(1975) (Tower Amendment reintroduced; not passed by Congress); S.Conc.R. 46, 121 Cong.Rec. 17300 (1975) (Helms Resolution to disapprove proposed regulations applying Title IX to programs and activities not directly receiving federal funds; not reported out of Committee); S. 2146, 121 Cong.Rec. 23845 (1975) (Helms Amendment to limit Title IX coverage to education programs and activities directly receiving federal financial assistance; not passed by Congress); Amend. 389, 122 Cong.Rec. 28136 (1976) (McClure Amendment to redefine "education program or activity" to mean "such programs or activities as are curriculum or graduation requirements of the institution"; defeated by Senate); Amend. 390, 122 Cong.Rec. 28144 (1976) (McClure Amendment to define federal financial assistance as assistance received directly from the federal government, defeated by the Senate).
The congressional debate on the 1976 McClure Amendments focused specifically on the question here-whether Title IX applies to programs receiving only indirect federal financial assistance. See, e.g., 122 Cong.Rec. 28145 (1976) ("The matter before us or the specific vehicle which brings colleges under the regulations; namely, the receipt of direct or indirect Federal financial assistance directly to the university, but the inclusion of students who get federal assistance is not unique .... If a student is benefited, the school is benefited.") (emphasis added) (remarks of Sen. Bayh).
I have found nothing in the legislative history reflecting a congressional intent to limit the scope of the general statement of prohibition to programs receiving earmarked federal funds. Instead, the opposite intention appears from the repeated defeats of precisely the limited view Temple now advocates.
Although Congress refused to amend Title IX to limit its coverage to programs receiving direct federal funding, it did adopt two other amendments. In 1974, Congress amended Title IX to exclude from coverage the membership practices of social fraternities and sororities, the Young Men's and Women's Christian Associations, the Girl and Boy Scouts, the Camp Fire Girls, and voluntary youth service organizations with traditional memberships of one sex principally limited to persons less than nineteen years of age. See 20 U.S.C. § 1681(a) (6). In 1976, Congress amended Title IX to exclude from coverage programs and activities of the American Legion taken in connection with the Boys and Girls State and Nation programs, father-son or mother-daughter activities at education institutions, and beauty pageant scholarships. See 20 U.S.C. § 1681(a)(7)-(9).
These programs were excluded because they were not among the education programs and activities that Congress intended Title IX to cover. 120 Cong.Rec. 39993 (1974) (remarks of Sen. Bayh). The congressional debate on the 1974 amendment shows that Congress amended Title IX to clarify its intent that these noneducational programs not be covered. Congress was not concerned, however, that the funding on which coverage of these programs was based was both direct and indirect. See, e.g., 120 Cong.Rec. 39992 (1974) ("Most of these fraternal organizations could not continue to exist without this kind of indirect financial assistance from the colleges and universities .... Title IX would be extended to (the Boy Scouts, the Girl Scouts, YMCA, YWCA, and Camp Fire Girls) based upon the fact that they receive direct Federal funds for various educational programs.") (emphasis added) (remarks of Sen. Bayh).
HEW issued final regulations implementing Title IX three years after enactment of the statute. The interpretation of a statute by the agency charged with its administration is entitled to deference. Sands, 2A Sutherland's Statutes and Statutory Construction § 49.05 at 238 (4th Ed. 1973). Temple argues the application regulation, 34 C.F.R. § 106.11 (1980), is invalid. Under the General Education Provisions Act, 20 U.S.C. § 1232, the regulations did not become effective until forty-five days after promulgation to allow Congress to review and veto them if it so chose. Congress reviewed the regulations exhaustively. The House Subcommittee on Postsecondary Education of the Committee on Education and Labor held six days of hearings to determine if the regulations "as they are written are consistent with the law, or whether they should be returned to the agency for redrafting until they are consistent with the law from which they must draw their authority." Hearings on Title IX Before the Subcommittee on Postsecondary Education of the House Committee on Education and Labor, 94th Cong., 1st Sess. 97 (1975) (remarks of Rep. O'Hara) (hereinafter cited as Hearings). The testimony of the thirty witnesses appearing before the committee and the additional 132 written statements comprise 664 pages. The majority of the witnesses focused on the specific issue relevant here: the meaning of "receiving Federal financial assistance" in the context of intercollegiate athletic programs. See, e.g., id. at 46 (Statement of the American Football Coaches Association President Darrell Royal); id. at 66 (Statement of Kathy Kelly, President, U.S. National Student Association); id. at 321 (Prepared Statement of Dr. Bernice Sandler, Association of American Colleges, submitted by Lynn Heather Mack, Executive Director, Intercollegiate Association of Women Students); id. at 401 (Statement of Janet L. Kuhn, attorney). Yet, after this lengthy and strenuous debate on the regulations' coverage of indirectly funded athletic programs, Congress did not reject the regulations as being inconsistent with Title IX.
Congress could not have been unaware of the hot debate over coverage of indirectly funded athletic programs.
Twelve members of Congress themselves testified at the subcommittee hearings. Representative Patricia Schroeder testified that she was
shocked by the hysteria that has surrounded these regulations, especially those relating to sports and athletic programs .... The specter of that sacrosanct institution, big time football, dying at the height of its glory, of football heroes in tattered uniforms playing to half-empty stadiums, are alarmist tactics that serve only to cloud the issue.
Hearings at 206 (statement of Rep. Schroeder). Title IX coverage of intercollegiate athletic programs was even the subject of newspaper comic strips at the time of the hearings and later. See Reprints in U.S. Commission on Civil Rights, More Hurdles to Clear, Women and Girls in Competitive Athletics, Clearinghouse Publication # 63 (July 1980). If Congress had not intended Title IX to cover indirectly funded athletic programs, the intense media and congressional scrutiny of the regulations on athletics should have led to a congressional resolution of disapproval. But it did not.
III. Case Law
The majority of cases interpreting Title IX, Title VI and section 504 support an expansive reading of the phrase "receiving Federal financial assistance." Civil rights statutes such as Title IX generally are entitled to broad interpretation to facilitate their remedial purposes. See, e.g., Griffin v. Breckenridge, 403 U.S. 88, 97, 91 S. Ct. 1790, 1795, 29 L. Ed. 2d 338 (1971) (Reconstruction Civil Rights Statutes to be accorded "a sweep as broad as (their) language.") (citations omitted); United States v. El Camino Community College District, 454 F. Supp. 825 (C.D.Cal.1978), aff'd, 600 F.2d 1258 (9th Cir. 1979), cert. denied, 444 U.S. 1013, 100 S. Ct. 661, 62 L. Ed. 2d 642 (1980) (Title VI to be construed liberally to effectuate its remedial purpose). See also Cannon, 441 U.S. at 686 n.7, 99 S. Ct. at 1952 n.7 (the scope and purpose of Title IX place it within the civil rights enforcement scheme that Congress has created over the past 110 years).
The issue here-the meaning of "receiving Federal financial assistance" in section 1681-is of very recent and limited impression. The parties have cited, and I have found, only two cases directly on point. Bennett v. West Texas State University, 525 F. Supp. 77 (N.D.Tex. 1981); Othen v. Ann Arbor School Board, 507 F. Supp. 1376 (E.D.Mich.1981). Both support defendant's position.
In Bennett, female undergraduate participants in the West Texas State University athletics program sued the university for operating the program in violation of Title IX. The university was granted summary judgment on the basis that the athletic program received no direct federal funding and, therefore, was not subject to Title IX. Bennett and Othen, restricted their underpinnings to the limited history also cited by defendant here to hold that Title IX covers only directly funded programs. For the reasons set forth above, I respectfully disagree with the analysis and result in both cases.
The argument that Temple makes here was rejected in the context of section 504 in Wright v. Columbia University, 520 F. Supp. 789 (E.D.Pa.1981), and Poole v. South Plainfield Board of Education, 490 F. Supp. 948 (D.N.J.1980).
In Wright, Columbia University refused to let plaintiff try out for the intercollegiate football team because he had sight in only one eye. The university asserted that section 504 did not cover the program because it received no direct federal assistance. Judge Troutman stated that defendant's argument would allow federally assisted institutions to circumvent federal anti-discrimination policy by allowing them
to dissect themselves, at whim, into discrete entities, to allocate federal dollars into programs which cannot discriminate against handicapped persons, and to free privately obtained funds from those programs and instead to channel such money into programs purportedly immune from Section 504 strictures.