received
the federal aid. See, e.g., Stewart V. New York Univ., 430
F. Supp. 1305, 1314 (S.D.N.Y. 1976) (Title VI plaintiff must
show "some material connection" between federal aid and
alleged discrimination). Those who espoused the former view,
extending private sanctions to all activities of a recipient,
found support in the overall objective of the Civil Rights
Act of 1964. See 110 Cong. Rec. 1521 (1964) (remarks of Rep.
Celler) (to eradicate the "moral outrage of discrimination").
The latter, more restrictive, view found support both in the
"pinpoint" approach of § 602 and in the narrower policy
expressed by Senator Humphrey during the floor debates on the
Civil Rights Act of 1964:
"Simple justice requires that public funds,
to which all taxpayers of all races contri-
bute, not be spent in any fashion which
encourages, entrenches, subsidizes, or
results in racial discrimination."
110 Cong. Rec. 6543 (1964) (Sen. Humphrey, quoting from
President Kennedy's message to Congress, June 19, 1963).
This dispute was recently resolved when the Supreme
Court adopted the less expansive view in Grove City College V.
Bell, 104 S. Ct. 1211, 1222 (1984). In that case, the Court
held that a college that accepts students who receive federal
financial aid is subject to Title IX only in the administration
of its financial aid program. Under the Grove City interpre-
tation of Title IX, which presumably will affect application
of the other three similar statutes as well, an institution
Although the precedential effect of Grove City on the
other three statutes is not altogether clear, we would antici-
pate that courts would continue to interpret each of the four
statutes by analogy to the others. For example, in concluding
[Footnote 8 continued on p. 6]
- 5 -
receiving federal aid in some of its departments would not be
found to be in violation of the substantive prohibitions of
the statute on the basis of discrimination in other programs.
The Court rejected the argument that the entire recipient
institution could be the 'program or activity" and therefore
be regulated in its entirety.
The sponsors of the bill purport to seek to overturn the
Grove City decision and require the nondiscrimination mandate
of § 601 and the similar provisions in the other three statutes
to apply to all recipients of federal assistance. They
assert their intention to "restore four major civil rights
statutes to the broad scope of coverage that was originally
intended by Congress and that has marked their administration
prior to [Grove City].' Cong. Rec. S4585 (Daily ed. Apr. 12,
1984) (joint explanation of Senators Kennedy and Packwood).
The bill proposes to effect this end by eliminating all
references to "program or activity" which characterize the
existing prohibitions and by replacing them with broad refer-
ences to "recipients" of federal aid.
[Footnote 8 continued]
that a private cause of action is available under Title IX,
the Supreme Court examined at great length the resolution of
the same issue under Title VI, and found that evidence highly
persuasive. Cannon V. University of Chicago, 441 U.S. 677,
694-709 (1979). See also NAACP V. Medical Center, Inc., 657
F.2d 1322, 1331 (3d Cir. 1981) (expressly adopting Title VI
standard in case brought under § 504 and ADA). The introduc-
tory legislative history of the bill contains a statement
suggesting that the bill's sponsors believe that the Depart-
ment of Justice enforcement efforts will proceed on the
assumption that the Grove City case is applicable to all four
statutes. Cong. Rec. S4589 (Daily ed. Apr. 12, 1984) (state-
ment of Sen. Packwood).
- 6 -
II
EFFECT OF THE AMENDMENTS
A. Prohibited Conduct
The first change in the operation of § 601 is to broaden
the class of entities to which the prohibition applies. In
contrast to the current S 601, which has now clearly been
interpreted to be program-specific, the amendment would
delete the words "under any program or activity receiving"
and simply substitute "by any recipient of" so that the
amended statute would provide:
No person in the United States shall, on
the ground of race, color, or national
origin, be excluded from participation,
be denied benefits, or be subjected to
discrimination by any recipient of Federal
financial assistance.
Under the bill,
the term 'recipient' means--
(1) any State or political subdivision
thereof, or any instrumentality of a State
or political subdivision thereof, or any
public or private agency, institution, or
organization, or other entity (including
any subunit of any such State, subdivision,
instrumentality, agency, institution, or-
ganization, or entity), and
(2) any successor, assignee, or transferee
of any such State, subdivision, instru-
mentality, agency, institution, organization,
or entity or of any such subunit,
to which Federal financial assistance is
extended (directly or through another entity
or a person), or which receives support from
the extension of Federal financial assistance
to any of its subunits.
#
- 7 -
S. 2568, 98th Cong., 2d Sess. (1984) (emphasis added). 9/ In
short, the prohibition on discrimination in a federally-aided
program or activity would be changed to prohibit any discrimi-
nation in any activity by a recipient of federal funds for
any of its activities.
One sponsor of S. 2568 explained the effect of the
"recipient" definition as follows:
Consistent with past agency practice, when
an entity receives federal aid for one of
its parts or subdivisions, the entity --
and not the specific subunit of the entity --
is the recipient. Thus, in place of "program-
specific" coverage as defined by the Supreme
Court, the statutes will apply to all com-
ponent parts of the recipient.
*
*
*
*
*
Example: A state prison receives federal
funding to develop a better inmate classifi-
cation system, and no other federal assis-
tance. Its education activities and related
benefits, such as classes and training programs,
are covered by Title IX. The entire
prison -- including its educational pro-
grams -- would be covered by Title VI,
Section 504, and the ADA, because it is a
recipient of federal funding and those
statutes are not limited to education.
Cong. Rec. S4586 (Daily ed. Apr. 12, 1984) (statement of Sen.
Kennedy).
This language is similar to the existing definition of "re-
cipient" under Title VI regulations: "any State, political sub-
division of any State, or instrumentality of any State or political
subdivision, any public or private agency, institution, or organi-
zation, or other entity, or any individual, in any State, to whom
Federal financial assistance is extended, directly or through another
recipient, for any program, including any successor, assign, or
transferee thereof, but such term does not include any ultimate
beneficiary under any such program." 28 C.F.R. S 42.102 (f) (1983).
- 8 -
By proscribing discrimination against any person by a
recipient of federal aid, broadly defined, the bill would
reverse the result of Grove City. The amended statute would
prohibit discrimination in any endeavor sponsored by a grantee
of federal aid, including those activities that receive no
federal aid. The sponsors of S. 2568 claim that this result
(the simple reversal of Grove City) is the primary purpose of
the bill. See, e.g., Cong. Rec. S4589 (Daily ed. Apr. 12,
1984) (statement of Sen. Packwood) ; id. at S4592 (statement
of Sen. Cranston); id. at E1661 (statement of Rep. AuCoin);
id. at E1681 (statement of Rep. Johnson).
It seems clear, however, that the bill could potentially
have a much broader impact. In the first place, while the
bill has been characterized as restoring the original legisla-
tive intent behind this legislation, the Supreme Court found
that Congress had intended program-specific application.
Thus the bill, to the extent it does reverse Grove City,
widens materially the application of these federal statutes.
Second, the bill extends the nondiscrimination mandate (and
consequent reporting requirements) beyond merely the other
unfunded programs of the same federally assisted institution.
The combined effect of the change from program specificity to
a prohibition on the recipient and the new definition of
"recipient," is to impose the obligation not to discriminate
on related entities as well. In this regard, the bill would
expand substantive coverage beyond that necessary to accomplish
the mere reversal of Grove City in two ways: (1) by imposing
the nondiscrimination requirements upon an entire state, even
if only one program of one subunit receives federal funds, if
the state is deemed to "receive support" from the funds; and
(2) by imposing those requirements on every subunit of a
state if the state, directly or through any of its subunits,
receives any federal aid. 10/
10/ Additionally, the bill adopts a separate holding of Grove
City, that there is no substantive difference under Title IX
between direct institutional assistance and aid received by
a school through its students. 104 S. Ct. at 1217, 1220.
The sponsors of S. 2568 have lauded this result and have
included language in the bill to embody it. Cong. Rec. S4592
(Daily ed. April 12, 1984) (statement of Sen. Cranston). The
[Footnote 10 continued on p. 10]
- 9 -
In other words, the bill's definition of "recipient" is
so broad that it could be construed to render a large and
complex entity subject to the statutes as a result of the
[Footnote 10 continued]
language chosen to effect this outcome, however ("directly or
through another entity or a person"), suffers from the same
ambiguity that afflicts the bill as a whole. It is going to
be very difficult to determine, without detailed legislative
history, when an entity, including a successor, assignee
or transferee entity, receives aid "through another entity or
a person." The sponsors appear to hold the view that this
undefined standard would exclude from the definition of
"recipient" "ultimate beneficiaries such as food stamp recipi-
ents or student [s] receiving Federal loans," id. at S4590
(statement of Sen. Dole); "the landlord whose tenant pays the
rent with federal public assistance funds, the clothing store
that is paid for a shirt with a Social Security check, id.
at S4586 (statement of Sen. Kennedy); and other similarly
situated "individuals and businesses which may ultimately
receive federally provided dollars." Id. at S4595 (statement
of Sen. Cranston). The term "ultimate beneficiary" in these
examples is used inconsistently to mean either an individual
receiving federal funds or a business or institution receiving
them from the individual. This limitation, which suffers
from latent ambiguities of its own, especially in the examples
recited, appears to be derived from existing Title VI regula-
tions, which expressly exclude any "ultimate beneficiary"
under federal assistance programs. See n.9 supra. We are
unaware, however, of any statutory language which would lead
an agency or a court to exclude these or other classes of
beneficiaries from the reach of the statute. Nor are we
aware of any explanation for why the definition of "recipient"
in the bill, which apparently is modeled on the regulatory
definition of this term contained in 28 C.F.R. § 42.102 (f)
(1983), supra n.9, fails to adopt that regulation's express
provision that "recipient" "does not include any ultimate
beneficiary under any such program.' Id. The omission of
this language might well lead a court construing the bill's
definition to conclude that Congress did intend to reach the
"ultimate benficiary," whatever that term means.
- 10 -
receipt of funds by its most insignificant component, depending
upon how a court construed the term "receives support." The
bill makes no attempt to define that term. The broadest
construction would be that, by accepting federal aid to one
state activity, the recipient state's treasury is facilitated
in its ability to support other activities. The state would
thus "receive support" from any amount of federal aid.
Although currently, if a federal agency extends federal
assistance, for example, to a state university system, the
broadest conceivable claim would be that the entire university
system is a covered "program" within the meaning of these
statutes, under the bill, it is not just the university that
comes within the statutes. The bill could encompass all other
state departments and agencies -- whether or not they are
educational or perform an education service -- that can be
shown to have eventually received some of the university
funds (directly or indirectly) or to have received support
from the existing funding arrangements.
The bill's sponsors have not specifically advocated this
result, but they have emphasized repeatedly the "broad and
comprehensive" coverage that the bill is intended to effect.
On the basis of this legislative sentiment, a court might
feel compelled to give the amended statute the broadest
interpretation that is consistent with its plain language.
The definition of "recipient" contains no words of limitation
other than "receives support," an ambiguous safeguard at
best. 11/
11/ It is possible that the term could be read more narrowly
than we have described. A court could consider the ostensible
purpose of the bill -- to reverse the Grove City decision,
which involved a private institution -- and conclude that
receipt of assistance should be attributed vicariously only
within the confines of a discrete institution. A court could
adopt this approach on the presumption that Congress would
not create such significant changes in major civil rights
legislation without, at the very least, clearly expressing
its intention to do so. Arguing against such an approach,
however, is the fact that Congress could have achieved the
mere reversal of Grove City in much narrower terms. If
Congress nevertheless passed the more expansive provisions
contained in this bill, a court might reasonably conclude
that it intended to reach a multitude of new classes of
recipients.
- 11 -
By the same token, the bill characterizes a subunit as a
"recipient" if its parent unit receives federal aid. Thus if
a state were to receive any aid, directly or indirectly,
apparently every political subdivision and each of its compo-
nent parts -- that is to say, the entire structure of a state,
including its county and municipal components and the tens of
thousands of different units of local governments in this
nation (see City of Lafayette V. Louisiana Power & Light Co.,
435 U.S. 389, 407-08 (1978)) -- could be included in the
coverage of the statute. This broad sweep of the statutory
application represents a substantial departure from past
practice, and seems to create uncertainty and potential
liability far beyond what is needed to reverse Grove City.
To summarize, the bill clearly creates the possibility
that states, cities, counties -- and even perhaps municipal
corporations, state-owned utilities and water districts --
could be required to submit to the requirements of the four
statutes as a result of federal aid to one program. As we
are aware of no state in the country that does not receive
some federal assistance to at least some of its activities,
we believe the bill is capable of surpassing any precedent in
imposing federally determined standards upon state and local
governments.
Thus, far from "restoring" coverage under the four
statutes to their original reach, as represented, the bill
potentially does precisely what the framers of the initial
legislation were careful to avoid: it "spread[s] the tentacles
of the Federal Government to choke off all State activity."
110 Cong. Rec. 7059 (1964) (Sen. Pastore). Although there
are many considerations that could restrain the courts from
permitting the expansive application (see Part III, infra),
the bill unnecessarily leaves to them the resolution of this
vital issue.
B. Enforcement
1. Termination of funds
In addition to expanding the coverage of the non-
discrimination provisions, the bill makes significant changes
in the standards of enforcement of the Act. As amended by
the bill, the statute would allow compliance to be effected,
as before, by fund termination,
- 12 -
but such termination or refusal shall be
limited in its effect to the particular
assistance which supports such noncompliance
so found, or
by any other means
authorized by law.
S. 2568, § 5(b) (emphasis added).
Thus, the bill replaces the current language, limiting
fund termination to "the particular program" in which
noncompliance has been found, with new language limiting
termination only to "the particular assistance which supports"
noncompliance, ostensibly "retain[ing] the requirement that
a nexus be established between the discrimination found and
any federal funding
Cong.
Rec.
S4587
(Daily
ed.
Apr. 12, 1984) (joint explanation of Senators Kennedy and
Packwood).
The sponsors have asserted that "[t]his bill does not change
the enforcement structure and remedial tools available before
Grove City raised questions about the statutes." Id. However,
the ambiguous language of the amendments to the enforcement
provision is subject to an interpretation that goes far beyond
the enforcement scheme in place prior to Grove City. The new
bill, by deleting the "particular program" language, could be
construed to mean that "assistance which supports" discrimina-
tion encompasses all federal aid to an entity of which a
subunit has violated the Act. That reading would deem any
aid to the whole as "assisting" in the derelictions of the part,
or conversely. Under this interpretation, discrimination by
a single subunit or instrumentality of a state could result
in termination of all federal aid to the state, including aid
to its other subunits or instrumentalities not in violation.
This broad potential for eliminating federal assistance
programs would severely undermine the original intent of the
program-specific limitation in Title VI, which "was not for
the protection of the political entity whose funds might be
cut off, but for the protection of the innocent beneficiaries
of programs not tainted by discriminatory practices." Board
of Public Instruction V. Finch, 414 F.2d 1068, 1075 (5th Cir.
1969) (emphasis by the court). Nor does this broad interpre-
tation appear to be consistent with the overall context of
the "assistance" phrase in the bill itself, the focus of
which is on limiting, rather than expanding, the scope of
funding termination as a sanction for noncompliance. Never-
- 13 -
theless, the bill does not specify in what respect a federal
grant to one entity could be deemed to "assist" in discrimina-
tion committed by related entities and consequently implicate
the vicarious termination requirement. 12/
On the one hand, the statements of the sponsors, 13/
indicating their intent to preserve the "pinpoint" approach
of the enforcement scheme, would counsel against imparting
the most expansive potential interpretation. On the other
hand, these generalized statements might not persuade a court
to limit the statutory language, because such a construction
would tend to render the amendatory language nugatory. A
court would be reluctant to construe a statutory amendment in
a way that merely preserves the effect of the prior law. See
Federal Ins. Co. V. Speight, 220 F. Supp. 90, 93 (E.D.S.C.
1963) ("The general rule is that a change in phraseology in-
dicates persuasively, and raises a presumption, that a depar-
ture from the old law was intended
The ambiguity of the bill on this critical question of
the cutoff standard will present courts and administrative
bodies with a difficult interpretative task, and will prevent
12/ The term "assistance which supports" could also be read
to authorize a narrower scope for termination than Title VI
currently allows. Theoretically, a single grant program
could be divided up into unaffected portions and portions
used in discriminatory activities; only the latter segments
of the grant would be terminated, rather than the entire
program. This reading, although consistent with the language
of the bill, is unlikely to prevail because it is contrary to
the avowed intentions of the bill's sponsors to impart a
broader coverage to Title VI. See, e.g., Cong. Rec. S4585
(Daily ed. Apr. 12, 1984) (joint explanation of Senators
Kennedy and Packwood).
13/ See, e.g., Cong. Rec. S2487 (Daily ed. Apr. 12, 1984)
(joint explanation of Senators Kennedy and Packwood) ("The
bill also retains the requirement that a nexus be established
between the discrimination found and any federal funding that
is to be terminated or suspended by the administrative agency
enforcing the law. id. at S4595 (statement of Sen. Cranston)
(bill "remains faithful to the original purpose of 'pinpointing').
- 14 -
beneficiaries of federal assistance from knowing the limits
of the obligations and potential liabilities they have
undertaken by receiving federal financial assistance. If the
sponsors intend merely to retain the present law on this point,
there is simply no need to change the operative language and
thereby create such interpretative problems. If they wish to
change it, it is unclear what the new language will require.
There are much simpler and clearer means to reverse the Grove
City decision without creating such uncertainty in the opera-
tive provisions of civil rights statutes that have been the
subject of twenty years of judicial interpretation.
2. Other Enforcement Options
In addition to providing for termination of funds, Title
VI provides that compliance may be effected "by any other
means authorized by law." 42 U.S.C. § 2000d-1(2). Two types
of "other" enforcement actions have developed under Title VI.
The Department of Justice may seek injunctive relief against
the offending agency. See Cong. Rec. S4586 (Daily ed. Apr.
12, 1984) (joint explanation of Senators Kennedy and Packwood).
In addition, an injured person may bring suit against a
grantee under a private cause of action. See Regents of the
Univ. of California V. Bakke, 438 U.S. 265, 419-21 (1978)
(opinion of Stevens, J.) (Title VI); Lau V. Nichols, 414 U.S.
563 (1974) (Title VI); Cannon V. University of Chicago, 441
U.S. 677, 709 (1979) (Title IX). Strictly speaking, the
applicability of these enforcement alternatives does not
appear to be limited by the program-specific language in the
existing provision relating to fund terminations. Recently,
however, the Supreme Court held that, because the existing
description of prohibited conduct itself imposes a "program-
specific" limitation, enforcement under the "other means"
clause is coextensive with the authority to terminate funds,
and thus is limited under existing law to the "particular
program" that has violated the statute. North Haven Board of
Education V. Bell, 456 U.S. 512, 538 (1982) (Title IX).
The bill has an effect on these private enforcement
alternatives as well as the fund-termination authority.
Because it removes the "program-specific" limitation both in
the nondiscrimination mandate of § 601 and in the granting
agencies' authority to issue enforcement regulations, enforce-
ment action taken "by any other means authorized by law"
- 15 -
would appear not to be limited to the particular program in which
noncompliance was found. Thus, the Department of Justice
could seek to enjoin the prohibited activity even though the
granting agency might not have authority to terminate funds.
The sponsors clearly intend to permit this discrepancy in the
two modes of enforcement. See Cong. Rec. S4595 (Daily ed.
Apr. 12, 1984) (statement of Sen. Cranston). Similarly, the
private cause of action for individuals seeking injunctive
relief would presumably remain as an available remedy against
any entity encompassed by the nondiscrimination provision.
See Cong. Rec. S4587 (Daily ed. Apr. 12, 1984) (joint explana-
tion of Senators Kennedy and Packwood) (bill intended to
preserve private rights of action).
III
ADMINISTRATIVE AND ENFORCEMENT PROBLEMS
Because of the broad coverage conferred by deleting the
concept of program specificity and expansively defining
"recipient, S. 2568 constitutes a qualitative reshaping and
possible enlargement of federal civil rights jurisidiction.
There are any number of examples that point up the bill's
potentially expansive reach. The bill could be construed so
that federal food stamp programs would subject participating
supermarkets and local grocery stores to federal civil rights
compliance reviews and complaint investigations. Pharmacies
and drug stores that participate in medicare/medicaid programs
could also be "recipients," as could the "transferee" of an
individual's social security check who, upon acceptance of
such payment, would have signed an open invitation to federal
enforcers to enter and investigate. The sponsors do not
appear to envision this result, see n.10, supra, but they
have not tailored the language of the bill to protect against
it.
State and local governments -- which under existing law
are subject to coverage of the federal statutes only within
their federally subsidized programs -- must, under the bill,
defer to federal civil rights oversight of all their programs
for their political subdivisions (funded and nonfunded) upon
receipt by any one program of a federal dollar. For example,
assume that a federal agency has proof that a city's police
department discriminates on the basis of handicap in employment
but receives no federal funds from the agency. However, the
- 16 -
fire department, also a subunit of the city government,
receives substantial agency funds for its operations. Provided
that the city or state received "support," that would be a
sufficient basis for coverage under S. 2568. And, while
defunding of the fire department might not be an available
remedy in such circumstances, the federal agency could refer
the matter to the Department of Justice for litigation in
injunctive proceedings against the police department because
the city is a recipient of federal funds (as a consequence of
one of its subunits' receipt of federal funds from which it
derives support) and thus is prohibited in all of its sub-
divisions from discriminating on the basis of handicap by
section 504. This result is different from court decisions
and agency practice before the Grove City College decision.
These four civil rights statutes have never been construed to
provide authority for the Federal Government to regulate
behavior in a unit of state or local government that received
no federal funds.
There are, as well, serious enforcement problems raised
by S. 2568. Agency regulations and paperwork requirements
imposed under the four existing civil rights statutes are
currently onerous in many respects. The bill, which would
give all funding agencies authority -- indeed, the statutory
responsibility -- to regulate all of the programs, activities,
and subunits, will remove existing boundaries of agency
jurisdiction to conduct compliance reviews and complaint
investigations. The result, particularly for universities and
state and local governments that typically receive funding
from many agencies, would likely be multiple compliance reviews
and reporting requirements. Complainants could file with
several agencies, resulting in duplication of effort and
inefficiency in the operation of federal civil rights
enforcement. Further, because agencies would be statutorily
responsible for the activities of its federally funded and
unfunded components, agency expertise in the operation of
programs and activities that they do fund would no longer
promote the avoidance of inappropriate requirements.
For example, assume that a county water district receives
a grant from the Environmental Protection Agency (EPA) to
study the county's sewer needs. S. 2568 would appear to
provide that all of the county's operations are subject to
all four civil rights statutes because the federal financial
assistance gives "support" to the county. Further assume
that EPA received a complaint alleging discrimination in
- 17 -
part of the county's operations that received no separate
federal funds -- the county's road maintenance. Even though
EPA has no knowledge or expertise in this area (it would fall
within the province of the Department of Transportation),
under the bill, EPA would presumably have the responsibility
to deal with the allegation of discrimination. The federal
government would lose a forceful tool -- the knowledge and
expertise of those with specialized experience in the kind of
discrimination involved.
There is no procedure contemplated by the bill for inter-
agency referrals that might serve to alleviate the concern
over inexpert or duplicative agency complaint investigations.
Nor is it clear, even under some agency referral systems, how
the fund termination provision would operate if the discriminatory
activity existed in a nonfunded component, as investigated by
a referral agency, and there developed a disagreement as to
whether the federal funds "supported noncompliance." No
attention appears to have been given to this set of complexities.
IV
CONSTITUTIONAL CONSIDERATIONS
In addition to the significant policy issues raised by
the potentially expansive change in the law under S. 2568 as
discussed above, the amendments may raise constitutional
questions with respect to Congress' power to impose such
requirements, and whether these requirements may be imposed
on the states. Three possible sources of federal power are
arguably available to support this legislation. First, the
commerce power, U.S. Const. Art. I, § 8 cl. 3, could be
relied upon for the imposition of nondiscrimination obligations
on certain private entities. See Heart of Atlanta Motel V.
United States, 379 U.S. 241, 261 (1964) (Title II of the
Civil Rights Act of 1964, prohibiting discrimination in
public accommodations, is valid exercise of commerce power).
Application of coercive responsibilities on the states
through the commerce power, however, is limited by the effect
of the Tenth Amendment. 14/ See National League of Cities V.
14/ "The powers not delegated to the United States by the
Constitution, nor prohibited by it to the States, are reserved
to the States respectively, or to the people." U.S. Const.
Amend. X.
- 18 -
Usery, 426 U.S. 833, 852 (1976) (federal government may not
regulate the states as states to impair their ability to
structure integral operations in areas of traditional govern-
mental functions). But see EEOC V. Wyoming, 103 S. Ct.
1054, 1064 (1983) (application of Age Discrimination in
Employment Act to states under commerce power did not
violate Tenth Amendment in context presented). If this
legislation is to avoid the constraints of the Tenth Amendment,
two alternative sources of federal power exist: the power to
impose conditions on expenditures of funds pursuant to the
Spending Clause 15/ and § 5 of the Fourteenth Amendment. 16/
When the source of legislative power is not articulated
by Congress and could be either the Spending Clause or § 5,
the Supreme Court generally looks to the type of obligations
sought to be imposed by the legislation. If the claimed
obligations involve affirmative financial outlays by the
states, the Court will be less willing to infer that the
power derives from § 5 and more likely to infer spending
power authority, "since we may assume that Congress will not
implicitly attempt to impose massive financial obligations on
the States." Pennhurst State School V. Halderman, 451 U.S. 1,
17 (1981) (Pennhurst I). 17/
15/ U.S. Const. Art. I, § 8, cl. 1.
16/ The Fourteenth Amendment provides, in part, that no
state may "deprive any person of life, liberty, or property,
without due process of law; nor deny to any person within its
jurisdiction the equal protection of the laws." Section 5
authorizes Congress "to enforce, by appropriate legislation,"
its provisions.
17/ This approach to determining the source of constitutional
authority for federal legislation could create distinctions
among the four civil rights statutes under consideration,
depending on the claims raised in a particular case. The
dispositive criterion would be whether the claimant sought
merely to enforce prohibitory obligations or instead attempted
to impose affirmative duties upon a recipient of federal aid.
The extent to which the four statutes require affirmative
steps has not been clearly resolved. See Southeastern Com-
munity College V. Davis, 442 U.S. 397, 411 (1979) (college
not required by § 504 to make affirmative efforts to overcome
disabilities caused by handicaps). But see 45 C.F.R. § 84.44
(1983) (under § 504 recipient must provide necessary "auxiliary
aids" to handicapped).
- 19 -
A. The Spending Clause
The Supreme Court has long recognized that Congress may
fix the conditions upon which it disburses federal funds to
the states. Pennhurst I, 451 U.S. at 17. There are, however,
limits on the power to impose such conditions. Id. Although
the Court has never defined those limits, its use of spending
power analysis to construe statutes passed under authority of
that power sheds some light on the general contours of this
type of legislation.
In Pennhurst I, the Court considered a statutory question
involving the Developmentally Disabled Assistance and Bill of
Rights Act ("Disabled Assistance Act"), a voluntary program
whereby the Federal Government provides assistance to states
to aid them in treating the mentally retarded. The issue
before the Court was whether the Disabled Assistance Act
created any substantive rights on behalf of the mentally
retarded to particular types of treatment and, if so, whether
Congress, which had not articulated its source of authority,
could impose these obligations on the states either under its
spending power or under § 5 of the Fourteenth Amendment. The
Court approached the question of power first, considering the
scope of the spending power in order to determine what rights
Congress had intended to create under the Act. The Court
explained the principles of spending power analysis:
[L] Jegislation enacted pursuant to the
spending power is much in the nature of
a contract: in return for federal funds,
the States agree to comply with federally
imposed conditions. The legitimacy of
Congress' power to legislate under the
spending power thus rests on whether the
State voluntarily and knowingly accepts
the terms of the "contract." There can,
of course, be no knowing acceptance if a
State is unaware of the conditions or is
unable to ascertain what is expected of
it. Accordingly, if Congress intends
to impose a condition on the grant of
federal money, it must do so unambig-
uously. By insisting that Congress
speak with a clear voice, we enable the
States to exercise their choice knowingly,
cognizant of the consequences of their
participation.
451 U.S. at 17 (citations and footnote omitted).
- 20 -
The Court approached this question in Pennhurst I, not in
the context of the limits on Congress's power under the
Spending Clause, but rather by attempting to determine whether
Congress had intended to impose certain affirmative financial
obligations upon state participants in the program to realize
social benefits that the Act sought to achieve. Ambiguous
statutory language and legislative history in the Disabled
Assistance Act persuaded the Court that Congress could not
have intended to use its spending power in a way that would
impose affirmative obligations on recipient states without
clear notice. Id. at 27. 18/ Thus while Congress has broad
power to place conditions upon funds expended under the
Spending Clause, Pennhurst I stands for the proposition that
legislation must clearly notify states accepting federal
financial assistance that they are thereby incurring additional
obligations. The Court declined to attribute to Congress an
intent to impose significant financial obligations on the
states without adequate notice. As in contract theory, the
recipient must have the option to terminate or refuse a
grant rather than assume the concomitant burdens. Guardians
Ass'n v. Civil Service Comm'n of the City of New York,
103 S. Ct. 3221, 3229 (1983) ; Fullilove V. Klutznick, 448
U.S. 448, 474 (1980); Rosado V. Wyman, 397 U.S. 397, 420-21
(1970).
This construction of the spending power avoids the
limitations of the Tenth Amendment, which apply with full
force to Congress's power under the Commerce Clause. Because
the State has a choice whether to accept a condition attached
to federal funding, its sovereignty is not threatened as
it is in certain mandatory applications of Congress's commerce
power. This voluntary, knowing decision of a state to exchange
burdens for benefits, at least in theory, preserves the
autonomy of state governance and avoids the threat of federal
coercion. See Steward Machine Co. V. Davis, 301 U.S. 548,
589 (1937) (rejecting Tenth Amendment challenge to federal
social security tax law because state unable to claim duress) ;
18/ The Court reasoned further that since no provision in the
Act authorized termination of funds for violation of the
specific right claimed, affirmative accommodation of that
right "can hardly be considered a 'condition' of the grant of
federal funds." 141 U.S. at 23.
- 21 -
ct. National League of Cities V. Usery, 426 U.S, 833, 852
n.17 (1976) (expressing no view as to whether Tenth Amendment
would pose an impediment to exercises of spending power);
Coyle V. Oklahoma, 221 U.S. 559, 568 (1911) (under power to
admit states to the union, Congress may impose terms and
conditions but may not deprive a state of essential attributes).
An examination of S. 2568 in light of these principles
discloses that the bill purports to set out the conditions
under which a state will be deemed to have accepted the
nondiscrimination obligations of the four civil rights statutes.
If a state "receives support" from the federal money granted
to it or to its subunit, then it must comply with the statu-
tory mandates. (See pp. 6-8 supra.) Under a number of circum-
stances, it seems apparent that a state could not successfully
claim that it was unaware of the intended effect of the bill,
nor would a court have difficulty in such situations in
determining that notice was adequate to ensure that the
Spending Clause was properly invoked. Thus, for example, in
a situation such as that involved in the Grove City case, an
institution would be characterized as a "recipient" on account
of aid to one of its departments, and could not successfully
claim that it was unaware that the entire institution would
be rendered subject to the Act through receipt of federal
funding by a single department. This reading is consistent
with both the language of the bill and the statements of its
sponsors.
Different considerations might arise, however, if a
state were charged with the responsibilities of the non-
discrimination statutes as a result of federal aid to a
discrete state component. Substantial uncertainty exists,
for example, as to whether a federal research grant to a
state university science facility would necessarily subject
each and every other activity of the state or any of its sub-
units, no matter how remote in funding or activities, to
statutory coverage. Assuming no other federal aid, the
obligations and liabilities of the state's police department,
legislature, or health clinics would depend on the extent to
which the state could be said to "receive support" from the
federal research grant. The bill does not provide a standard
for determining this significant issue, nor does it clearly
articulate the choices the state is making when it accepts
the federal funds.
- 22 -
Clear notice to a state indicating the extent of the
responsibilities it agrees to incur by accepting federal aid,
therefore, might be absent in some circumstances, depending
on the basis asserted for a claim that the state was covered
by the statute. We believe that the bill is susceptible to
certain applications that would not meet the notice standard
articulated in Pennhurst I.
A challenge to the bill on this ground is unlikely to
arise as a facial attack on the constitutionality of Congress's
exercise of its spending power. Rather, it is more likely
that a court would be asked to determine whether, under a
specific set of facts, Congress had intended the ambiguous
language to require that an entire state be covered by the
statutes as a result of isolated federal assistance programs.
As in Pennhurst I, the Court would tend to construe the statutes
narrowly enough that they would not exceed the heretofore un-
defined limits of the spending power. See Lau V. Nichols,
414 U.S. 563, 569 (1974) ("whatever may be the limits" of the
spending power, Title VI does not exceed them).
Only through a continuous process of judicial interpretation
and reinterpretation could this legislation as presently drafted
eventually develop meaningful contours of the type envisioned
by the Court in Pennhurst I. Thus, while we do not believe
that the ambiguity would necessarily require invalidation of
any part of the amendments, we are concerned that considerable
uncertainty would result with regard to the coverage of the
four statutes affected by this bill. Although the statements
of the sponsors of S. 2568 do not appear to recognize that
the definition of "recipient" could extend statutory coverage
far beyond the contours of a single institution and the Grove
City facts, the language is broad enough to subject an entire
state and all of its subunits to coverage if the state, or
any of its subunits, receives any federal assistance. Evidently
the sponsors either do not perceive or do not wish to emphasize
the bill's amenability to this construction. Yet, the meaning
of the "receives support" limitation -- if indeed it is a
limitation -- is nowhere articulated. We believe that the
amendments should be refined to achieve greater precision and
to avoid unnecessary litigation and resultant confusion.
- 23 -
B. Section 5 of the Fourteenth Amendment
A possible alternative source of federal power to enact
S. 2568, one which would surely be cited by litigants as
additional support for the legislation, particularly if Tenth
Amendment or Spending Clause limitations were raised, is § 5
of the Fourteenth Amendment. That section grants Congress
the power to enforce, by appropriate legislation, the provisions
of the Fourteenth Amendment.
On the one hand, reliance on § 5 would give Congress
broad power to impose affirmative obligations on the states
if the legislation fell within the purview of that grant of
authority. Section 5 legislation is restricted neither by
the voluntariness requirements of spending power conditions,
nor by the Tenth Amendment restraint on interference with
state sovereignty. EEOC V. Wyoming, 103 S. Ct. 1054, 1064
n.18 (1983); City of Rome V. United States, 446 U.S. 156, 179
(1980); cf. Fitzpatrick V. Bitzer, 427 U.S. 445, 456 (1976)
(Eleventh Amendment). "The prohibitions of the Fourteenth
Amendment are directed to the States, and they are to a
degree restrictions of State power. Ex parte Virginia, 100
U.S. 339, 346 (1880).
On the other hand, two considerations make it unlikely
that all aspects of S. 2568 would be upheld as exercises of
$ 5. The considerations relate, generally, to two issues:
(1) whether Congress intended to exercise § 5 power, a statutory
question, and (2) whether § 5 in fact authorizes the particular
exercise of power represented by S. 2568, a constitutional
question. As to the first consideration, Congress has not
specifically invoked § 5 as authority to enforce the Fourteenth
Amendment in S. 2568. The Supreme Court indicated in Pennhurst I
that it will not lightly infer a congressional intent to use
§ 5 to impose affirmative obligations on the States, although
prohibitory legislation would be more susceptible to such an
inference. 451 U.S. at 16, 17. The language of § 601 and
its counterparts is facially prohibitory, but compliance with
the prohibitions of some of the four statutes may require
substantial outlays of state funds. 19/ Thus a court would be
19/ For example, § 504 can require a covered entity to take
some steps to provide auxiliary aids, including personnel and
equipment, to handicapped persons. See 45 C.F.R § 84.44
(1983).
- 24 -
unlikely to impute § 5 authority to such statutes unless
Congress expressly invoked it. "Because such legislation
[under § 5] imposes congressional policy on a State involun-
tarily, and because it often intrudes on traditional state
authority, we should not quickly attribute to Congress an
unstated intent to act under its authority to enforce the
Fourteenth Amendment." Pennhurst I, 451 U.S. at 16.
As to the second consideration, it is unclear whether
§ 5 would support the sweeping requirements of the four
nondiscrimination statutes even if it were explicitly invoked.
The limits of what may be the subject of "appropriate legisla-
tion" under § 5 have not been defined by the Court. See
Pennhurst I, 451 U.S. at 16 n.12. The Court has extended to
§ 5 cases the test of McCulloch V. Maryland, 17 U.S. 315, 420
(1819), under which a statute passed under § 5 must be "plainly
adapted" to the end of enforcing the Fourteenth Amendment and
consistent with "the letter and spirit of the Constitution."
Katzenbach V. Morgan, 384 U.S. 647, 651 (1966). The Court
has construed broadly Congress's exercise of § 5 powers to
impose requirements beyond those mandated by the Fourteenth
Amendment itself, but to date such expansive readings of the
§ 5 powers have been accorded primarily in the area of race
discrimination. See Fullilove V. Klutznick, 448 U.S. 448
(1980) City of Rome, 446 U.S. at 177.
However, the breadth of Congress's power under § 5 is an
area which the Supreme Court has not fully explored. In
particular, it is unsettled how much latitude Congress has to
determine the substantive content of Fourteenth Amendment
rights in the course of deciding what "rights" are appropriate
to enforce pursuant to § 5. Thus it is not clear to what
extent or in what circumstances Congress can modify or expand
Fourteenth Amendment rights by statute, either on the basis of
legislative findings of fact or as a matter of "resolution of
competing values and a delineation of substantive constitutional
rights by Congress rather than the Court." 20/
The Court has not yet applied the deferential standard
accorded legislation involving race discrimination outside
the area of race, the principal target of the Civil War
Amendments. This question sharply divided the Court in
20/ G. Gunther, Constitutional Law 1086 (10th ed. 1980).
- 25 -
Oregon V. Mitchell, 400 U.S. 112 (1970). In that case, the
Court upheld Congress's § 5 authority to ban literacy tests
in state voting based upon evidence of raciallly discriminatory
effects, but it struck down Congress's attempt under § 5 to
require states to permit the 18-year-old vote in state elections.
Some members of the Court evidently believed that legislation
outside the area of racial discrimination cannot be accomplished
under § 5, id. at 130 (Opinion of Black, J.); id. at 212
(Opinion of Harlan, J.); id. at 293 (Opinion of Stewart, J.,
with Burger, C.J. and Blackmun, J.), while others apparently
believed that all principles of equality may be enforced
under § 5. Id. at 143 (Opinion of Douglas, J.); id. at 240
(Opinion of Brennan, White, and Marshall, JJ.). More recently,
the Court declined an opportunity to decide whether the Age
Discrimination in Employment Act (ADEA) could be upheld as a
valid exercise of § 5 powers. EEOC V. Wyoming, 103 S. Ct. at
1064. Four justices, in dissent, expressed the view that § 5
could not provide the basis for Congress's extension of the
ADEA to the states. Id. at 1068 (Burger, C.J., with Powell,
Rehnquist, and O'Connor, JJ., dissenting). 21/
Title VI has the strongest claim to validity under § 5
because it focuses on racial discrimination. Title IX, the ADA
and § 504 stand on more tenuous footing in this respect, since
they arguably reach beyond the mandates of the Constitution
in protecting classes of persons heretofore not judicially
recognized as entitled, as a class, to the protections afforded
by the Fourteenth Amendment to victims of racial discrimina-
tion. Consequently, it is much more likely that at least
these three statutes would be analyzed under the Spending
Clause rather than as exercises of congressional power under
§ 5. If so, the courts might well attempt to construe these
statutes as applicable only in those instances where they may
be perceived as providing sufficiently clear notice to consti-
tute a valid imposition of conditions upon the acceptance of
federal funds under the Spending Clause. However, this task
should properly be undertaken in the first instance by the
legislators.
21/ The Chief Justice appears to have taken the position
that the Court must declare a class to be constitutionally
protected before Congress can exercise whatever § 5 power it
may have vis-a-vis the states. 103 S. Ct. at 1074 n.7.
- 26 -
V
ALTERNATIVES TO S. 2568 AND H.R. 5490
To the extent that the legislative objective is limited to
removing the restraints found by the Court to have been written
into present law in the Grove City decision, proponents might
wish to consider alternative amendments which would reverse
that decision without tampering with an otherwise effective
and successful statutory scheme. Each possible alternative
may raise its own set of issues to be considered carefully by
the Congress, and because of the importance of any modification
in these civil rights statutes, any proposed change deserves
to be subjected to the full rigors of the committee hearing
process, to provide an opportunity to develop fully its
strengths and weaknesses, and to create a useful legislative
history. One possibility for attaining the stated objective
of reversing the Grove City decision through less drastic
changes in the existing civil rights statutes would be the
Schneider bill, H.R. 5011, currently before Congress, which
would extend Title IX coverage to educational institutions
as well as to "programs and activities." Indeed, Congress
might well wish to consider expanding H.R. 5011 so that its
institution-wide coverage pertains to discrimination on
account of race, age, and handicap, as well as, on account of
sex. Alternatively, an amendment to S. 2568 and H.R. 5490
could go far toward avoiding at least some of the difficulties
outlined in this report. The Department of Justice stands
ready to work with the Committee to devise language that
will fully meet Congress's stated purpose while avoiding the
sort of coverage, administrative and enforcement problems
discussed above.
VI
CONCLUSION
Our review of the foreseeable effects of S. 2568 leads
us to conclude that the sweeping scope of the language proposed
in the bill might well have much broader application than simply
the reversal of the Grove City decision. We believe the
consequences of the serious ambiguities in the bill and their
constitutional implications, discussed above, have not been
adequately considered by Congress or accurately reflected in
the introductory statements of the bill's sponsors. The
perhaps unintended ramifications of the bill are certain, at
best, to create confusion in recipients, agencies, and courts.
- 27 -
At worst, they may include impermissible interference with
important state prerogatives or lead to adverse judicial
decisions as to their enforceability.
Sincerely,
Robert A. McConnell
Assistant Attorney General
Office of Legislative and
Intergovernmental Affairs
- 28 -
APPENDIX
STATUTES AS AMENDED BY S. 2568 AND H.R. 5490 *
TITLE IX
EDUCATION AMENDMENTS OF 1972, § 901; 20 U.S.C. § 1681
§ 1681
(a) Prohibition against discrimination; exceptions
No person in the United States shall, on the basis of
sex, be excluded from participation [in], be denied [the]
benefits [of], or be subjected to discrimination [under any
education program or activity receiving] by any education
recipient of Federal financial assistance, except that:
*****
(c) "Educational institution" defined
*****
(2) [NEW] For the purpose of this title, the term 'recipient'
means--
(A) any State or political subdivision thereof, or
any instrumentality of a State or political subdivision
thereof, or any public or private agency, institution,
or organization, or other entity (including any subunit
of any such State, subdivision, instrumentality, agency,
institution, organization, or entity), and
(B) any successor, assignee, or transferee of any
such State, subdivision, instrumentality, agency,
institution, organization, or entity or of any such
subunit,
to which Federal financial assistance is extended (directly
or through another entity or a person), or which receives
support from the extension of Federal financial assistance
to any of its subunits.
* New language is designated by underscoring or by "NEW;" portions
that the bill would delete are in brackets.
- la -
§ 1682
Each Federal department and agency which is empowered to
extend Federal financial assistance [to any] for education
[program or activity], by way of grant, loan, or contract
other than a contract of insurance or guaranty, is authorized
and directed to effectuate the provisions of section 1681 of
this title with respect to [such program or activity] recipients
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] which 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] which such a finding has been made, and shall be
limited in its effect to the particular [program, or part
thereof, in which] assistance which supports 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 termi-
nating, 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.
- 2a -
REHABILITATION ACT OF 1973, § 504, 29 U.S.C. § 794
§ 794
(a) No otherwise qualified handicapped individual in the
United States, as defined in section 706(6) of this title,
shall, solely by reason of [his] such individual's handicap,
be excluded from the participation [in], be denied [the]
benefits [of], or be subjected to discrimination [under any
program or activity receiving] by any recipient of Federal
financial assistance.
(b) [NEW] For the purpose of this section, the term 'recipient'
means
(1) any State or political subdivision thereof, or
any instrumentality of a State or political subdivision
thereof, or any public or private agency, institution,
or organization, or other entity (including any subunit
of any such State, subdivision, instrumentality, agency,
institution, organization, or entity), and
(2) any successor, assignee, or transferee of any
such State, subdivision, instrumentality, agency,
institution, organization, or entity or of any such
subunit,
to which Federal financial assistance is extended (directly
or through another entity or a person), or which receives
support from the extension of Federal financial assistance
to any of its subunits.
- 3a -
AGE DISCRIMINATION ACT OF 1975, § 302; 42 U.S.C. § 6101
§ 6101
It is the purpose of this chapter to prohibit discrimination
on the basis of age [in programs or activities receiving] by
recipients of Federal financial assistance, including [programs
or activities receiving funds under the State and Local
Fiscal Assistance Act of 1972 (31 U.S.C. 1221 et seq.) recipients
of funds under chapter 67 of title 31, United States Code.
§ 6102
Pursuant to regulations prescribed under section 6103 of
this title, and except as provided by section 6103(b) and
section 6103 (c) of this title, no person in the United States
shall, on the basis of age, be excluded from participation [in],
be denied [the] benefits [of], or be subjected to discrimination
[under, any program or activity receiving] by any recipient
of Federal financial assistance.
§ 6103
*****
(b) Nonviolative actions
(1) It shall not be a violation of any provision of this
chapter, or of any regulation issued under this chapter, for
any person to take any action otherwise prohibited by the
provisions of section 6102 of this title if [, in the program
or activity involved]--
(A) such action reasonably takes into account age as a
factor necessary to the normal operations of the recipient
or the achievement of any statutory objective [of such
program or activity] in furtherance of which the Federal
financial assistance is used; or
*****
(c) Employment practices
(1) Except with respect to [any program or activity
receiving] Federal financial assistance for public service
employment under the Comprehensive Employment and Training
Act of 1974 (29 U.S.C. 801 et seq.) as amended, nothing in
this chapter shall be construed to authorize action under
this chapter by any Federal department or agency with respect
to any employment practice of any employer, employment agency,
or labor organization, or with respect to any labor-management
joint apprenticeship training program.
* * *
- 4a -
§ 1604
(a) Methods of achieving compliance with regulations
The head of any Federal department or agency who prescribes
regulations under section 6103 of this title may seek to achieve
compliance with any such regulation--
(1) by terminating, or refusing to grant or to continue,
assistance [under the program or activity involved] to any
recipient with respect to whom there has been an express
finding on the record, after reasonable notice and opportunity
for hearing, of a failure to comply with any such regulation; or
(2) by any other means authorized by law.
(b) Limitations on termination
Any termination of, or refusal to grant or to continue,
assistance under subsection (a) (1) of this section shall be
limited to the particular political entity or other recipient
with respect to which a finding has been made under subsection
(a) (1) if this section. Any such termination or refusal shall
be limited in its effect to [the particular program or activity,
or part of such program or activity, with respect to which such
funding has been made] assistance which supports the non-
compliance so found. No such termination or refusal shall
be based in whole or in part on any finding with respect to
any [program or activity] noncompliance which [does] is not
[receive Federal financial] supported by such assistance.
Whenever the head of any Federal department or agency who
prescribes regulations under section 6103 of this title with-
holds funds pursuant to subsection (a) of this section, he may,
in accordance with regulations he shall prescribe, disburse
the funds so withheld directly to any public or nonprofit
private organization or agency, or State or political sub-
division thereof, which demonstrates the ability to achieve
the goals of the Federal statute authorizing the program or
activity while complying with regulations issued under section
6103 of this title.
(e) Injunctions
(1) When any interested person brings an action in any
United States district court for the district in which the
defendant is found or transacts business to enjoin a violation
of this [Act by any program or activity receiving Federal
financial assisstance] title, such interested person shall
give notice by registered mail not less than 30 days prior to
the commencement of that action to the Secretary of Health
and Human Services, the Attorney General of the United States,
and the person against whom the action is directed.
*
*
- 5a -
§ 6107
For purposes of this chapter--
*****
(4) [NEW] the term 'recipient' means--
(A) any State or political subdivision thereof, or
any instrumentality of a State or political subdivision
thereof, or any public or private agency, institution,
or organization, or other entity (including any subunit
of any such State, subdivision, instrumentality, agency,
institution, organization, or entity), and
(B) any successor, assignee, or transferee of any
such State, subdivision, instrumentality, agency,
institution, organization, or entity or of any such
subunit,
to which Federal financial assistance is extended (directly
or through another entity or a person), or which receives
support from the extension of Federal financial assistance
to any of its subunits.
- 6a -
TITLE VI
CIVIL RIGHTS ACT OF 1964, § 601; 42 U.S.C. § 2000d
§ 2000d
No 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]
by any recipient of Federal financial assistance.
§ 2000d-1
Each Federal department and agency which is empowered to
extend Federal financial assistance to any [program or activity]
recipient, 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 2000d of this title
with respect to such [program or activity] recipient 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] which 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] which 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] assistance
which supports such noncompliance 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.
- 7a -
§ 2000d-6 [NEW]
For the purpose of this title, the term 'recipient'
means
(1) any State or political subdivision thereof, or
any instrumentality of a State or political subdivision
thereof, or any public or private agency, institution,
or organization, or other entity (including any subunit
of any such State, subdivision, instrumentality, agency,
institution, organization, or entity), and
(2) any successor, assignee, or transferee of any
such State, subdivision, instrumentality, agency,
institution, organization, or entity or of any such
subunit,
to which Federal financial assistance is extended (directly
or through another entity or a person), or which receives
support from the extension of Federal financial assistance
to any of its subunits.
- 8a -
PRESIDENT A UNITED STATES
EXECUTIVE OFFICE OF THE PRESIDENT
OFFICE OF management AND BUDGET
WASHINGTON, D.C. 20503
MEMORANDUM
May 25, 1984
To:
Jack Svahn
Nancy Risque
Jim Cicconi
Ken Cribb
From:
Mike Horowitz
MU
May I submit language which -- from what you have indicated to be
the stated problem of the Dole and Packwood staffers -- should
wholly solve their problem?
As I understand their stated position, it is that they have no
wish to expand Title VI, Section 504 or the Age Discrimination
Act beyond their pre-Grove City bounds, but are concerned that
the language and logic of the Grove City decision could force a
constriction of enforcement of the three above statutes to levels
less stringent to those in effect before the Supreme Court spoke
in Grove City.
After wrestling yesterday with various possible amendments to
Title VI, Section 504 and the Age Discrimination Act, it occurred
to me that an effort to directly deal with the stated problem of
the Dole-Packwood staffers might just do the trick.
I am submitting as an attachment, for your eyes only, language
that isolates and quarantines the Grove City decision and removes
any effect of that decision on Title VI, Section 504 or the Age
Discrimination Act.
The structure of the proposal is that Section 1 would revise
Title IX along whatever lines might be negotiated in order to
solve the genuine problems created by the Grove City decision.
(Thus, with the participation of Justice and Education, revised
Title IX language would address such questions as whether an
institutional recipient is to be defined as a single campus, an
entire university system or somewhere in between.)
Section 2 of the bill, however, whose language is set forth in
the attachment, would make explicit that Title VI, Section 504
and the Age Discrimination Act are to be construed "without
reference to, consideration of or regard to" any Title IX
language that may have been "construed by any court" prior to the
enactment of the new Title IX revision contained in Section 1 of
the bill.
I hope this is helpful and believe that the attached language
will make clear to us (and to Crippen) whether the Dole and
Packwood staffers have been honestly setting forth their
position. At a minimum, it should force them to describe
pre-Grove City problems with Title XI, Section 504 and the Age
Discrimination Act that are in need of statutory revision --
problems which, to date, they have said did not exist.
1. [Title IX revision]
2. The term "any program or activity receiving Federal financial
assistance" in 42 U.S.C. 2000d et seq., 29 U.S.C. 794, and 42
U.S.C. 6102 shall be construed without reference to,
consideration of or regard to the term "any education program or
activity receiving Federal financial assistance" in Section
901 (a) of Title IX of the Education Amendments of 1972, as that
term was construed by any court prior to the effective date of
the amendments enacted by this act.