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November 14, 1988

ARLENE PFEIFER, a minor by her parent and natural guardian DELMONT PFEIFER

The opinion of the court was delivered by: WEBER

 Both sides seek reconsideration of our previous Opinion and Order. Because of further developments in the law of Title IX following Grove City v. Bell, 465 U.S. 555, 79 L. Ed. 2d 516, 104 S. Ct. 1211 (1984) we must vacate our prior Opinion and Order. As explained below we conclude that plaintiff's Title IX claim must be dismissed but she may proceed with her civil rights claims under 42 U.S.C. § 1983 and § 1985.


 Plaintiff attended the Marion Center Area High School and by all accounts was a very good student, excelling academically and participating in a wide variety of extracurricular activities. Plaintiff was selected for membership in the high school's chapter of the National Honor Society (NHS).

 In her junior year of high school plaintiff learned that she was pregnant. Plaintiff advised school officials that, although unmarried, she had decided to deliver the baby and raise it, and to complete her high school education and graduate with her class.

 Following the birth of her baby in the fall semester of her senior year, plaintiff was advised that her continued membership in the NHS would be reviewed. After meeting with the 5 faculty advisors who comprise the NHS chapter's Faculty Council, plaintiff was advised that she would no longer be a member of the NHS. The local School Board later affirmed this action.

 Plaintiff contends that she was dismissed from the NHS because she was an unwed mother and because she was discriminated against on the basis of sex. Defendants contend that plaintiff was dismissed because she admitted that she had voluntarily engaged in pre-marital sex and such conduct is inconsistent with the NHS' requirements of leadership and character.

 Plaintiff has asserted claims under Title IX, 42 U.S.C. §§ 1983 and 1985, the equal protection clause of the 14th Amendment, and several pendent state claims. Defendants sought summary judgment on various grounds including the argument that the Title IX claim was no longer viable in light of the then recent decision in Grove City v. Bell. After a review of the motions, briefs and evidentiary materials we concluded that summary disposition of the Title IX claim was not appropriate, but that Title IX preempted the more general civil rights claims. See, Middlesex County Sewage Authority v. National Sea-Clammers Association, 453 U.S. 1, 101 S. Ct. 2615, 69 L. Ed. 2d 435 (1981).

 Plaintiff sought reconsideration of our conclusion that Title IX preempted the civil rights claims. Our decision on that point has since found support elsewhere. Mabry v. State Board for Community Colleges and Occupational Education, 597 F. Supp. 1235 (D.Colo. 1984), aff'd. on other grounds, 813 F.2d 311 (10th Cir. 1987) Defendants sought reconsideration of all aspects of their motion for summary judgment.


 Title IX is program specific. The enforcement powers of Title IX extend only to those "programs" that receive, directly or indirectly, federal assistance. Generally, the grant of federal assistance to one program within a larger entity will not subject the entire entity to Title IX coverage. Grove City College v. Bell, 465 U.S. 555, 79 L. Ed. 2d 516, 104 S. Ct. 1211 (1984).

 What Grove City failed to do is to define "program". At the time of our previous Opinion and Order this uncertainty compelled denial of defendants' motion for summary judgment on this point. Subsequently a number of courts have addressed the issue and provided sufficient guidance.

 The common thread in the reported decisions is that "program" is defined by Congressional intent as reflected in the scope of the grant. Thus if funds are earmarked for a specific use, the scope of that use provides a strong indication of the Title IX coverage. See, United States v. State of Alabama, 828 F.2d 1532 (11th Cir. 1987) (program defined by grant, must be specific); Foss v. City of Chicago, 640 F. Supp. 1088 (N. D. Ill. 1986), aff'd 817 F.2d 34 (7th Cir. 1987) (Rehabilitation Act); Mabry v. State Board of Community Colleges, 597 F. Supp. 1235 (D.Colo. 1984), aff'd 813 F.2d 311 (10th Cir. 1987) (college received earmarked funds, but none for physical education program, so Title IX did not apply); Bennett v. West Texas State University, 799 F.2d 155 (5th Cir. 1986) (Title IX did not apply to intercollegiate athletics program which received no earmarked funds); O'Connor v. Peru State College, 781 F.2d 632 (8th Cir. 1986) (where college received federal research grant involving all departments, "program" for Title IX was academic program. This did not include college athletics and so Title IX did not apply to ex-coach's challenge to discharge); Arline v. School Board of Nassau County, 772 F.2d 759 (11th Cir. 1985) (Rehabilitation Act; school district's receipt of non-earmarked funds extended application of Act to all programs paid for from District's general fund); Jacobson v. Delta Airlines Inc., 742 F.2d 1202 (9th Cir. 1984) (Rehabilitation Act: "program" limited to federally subsidized operations and did not extend to airline's total operations); United States v. Baylor University Medical Center, 736 F.2d 1039 (5th Cir. 1984) ("program" limited to hospital in-patient and emergency room services which receive Medicare/Medicaid); Stephanidis v. Yale University, 652 F. Supp. 110 (D.Conn. 1986) (Rehabilitation Act; coverage limited to summer program, and not English Department generally); Chaplin v. Consolidated Edison of New York, Inc., 628 F. Supp. 143 (S.D. N.Y. 1986) (receipt of CETA and WIN funds does not trigger coverage of all hiring); Henning v. Mayfield Village, 610 F. Supp. 17 (N.D. Ohio 1985) (village's receipt of Federal Revenue Sharing Funds over which it has complete discretion makes entire village the "program" for purposes of the Rehabilitation Act).

 Most important on this topic is United States Department of Transportation v. Paralyzed Veterans of America, 477 U.S. 597, 91 L. Ed. 2d 494, 106 S. Ct. 2705 (1986). The Court was called upon to define the scope of the "program" for enforcement under the Rehabilitation Act of 1973, 29 U.S.C. § 790 et seq., an enforcement scheme similar in design to Title VI and Title IX. Rejecting the argument that federal funding of ...

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