Attorneys Fear Title IX Has Lost Its Bite

In the mid-1980s, female high school athletes in 24 Arizona school districts became upset because their schools scheduled girls’ sports such as basketball and softball in off-seasons, thus diminishing their chances of being seen by college recruiting scouts and receiving athletic scholarships. Boys’ sports were not scheduled in the off-seasons.

This seemed to be illegal under Title IX of the U.S. Civil Rights Act, which prohibits sex discrimination in educational settings--or at least used to until the mid-1980s--and which had been applied extensively to sex discrimination in athletic programs. The students filed complaints with the Civil Rights Office of the U.S. Department of Education.

The department decided to investigate discrimination complaints in 10 of the 24 districts, dropping complaints in the other 14. This had nothing to do with the possibility of discrimination. The students whose civil rights received protection from the government attended schools in the 10 districts that had funneled some of the federal funds they received into athletic programs.

In other words, “discrimination depends on the whim of a school district as to where to put its money,” said Marcia Greenberger, a managing attorney with the nonprofit National Women’s Law Center in Washington.

The Arizona case is one on a list of cases the Office of Civil Rights has dropped in the last two years, including cases that the office dropped after investigations and even findings of discrimination, Greenberger said. The center obtained the list of 63 cases by suing the government in 1985; it has since added 70 more cases to its list of discrimination complaints the government has dropped. Last week, the Department of Education announced that it has dropped more than 800 complaints and compliance reviews since 1984.

This is the legacy of the Supreme Court’s 1984 Grove City College vs. Bell decision which, in the view of critics like Greenberger, has destroyed the intent of civil rights legislation and provided educational institutions with a federal mandate to discriminate on the basis of race, ethnicity, sex and age.

Title IX of the 1973 Civil Rights Act prohibits discrimination in any educational institution that receives federal funds. The Grove City decision limited enforcement by determining that the law does not apply to institutions as a whole, but only to those programs or departments that get a portion of the funds.

The Administration’s argument in the Grove City case was essentially one of the rights of a private institution to be free of federal regulation. Grove City College, a private school in Pennsylvania, does not receive government funds; however, a number of its students receive federal Basic Education Opportunity Grants. The Justice Department contended that by accepting students who receive federal tuition grants, the entire school is not subjected to Title IX, and the Supreme Court agreed, holding that only the school’s financial aid office was affected by the federal civil rights law.

The National Women’s Law Center has just issued its documentation of the effects of the decision in a report, “The Impact of Grove City: The Death Knell of Title IX?”

Of the 63 cases that the Department of Education dropped, Greenberger said, “most were Title IX, some were Title VI (which prohibits discrimination on the basis of race and national origin), some Section 504s (an administrative ruling against discriminating against the disabled) and some were age discrimination. In a number they had found discrimination and not yet remedied it, and they dropped the cases.”

Among the California cases that the department dropped after Grove City were:

--A complaint of sex discrimination in the Los Angeles Southwest College’s intercollegiate athletic department. The Office of Civil Rights had ordered a compliance review, but closed the case on the basis of the Grove City decision.

--After preliminary investigation, a complaint at Claremont Graduate School and Pomona College that student health insurance plans treated pregnancy-related care less favorably than other temporary disabilities was dropped, using the Grove City standard. The departments involved did not directly receive federal funds. There have been several similar cases involving student health services around the country.

--The department closed the case of a UC Davis medical student who complained of sexual harassment by a professor. The justification was that the medical school got federal money, but the funds weren’t used in programs for first-year medical students or in the department in which the professor taught.

In a case that seemed to take the Grove City decision about as far as it could go, the Civil Rights Office decided it could not investigate a complaint of sexual harassment filed by a student at Northeastern University in Boston because the dormitory in which the alleged incident took place was not built or renovated with federal funds.

Greenberger and others fear that the Grove City decision and the government’s narrow interpretation of it is being easily used by educational institutions to channel money away--and thus discriminate at will--in departments where sex discrimination has been traditional such as math, computer science and athletics.

Schools may also channel federal funds out of academic programs and into student aid programs, so that whole academic departments are not covered under the law as issued by the Supreme Court. In another case at UC Davis Medical School, Greenberger said, a psychiatric resident filed a complaint of discrimination on the basis of sex and national origin. The student’s academic department got federal funds, but the Department of Education claimed it was for financial aid to students and so only the financial aid office was covered by civil rights law.

Also, limited resources for civil rights enforcement are further taxed by this policy. “There were precious few resources before,” Greenberger said. “Now they’re just tracing money. The department’s resources are tied up following this paper trail (of where federal money goes rather than whether discrimination is occurring).”

Greenberger was among people testifying in two days of hearings in the Senate Labor and Human Resources Committee on the Civil Rights Restoration Act which would, in effect, revoke Grove City by once again requiring that civil rights be enforced institution-wide by schools that receive any federal money. The hearings were March 19 and last Wednesday.

The issue has been, more than most, subject to the tides of politics. The Carter Administration had opposed the Grove City case for limited enforcement all the way through the federal appeals process, Greenberger said. Then the Reagan Department of Education changed sides in the case and won its point of view in the Supreme Court.

No sooner had the Supreme Court spoken than the Civil Rights Restoration Act of 1984 was introduced--and stopped in the Senate Committee on Labor and Human Resources, chaired by conservative Sen. Orrin Hatch (R-Utah), a chief opponent of the Civil Rights Restoration Act. (The House passed the bill by a wide margin at that time.)

In a reversal as critical for this issue as the change from Carter’s Department of Education to Reagan’s, Hatch has been replaced as chairman of the Labor and Human Resources Committee by Sen. Edward Kennedy (D-Mass.), a chief proponent of the broader civil rights legislation.