The opinion of the court was delivered by: SIMMONS
PRELIMINARY STATEMENT, FINDINGS OF FACT, CONCLUSIONS OF LAW, DISCUSSION AND ORDER
In July of 1977, Secretary Califano requested that the College execute HEW Form 639A, which is captioned, "Assurance of Compliance with Title IX of the Education Amendments of 1972, and the Regulation Issued by the Department of Health, Education and Welfare in Implementation Thereof". (See Exhibit "A" to Plaintiffs' Complaints for a copy of said form)
HEW insisted that the College must execute Form 639A, and contended that since a good number of the College's students received Basic Education Opportunity Grants, (hereinafter referred to as ("BEOG") and Guaranteed Student Loans, (hereinafter referred to as "GSL") and because these programs were financed with Federal funds and were used by the students to defray educational expenses, that the College was caused to be a "recipient" of Federal financial assistance as that term is defined in 45 C.F.R. Part 86, and the College was therefore duty-bound to execute Form 639A.
Further, the Secretary contended that if the College refused to execute this form, the College and the students at the College would no longer be allowed participation in the GSL and BEOG Programs pursuant to § 902 of Title IX (Title 20 U.S.C. § 1682). There was no allegation or proof offered by HEW that the College was, in fact, guilty of discrimination on the basis of sex in any manner whatsoever.
The College contended that it was not a recipient of Federal financial assistance by virtue of the GSL and BEOG Programs, and to the extent that HEW's regulations deemed the College to be such a recipient, they were an invalid extension of the statute, and that in any event, the HEW regulations were overbroad because they were not limited to regulating those programs that received Federal financial assistance. In addition, the College claimed that HEW has promulgated regulations which, as applied to Plaintiffs, exceed the scope of §§ 901 and 902 of Title IX, (20 U.S.C. §§ 1681, 1682) and that said regulations of HEW as the same were applied to the College, violate the First and Fifth Amendments to the Constitution of the United States. The College, on the basis of conscience and principle, refused to execute the Assurance of Compliance with Title IX.
Thereupon, HEW initiated a compliance proceeding, and subsequently, an administrative hearing was held before HEW Administrative Law Judge, Albert Feldman, on March 10, 1978, in Philadelphia, Pennsylvania. It is important to note that only the College was named as a respondent, and none of the College's students were parties and they were not otherwise represented at the administrative proceeding even though over three hundred of them had a direct interest in the outcome of that hearing.
In his opinion, dated September 18, 1978, Judge Feldman did not address the College's constitutional arguments, ruling that his authority was restricted to determining whether the College complied with HEW's regulations. Significantly, however, Judge Feldman stated on page 9, of his decision 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."
And, Judge Feldman further wrote on page 9, of his decision:
"There is, very clearly, given to the Director a total and unbridled discretion to require any certificate of compliance that he may desire, whether the same be reasonable, or, to reasonable men, unreasonable. There are no guidelines. There is no necessary continuity, as from one Director to a successor Director whose opinions as to what constituted compliance might be totally different from those of his predecessor."
"The Administrative Law Judge is not persuaded by any of the cases cited that this authority in the regulations has been struck down. Under the circumstances, the regulations being binding upon the Administrative Law Judge, he must rule in accordance therewith. The Director is given unlimited discretion so that the Administrative Law Judge has no authority to rule and is powerless to rule either that the regulations are unconstitutional or that the regulations exceed the statutory authority."
See in the matter of Grove City College, Docket No. A-22, P. 9 (HEW Administrative Proceeding, Sept. 15, 1978). (Initial Decision)
Since the College conceded that it did not sign the Assurance of Compliance required by the regulations, Judge Feldman found that the College was not in compliance. He, therefore, ordered that students who attended the College were ineligible to receive BEOG's or GSL's, and the following is the full text of the Final Order as drafted by Judge Feldman, and as adopted by the Secretary:
1. Federal financial assistance administered by the Department of Health, Education and Welfare under the following authorization is to be terminated and refused to be granted to the respondent institution:
a) Basic Education Opportunity Grant Program, 20 U.S.C. § 1070a.
b) Guaranteed Student Loans Program, 20 U.S.C. § 1071 et seq.
2. Additional Federal financial assistance which the respondent institution would be eligible to receive, either from the Department or through the Commonwealth of Pennsylvania, but for its noncompliance with Title IX, is to be refused to be granted.
3. This termination and refusal to grant or continue Federal financial assistance shall remain in force until the respondent institution corrects its noncompliance with Title IX and satisfies the Department that it is in compliance.
4. This initial Decision and Order shall become final unless, within twenty (20) days after mailing the initial Decision and Order, either party submits exceptions to the Reviewing Authority in accordance with 45 C.F.R. § 81.102.
/s/ ALBERT P. FELDMAN/Albert P. Feldman, Administrative Law Judge
Date: September 15, 1978"
Pursuant to 45 C.F.R. § 81.104, Judge Feldman's Order became final on October 14, 1978. On November 29, 1978, Plaintiffs commenced this suit.
In the action before this District Court, the Plaintiffs are Grove City College, and four of its students, namely, Marianne Sickafuse, Kenneth J. Hockenberry, Jennifer S. Smith and Victor E. Vouga.
The Plaintiffs allege that their action arises under Title IX of the Educational Amendments of 1972, 86 Stat. 373, as amended, 88 Stat. 1862 (1974), 90 Stat. 2234 (1976), 20 U.S.C. § 1681 et seq. ("Title IX"). Plaintiffs further allege that this Court has jurisdiction for review pursuant to Title IX, 20 U.S.C. § 1682; The Administrative Procedure Act, 5 U.S.C. § 701 et seq.; The Federal Declaratory Judgment Act, 28 U.S.C. §§ 2201 and 2202; 28 U.S.C. § 1331 and 28 U.S.C. § 1361.
The Plaintiffs request this Court to find that the aforestated Order of the Secretary of HEW requiring the College to execute the Assurance of Compliance or in the alternative suffer the termination of the BEOG and GSL benefits to the College's students, including the individual Plaintiffs, is null and void and of no legal effect.
In due course, HEW filed an Answer to the Complaint filed by the Plaintiffs in this case.
The Plaintiffs responded by filing what their attorneys have described as a "Motion for Judgment on the Pleadings", with supporting affidavits pursuant to Rule 12 of the F.R.C.P., but this Court will treat the Motion as one for Summary Judgment pursuant to Rule 12c and Rule 56 of F.R.C.P.
The Defendant HEW thereupon filed a cross-motion for Summary Judgment.
There are no disputed and/or triable questions of material fact noticed by this Court, the parties have briefed and argued their respective points, and the matter is ripe for a decision by this Court.
The sub-issues of law that must be decided in order to determine the validity of the administrative Order in question are as follows:
1) Does this Court have jurisdiction to presently adjudicate this case?
2) Does Title IX of the Educational Amendments of 1972, Title 20 U.S.C. §§ 1681 et seq. apply to Plaintiff Grove City College and/or to the four individual Plaintiffs in this case, and if so, to what extent?
3) Do HEW's regulations (45 C.F.R., Part 86) which purport to implement Title IX of the Educational Amendments of 1972, Title 20 U.S.C. §§ 1681 et seq. unlawfully exceed the statutory authority and legislative purposes of the sex discrimination provisions of the said Educational Amendments of 1972 in the area of:
a) Subject matter coverage:
A. As to Grove City College?
B. As to the individual student Plaintiffs?
A. As to Grove City College?
B. As to individual student Plaintiffs?
4) Are HEW's regulations in this case 45 C.F.R., Part 86) unconstitutionally applied to:
b) The individual student Plaintiffs?
5) Should Grove City College be required to execute the Assurance of Compliance?
6) Should the BEOG and/or the GSL assistance programs for the students be terminated?
1. Grove City College ("College") is a private co-educational institution of higher education, affiliated with the United Presbyterian Church, located in Grove City, Pennsylvania, and chartered as an educational institution under the laws of the Commonwealth of Pennsylvania.
2. Marianne Sickafuse, a resident of Pennsylvania, is a full-time student at the College, who is a recipient of a Basic Educational Opportunity Grant (BEOG) totaling $ 400.00, for the academic year 1978-79. Said student will be unable to continue to attend this College of her choice without the receipt of said financial assistance and will be irreparably harmed, if said grant is terminated as it relates to the College.
3. Kenneth J. Hockenberry, a resident of New Jersey, is a full-time student at the College, who is a recipient of a Basic Educational Opportunity Grant (BEOG) totaling $ 600.00, as well as a Guaranteed Student Loan (GSL) totaling $ 2,000.00, for the academic year 1978-79. Said student will be unable to continue to attend this College of his choice without the receipt of said financial assistance and will be irreparably harmed, if said grant and loan is terminated as it relates to the College.
4. Jennifer S. Smith, a resident of Pennsylvania, is a full-time student at the College, who is a recipient of a Guaranteed Student Loan (GSL) totaling $ 1,000.00, for the academic year 1978-79. Said student will be unable to continue to attend this College of her choice without the receipt of said financial assistance and will be irreparably harmed, if said loan is terminated as it relates to the College.
5. Victor E. Vouga, a resident of Wisconsin, is a full-time student at the College, who is a recipient of a Guaranteed Student Loan (GSL) totaling $ 2,500.00, for the academic year 1978-79. Said student will be unable to continue to attend this College of his choice without the receipt of said financial assistance and will be irreparably harmed, if said loan is terminated as it relates to the College.
6.Defendant, Patricia Harris, (the "Secretary") is the Secretary of the Department of Health, Education and Welfare, ("HEW") and HEW is administered under the supervision and direction of Defendant Secretary, Patricia Harris.
7. Defendant, Roma J. Stewart, successor to original Defendant, David Tatel, is the Director of the Office for Civil Rights, ("OCR") the Division of HEW responsible for enforcement of Title IX. The Office for Civil Rights is administered now under the supervision and direction of Defendant Roma J. Stewart.
8. Title IX of the Education Amendments of 1972, (20 U.S.C.§§ 1681 et seq.) provides, inter alia :
a) No person in the United States shall, on basis of sex, be excluded from participation in, be denied the benefits of, or be subjected to discrimination under any education program or activity receiving Federal financial assistance... (20 U.S.C. § 1681(a).
9. In enforcing the non-discrimination requirements of Title IX, each Federal department and agency which is empowered to terminate Federal financial assistance, other than assistance involving contract of insurance of guaranty, is authorized to issue rules, regulations and orders. (20 U.S.C. § 1682) Pursuant to this authority, the Secretary has issued regulations establishing certain requirements for recipients of Federal financial assistance administered under the auspices of HEW. In addition, the Secretary has designated the Director of OCR as his chief enforcement officer under Title IX. 45 C.F.R., Part 86 (1977).
10. The Secretary's regulations have defined Federal financial assistance to include funds made available for:
(i) The acquisition, construction, renovation restoration or repair of a building or facility or any portion thereof; and
(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;
(2) A grant of Federal real or personal property or any interest therein, including surplus property, and the proceeds of the sale or transfer of such property, if the Federal share of the fair market value of the property is not, upon such sale or transfer, properly accounted for to the Federal Government.
(3) Provision of the services of Federal Personnel.
(4) Sale or lease of Federal property or any interest therein at nominal consideration, or at consideration reduced for the purpose of assisting the recipient or in recognition of public interest to be served thereby, or permission to use Federal property or any interest therein without consideration.
(5) Any other contract, agreement or argument which has as one of its purposes the provision of assistance to any education program or activity, except a contract of insurance or guaranty. 45 C.F.R. 86.2(g)(1) (1977).
11. The Secretary's regulations have defined a recipient of Federal financial ...