The Leadership Conference on Civil and Human Rights

August 1985: Volume 1, Number 1

Do The Civil Rights Statutes Still Exist?

Between 1964 and 1975, Congress passed four civil rights statutes prohibiting discrimination based on race (Title VI of the Civil Rights Act of 1964), sex (Title IX of the Education Amendments of 1972), disability (Section 504 of the Rehabilitation Act of 1973), and age (Age Discrimination Act of 1975) in any "program or activity" receiving federal funds. Until 1982, these statutes were interpreted as providing institutionÓwide coverage. If a university received federal funds for its library or computer center the university was prohibited from discriminating not just in those facilities but throughout the university - the entire institution was covered. In 1984, at the urging of the Department of Justice, the Supreme Court ruled in Grove City v. Bell (___ U.S.___, 104 S.C. 1211 (1984)) that Title IXs prohibition against sex discrimination applied only to the specific "program or activity" receiving federal funds. Today a university that receives federal funds for its computer center would be free to discriminate against women in the chemistry laboratory or on the athletic field. Further, since all the civil rights statutes use the same language to describe coverage, Grove City applies as well to Title VI, Section 504, and the Age Discrimination Act. In fact, Assistant Attorney General William Bradford Reynolds stated immediately after the Grove City decision that this narrow interpretation of Title IX's coverage applies to all the nondiscrimination statutes.

The result has been to limit severely the ability of the Federal Government to prohibit discrimination in institutions receiving federal funds. The broad reach of the civil rights laws has been drastically narrowed, and civil rights protections many Americans thought they had have been lost. Quite simply, it is now permissable for the Federal Government to subsidize discrimination against women, minorities, disabled persons, and senior citizens.

How Grove City has hurt enforcement efforts

The Office for Civil Rights (OCR) in the Department of Education and its counterpart in the Department of Health and Human Services are two of the agencies primarily responsible for enforcement of the civil rights laws. Enforcement of the laws is carried out through the investigation of citizens' complaints, periodic compliance reviews, corrective action agreements where a violation has been found, and monitoring of those agreements. If voluntary compliance is not achieved, cases may be referred to an Administrative Law Judge for a hearing. In the first nine months after the Grove City decision, 90 education cases in the administrative enforcement process were adversely affected. Further, in cases referred by OCR to administrative law judges, the Grove City decision has been used as a jurisdictional defense. Hospitals have also raised the Grove City decision as a defense in ten cases involving allegations of employment discrimination by disabled persons. Like educational institutions, hospitals have argued that the section of the hospital (e.g. the medical records center or the laundry) in which the person worked received no federal funds.

Two recent education decisions from administrative law judges are summarized below. In both cases, OCR had determined that a violation existed and voluntary compliance was not obtained. But the victims of discrimination lost out anyway.

1. The Lauderdale County School District, Alabama was found in violation of Section 504 of the Rehabilitation Act of 1973 and Title IX of the Education Amendments of 1972. OCR alleged that the school board failed to renew the contract of a handicapped teacher because of the handicap, and used an employment application which improperly inquired as to the applicant's health, physical defects, and marital status. The administrative judge's decision (April 23, 1985) stated that OCR did not have jurisdiction to bring and maintain action against the school board, because the teacher was not employed in a program specifically identified as receiving federal monies. Section 504 of the Rehabilitation Act did not protect this teacher.

The ruling went a step further and determined that federal compensation (in the form of Impact Aid) for local school districts whose enrollment and resource needs have been increased by federal activities does not constitute federal financial assistance and thus does not trigger the civil rights statutes. This portion of the ruling contradicts OCR's previous policy that Impact Aid constituted nonearmarked federal financial assistance which would trigger institutionÓ or district-wide coverage (July 31, 1984 Memorandum from the Assistant Secretary for Civil Rights to Regional Civil Rights Directors). In 1984 the Impact Aid Program was funded at $585 million. The case was dismissed without determining the merits.

2. Similarly, in an administrative proceeding against Mecklenburg County Public Schools, Virginia the school district's motion to dismiss the proceedings was granted because the district's federal funds were not earmarked to the specific program where discrimination was alleged (Administrative Proceeding in the United States Department of Education, June 2, 1985). The case was dismissed although OCR had determined that the school system used achievement grouping policies and procedures which resulted in racially identifiable classes without educational justification; employed a curricular tracking system which resulted in racially identifiable tracks; employed policies and procedures which did not permit movement between those tracks from middle school to high school. As a result, OCR found, minority students were locked into segregated classes that denied them educational opportunity. But because of Grove City's limited view of the law, Title VI did not provide a remedy for the students. -

To restore these protections, Representative Augustus Hawkins (D-CA.) and Senator Edward Kennedy (D-MA.) introduced the Civil Rights Restoration Act of 1985 (H.R. 700/S. 431). The Restoration Act, the top legislative priority of the Leadership Conference, would restore the civil rights statutes to their pre Grove City status - the receipt of federal monies would trigger institutionÓwide coverage. Cosponsored by 49 Democratic and Republican Senators and 209 Democratic and Republican Representatives, the bill has been reported out by the House Committees on Education and Labor, and the Judiciary. House floor action is anticipated shortly after the August congressional recess. In the House Education and Labor Committee, amendments were added which would change substantive law including a provision to repeal longÓstanding regulations protecting students and employees against discrimination in education programs if they choose to have an abortion. A second amendment would extend exemption from Title IX coverage to religiously "affiliated" schools. These amendments, which are inconsistent with the principle of restoration, have placed the bill in jeopardy. The House Judiciary Committee has reported out a pure restoration measure. In the Senate, the Committee on Labor and Human Resources held one hearing on July 17, 1985. As of August 2, the committee which is chaired by Orrin Hatch (RÓUT.) had not scheduled additional hearings or a committee mark-up.