*2 ANDERSON, Before RONEY and Circuit TUTTLE, Judges, Judge. Circuit Senior TUTTLE, Judge: Senior Circuit
I. INTRODUCTION proper This case involves the ambit provi- enforcement non-discrimination and IX the Education Amend- sions seq. 1681 et It ments U.S.C. § order,- arises from the Court’s U.S.-, 73 L.Ed.2d decision, (1982), vacating prior our 652 F.2d (5th Cir.1981), remanding Bell, Board of Education v. of North Haven 512,102 72 L.Ed.2d how far the (1982). We must determine Health, Ed- Department gave ucation and extend the ceives substantial funding,2 Welfare1 Con- gressional assistance” to gender- mandate to eliminate “substantial Iron Arrow. discrimination; assistance, determined, the Secretary This “simple justice” based ago subjected prohi- to Title IX’s policy years of this articulated against gender-based dis- bition discrimination. Kennedy respect President *3 crimination on basis of race: the at Iron Arrow was established the time of Simple justice requires public University. the of the The first founding funds, to all taxpayers which of all races president University provided the contribute, spent not be fashion impetus founding granted for its and a entrenches, which encourages, subsidizes Arrow; University charter to Iron two or results in discrimination. Direct racial “signed presidents have into law” Iron Ar- Federal, State, discrimination or local row’s constitution and amendments it. governments prohibited by is the Consti- campus Arrow only organization Iron is the discrimination, tution. But indirect granted by that holds a the charter Univer- through funds, just the of use Federal is pro- University longer While the no sity. as invidious.... mailing vides secretarial and services meeting Society, nothing President’s Civil facilities to the Rights Message Second (June 19, longer 1963), faculty set out in the indicates that members no Hearings membership screening serve on committees before No. 5 of the Subcommittee colleges, House in all of the the law school. Judiciary, except Committee 88th Sess., 4, II, 1446, addition, Cong., many plaques 1st ser. and monuments Pt. (1963). Nichols, campus pay Also see Lau v. around the tribute to Ar- Iron 569, 786, members, 1 row and its the recognizing L.Ed.2d Socie- (1974), quoting (1963) ty as “the honor the Cong.Rec. highest University (Remarks of of Miami.”3 Humphrey). Sen. The Iron the Society pres- Arrow is most enjoin sought Iron Arrow the Secre- tigious honorary-recognition society at the tary terminating funding University of Miami in Florida. Iron Ar- previous opinion, the In our we University.
row elects men to membership. Male affirmed the of a district court’s denial students, undergraduate graduate and permanent injunction. F.Supp. See alumni, administrators, faculty, of and staff (S.D.Fla.1980). conclusion, In reaching this University eligible the for election to First, findings. we made two we found Society the on the basis of love for Alma regulation the the HEW Mater, leadership, scholarship, humility. acted, 86.31(b)(7) Secretary Reg. (1975), 40 Those elected are Society initiated into the 24128,4 Fed.Reg. provi- “effectuates” the through “tapping” ceremony. The Secre- of the sions is consistent with tary determined, by 26, 1976, May letter of objectives achievement of the of that stat- Miami, the of private Second, ute. we found institution of re- higher history education which and the Society close of Univer- Department Health, prominent 1. The Education The most of these monuments responsibilities building. Welfare’s for educational insti- union on a mound outside the student tutions under IX were transferred to the At the time the initiated his adminis- Department 301(a)(3) Education against University, § Ar- trative action Department Organization Act, of Education “tapping” ceremony re- row conducted 96-88, (1979). No. Pub.L. 93 Stat. The moving “tapees” conducting from class and Health, Department of Education and Welfare ceremony highly visible mount. reorganized Department was then opinion Health and Human Services. This will regulation, originally codified as 45 party appropriate refer defendant as sim- 86.31(b)(7) (1975), has since been cod- § C.F.R. ply “Secretary.” 106.31(b)(7) con- as 34 ified C.F.R. DOE, with the 45 Fed. nection establishment $46,000,000 2. The Miami received Reg. of federal funds in in the form of con- tracts, grants, and student assistance. sity, continuing tangible non-tangible controversy, we must assess whether support of Society by the University render effectively the relief re- constitutes adequate assistance to impute quested by appellant. Green, Mills v. fairly Iron Arrow’s sex discrimination prac- 651, 653,16 159 U.S. L.Ed. 293 tices to the University itself. (1895).5 important It to bear in mind that, while is the defendant
We now must reconsider our conclusions in the administrative action that provided in light of the “program-specific” language lawsuit, the stimulus for this Iron Arrow is in the Supreme Court’s North Haven deci- plaintiff requested injunctive which has sion. We face validity the issue of the relief and policies whose form the basis HEW implementing Title We, therefore, the Secretary’s IX actions. and the Secretary’s interpretation must consider whether key enjoining several phrases regulations. Secre- task, tary To assist us from cutting funding in this off federal requested briefs *4 from the parties within 60 would result days. any benefit Socie- ty and amicus Iron Women’s Commission of the Arrow.
University of complied Miami with our re- This case continues to a present live
quest. The Secretary failed to brief the First, controversy. we find that may substantive we issues but filed a Motion for grant still plaintiffs effectual Suggestion of relief. Mootness and a Motion for The Secretary require, Remand. Iron still could for the responded Arrow by vigor- ously opposing compliance this motion. to be found in We turn first question mootness reaching before take more the substantive issues. steps substantial than merely prohibiting Iron Arrow from using campus facilities for
II. MOOTNESS its “tapping” ceremony. The Secretary The Secretary refers the Court conceivably could demand that the Univer letter 23, 1982, dated September sity, of Univer- in addition to policy, its stated dises sity Foote, President Edward T. II to C. tablish the historical ties between it and Warren, Rhea Iron Arrow’s alia, Chief. That Iron by, Arrow inter revoking the expresses letter the new policy of the Uni- charter given by the University to the Soci versity’s Board of Trustees that it will ety, not refusing recognize Iron Arrow any permit Iron Arrow to resume its discrimina- longer, withdrawing “sponsorship” of Iron tory practices campus on even if Iron Ar- by Arrow the office president, row succeeds in this lawsuit. This letter prohibiting using Iron Arrow from the Uni presumably policy refers to the adopted by versity’s injunction name. An would serve the Trustee Executive Committee on July insulate the plaintiffs from all of these 15, 1980, setting forth the requirement appropriate additional enforcement actions Iron may only Arrow return to if campus we, should example, uphold the validity meets the code organizations, for student regulation HEW but find which includes a policy of non-discrimina- Secretary’s application of the regulation in tion. The joined amicus, Secretary, con- particular instance improper. tends that Iron injury Arrow’s is attributa- The second reason this case continues to solely ble to the University’s decision to present is, controversy quite simply, live keep it off campus, and not to any because University’s present policies action Department of Education or display permanence. no assurances of We any possible action this Court. note that University’s policy of exclud-
In determining whether
ing
this case
campus,
adopt-
Arrow from
even if
presents
still
justiciable
Article III
good faith,
case or
ed in
change
at a
that,
evaluating
Mills,
We note
appearing
the mootness of a
on the record.
at
159 U.S.
pending
court,
appeal
case
from a lower
S.Ct.
empowered
are
to consider extrinsic evidence
present
policy
later date. The
trustee
bar
L.Ed.2d 781
We thus feel
ring
campus
Iron Arrow from
while the
proceed
free to
reconsideration of
Society
maintains
member
Appellees’
merits of this appeal.
Motion
ship practices
reflects a shift from
itself
for Remand is denied.
University policy
April
1977,6
adopted
and thus indicates
such policy
state
III. RECONSIDERATION IN LIGHT
changeable.7
A
readily
long
ments
line
OF
Haven
North
supports
Court cases
the propo
“[vjoluntary
sition that
discontinuance
A. The
Regulation
Statute
HEW’s
an illegal
does not
activity
operate to
901(a)
Section
of the Educa-
remove a case
judicial
from the ambit of
of 1972 provides
Amendments
power.” Walling v. Helmerich & Payne,
shall, on
person
sex,
the basis
“[n]o
37, 43,
11, 14,
328 U.S.
L.Ed. 29
in,
excluded
participation
be denied
(1944). E.g.,
&
St. Paul Fire Marine Insur
of,
subjected
benefits
or be
to discrimi-
531, 537-38,
ance Co. v. Barry, 438 U.S.
nation
education
ac-
2923, 2927-28,
Ct.
(1978);
5.
A recipient shall on the basis of sex: organization nexus and to render the regulation. determi- Such perpetuate Aid or discrimination nations will turn on the facts and circum- against any person by providing signifi- specific stances of situations. *6 cant assistance to any agency, organiza- tion, person or 40 Fed.Reg. (1975). discriminates on the basis of providing aid, sex in any benefit It should be noted that the statute itself or service to employees. students or fails to pro define the terms “education Fed.Reg. gram activity.” 901(c) or Section explained purpose statute does define and function of the term “educational institution,” Regulation organizations: on “outside” as follows: 86.31(b)(7) purposes
Section For prohibits recipient chapter of this an educa- from assisting another tional institution party any public pri- which dis- means or criminates on the basis serving preschool, of sex in vate or elementary, secondary students or employees school, recipient. vocational, or institution of This section might apply, example, professional, education, higher except financial support by the recipient to a that in the case of an educational institu- 9. The term “institution” is throughout public undergraduate used cies of institutions exceptions 901(a)(1) pro- to Title higher traditionally IX. Section education that and continu- respect admissions, vides ally section gender, have admitted students one 901(a) applies only 901(a)(5); institutions of vocational section social fraternities and sorori- education, professional education, gradu- ties, and voluntary youth organizations, and service higher education, ate and to institutions 901(a)(6); Boys/Girls section State/Nation undergraduate higher Specific conferences, education. ex- 901(a)(7); section father-son and ceptions policies are made for the admissions mother-daughter activities at educational insti- begin admitting of schools that tutions, students of 901(a)(8); scholarships section time, 901(a)(2); both sexes for the first section “beauty” pageants by awarded in institutions religious schools, 901(a)(3); military section education, 901(a)(9). higher section schools, 901(a)(4); poli- section the admissions school, composed subject of more than one prohibitions to the and sanctions of
college, or department which are adminis- Title every each and program or activi- separate units, tratively such term means at ty the University receiving federal assist- school, each college, such or department. ance is so to the statute’s strictures. We also find that the statutory language 1681(c). 20 U.S.C. § and the pre-enactment statute’s post- case, In our initial consideration of this enactment legislative history bear out our we interpreted these comments to mean conclusion that Congress intended that Title that, while the sanction of a cutoff of feder- IX cover honor societies such as Iron Ar- al funds normally recipient’s is limited to a row. discriminatory program or activity directly receiving funds, federal a different stan- B. The North Haven Decision dard applies where an organiza- “outside Haven, In North case, Supreme up- tion” is involved. In we found held the validity it necessary prohib- the substantiality consider programs funded educational relationship between a university and discriminating outside party employment and whether that party’s gender. activities relate basis of In closely applying so to a university’s conclusion educational specific facts in the activity, or to stu- North Haven case, dents or employees program, in that the Court noted that “pro- Title IX is these activities should be gram-specific” considered as ac- both in prohibition tivities of a university purpose gender itself for the discrimination its fund cutoff of terminating federal funding. Thus, sanction. the Court left little doubt applies those We now turn our attention to the effect activities receiving federal funds. of the' Court’s decision in North Haven on our previous holding that decision, however, The Court’s leaves Secretary properly authority exercised his open several questions for this Court. For under Title IX (1) when he promulgated example, Court explicitly recognized Regulation 86.31(b)(7) applied the it did “not ‘pro- undertake to define Regulation to compel the University to dis- gram’ Thus, ...” associate itself from the Society long “program” encompass term outside ac- Iron Arrow maintains its all-male member- tivities such as Iron Arrow if the activities ship policy or face a termination of federal are considered as programs of the Universi- funds. ty Also, itself? who falls within the defini- tion of “recipient” funding? After study, careful we now deter addition, we still must determine the means law, mine that the case including the North by which federal funding may “benefit” a decision, Haven strongly supports prior our *7 program that engages in discrimination. conclusion Regulation that 86.31(b)(7) is val id both on its face applied. and as Each Analysis C. and every federal program at the Universi ty remand, is necessarily Appellants, on discriminatory as a result contend that of program-specific Iron Arrow’s relationship language to the of North Haven Univer sity. The practices requires the of discriminatory “tracing” money of the federal to a Society, by specific then, their nature and in light university program of the which in turn, intertwined Arrow, histories of Iron Arrow and the benefitted Iron for the Uni- University, infect the entire academic versity subjected mis to be to Title IX’s sanc- sion of the University. In reaching this tions. They argue that neither Iron Arrow conclusion, it is immaterial that federal nor the University “kept penny has one funds are not directly earmarked to Iron federal financial assistance from being, Arrow itself. The effect of the program- available to the women students at the Uni- specific requirements of North Haven is versity as much as to the male students that, while the University as a whole is not cases, there.” Appellants rely on three dealing sports each denied the programs only benefits of.” Not does
schools,
support
to
proposition
their
that
prohibition
word “benefit” allow for the
to
applies only
programs
those
many subtle
substantive forms
discrimi-
receiving
Amicus,
direct
funding.
nation, the
unspecific
act of “denial” is so
contrary,
argues
legislative
that
to
of a
prohibited
admit
host of
actions.
history requires that
term “program
or
significant
Congress
We also believe it
activity”
broadly
be read
so as to include
provide
did not
in the
“edu-
statute
honorary societies. Amicus also relies on cation
Feder-
program activity receiving
or
several cases which employ various theories
al
party
financial assistance” be
actual
“recipient”
to broaden the
definition
or
engages
in the
act.
“program” under Title IX.
statute
revealing
The
also is
for the ex-
provides
North Haven
a framework for
ceptions
exceptions
contains.10
fall
These
analysis
scope
Title IX.
into
roughly
two classes. The first class
case,
the Court
looked
to
first
excepts
coverage
from Title IX’s
the admis-
language
statute,
then
legisla-
sions
policies
types
certain
schools
tive history, both from
before
since
do not admit
or
students of one
the other
enactment,
Title IX’s
finally
to
case
sex or that
admit
a limited number of
to
law determine if employment discrimina-
male or female
The
students.
second class
tion falls within the ambit of
IX.
Title
We
excepts
coverage
from
certain activities or
employ this
approach
same
here.
organizations in otherwise covered schools.
exceptions
signifi-
existence of these
1. The statute
901(a).
cant
understanding
scope
to
of §
We now have the
benefit of the
Congress
provided
would not have
such ex-
ruling
Court’s
North Haven that an
ceptions unless it believed that the activities
agency’s authority under Title IX both to
policies,
excep-
the absence
promulgate regulations and to terminate
tions, would otherwise have been covered.
specific
funds is
limited
program or Thus, for
social
example,
fraternities
activity receiving federal
financial aid.
specifically
coverage,
even
excepted
The statute fails on its own to define unam-
without
of the direct
clear indication
biguously
“program
the terms
activity”
they
federal funding
would receive.11 Simi-
“recipient.”
We therefore
turn
must
larly, Congress
necessary
except
felt it
legislative
history for a clearer under-
policies
though
certain admissions
even
ad-
standing of the boundaries of these terms. missions programs
rarely
are themselves
Nothing in the language of the statute
exceptions indi-
funded. These
itself, however, indicates that Iron Arrow’s
Congress’
cate
contemplation of a broad
activities should not be
attributable
reading
“program-specif-
of Title
IX
and thus be
IX.
requirements
apply
gener-
ic”
that would
especially
We
note
did not
al
all
overriding
features of
educational
prohibition
limit its
merely to discrimina-
institutions.12
entrance to
funded
or to
among
discrimination
participants
actual
legislative history
Pre-enactment
programs.
those
The language of Title IX
sweeps
pre-enactment
far more
If the
broadly.
legislative history
In addition to
language,
IX
participation
“excluded from
reveals
it is that Con-
anything,
*8
“subjected
in” and
to
under,”
gress
discrimination
expressly contemplate
did not
Congress
phrase
also used the broad
type
problem
today.
“be
is before us
C,
III,
3,
post-enactment leg
10. See footnote 9.
12. See section
on
infra,
history,
islative
these
for further discussion of
University,
Temple
exceptions.
11. See Haffer v.
524
541,
F.Supp. 531,
(3d
attd
557
1972,
1964,
important
considering
Two factors are
intention in
not
that is of signif-
pre-enactment
legislative
of Ti
history
icance in
IX.”
interpreting Title
North
First,
IX.
IX
as a
presented
tle
Title
was
Haven,
We note Title IX’s 3. Post-enactment Congress indicates that contem- explicitly IX’s post-enactment legislative his- plated types of at least one coverage of insight prob- tory significant offers of origi- harms suffered the women who pro- face. lem we Several amendments and to There nally complained Secretary. amendments, is posed as con- as well formal that fu- of HEW regulations, substantial evidence in record sideration confirm desire to ban discrimination in Congress’ employers regard membership ture often in nex- adequate those honor societies with an very Iron Arrow as a desirable attribute. receiving us to universities federal funds. Bayh, sponsor, Senator Title IX’s noted the effect of on opportunities educational fu- published regula- its final Title IX HEW employment. ture He the need identified Secretary June sub- tions on a, for “fair chance to secure to regulations Congress mitted for [for women] pursuant 431(d)(1) to ...,” review section jobs of Cong.Rec. their choice Act, General Education Pub.L. Provisions (1972), a significant as motivation for amended, 93-380, 88 as Stat. 20 U.S.C. enacting Title IX. 1232(d)(1). provi- “laying This before” § sum, pre-enactment legisla- Title IX’s designed sion to an Congress was afford history tive respect is inconclusive with to and, opportunity regulation to examine the whether Congress actually im- envisioned regulation if it found “inconsistent with puting the practices organiza- of “outside authority Act from which it derives its to recipients. tions” federal fund The his- ..,”. disapprove to in a concurrent reso- tory general does principles. indicate two adopted If no disapproval lution. such was First, in an limiting administrator’s days, within 45 be- regulation would authority funds, to off Congress cut federal come effective.16 was about concerned abuses of the termina- of in- disapproval Two resolutions were very sanction different from Senate, in the was troduced but neither the Secretary’s in the actions instant case. upon. acted 121 Cong.Rec. See Thus, there no “pin- indication these, id. 22940. One of Senate point” provision designed prohibit was proposed Concurrent Resolution Sen- pursuing type of Helms, disapproved regula- ator would have impose sanctions he seeks to in this case. applying tions Title IX to Second, Congress clearly intended that Title activities not receiving Vi’s and prohibitions Title IX’s apply when- funds. The not reported resolution was out ever federal funds bestow a benefit Similarly, committee. the House failed amongst manner. Included pass disapprov- concurrent resolutions equal those benefits are employment oppor- Cong.Rec. Congress al. See tunities for equal women as result of thus register failed to its dissatisfaction opportunities. educational regulations with the question this case. Cong.Rec. (1964) (Quoting case, prima pre- from Lead- facie or an inference or ership Rights). any Conference on sumption, judicial Civil proceeding. 8(a)(b) provides 94-142 Section of Public Law period 16. This 45 day already had run 7(b), that section which amended 20 U.S.C. Congress time amended U.S.C. 1232(d)(1), to take § effect November 1232(d)(1) provide that: 1975. While failure resolutions Congress adopt Failure of the a con- such disapproval in the absence amendment respect any current resolution with such explicit- Congress be cannot read to mean that regulation prescribed final Act, such ly explicitly approved new represent, respect shall not to such found them to consistent with Title be regulation, approval finding final an many note that obviously members were consistency with the Act from which it de- indeed aware that their actions authority any purpose, rives its nor shall implicit finding an would consistency. construed as adopt failure a concurrent resolution approval construed evidence of an finding consistency necessary to establish
559
Second,
in North Haven
imagine,
not-
it is difficult
except
to
As
ed,
interest
relatively
fraternity
insubstantial
few cases where a
or sorori-
very
“[T]he
disapproval
the resolutions of
a house in which
given
ty might occupy
construc-
signifi-
introduced seems particularly
paid
part by
were
tion was
for in some
federal
proceeded
since
has
amend
Congress
funds, any
cant
to
sort
federal
an
of direct
aid such
it
disagreed
section 901 when
has
could
Yet
organization
receive.
this fact
interpretation
HEW’s
of the statute.”
102
that,
deter
from
Congress
believing
did not
(footnote omitted).
at 1924
fraternities
sororities were spe-
unless
Ti-
cifically excepted
coverage
from the
of
Five
IX
attempted amendments to Title
IX,
their
poli-
tle
admissions
amend-
merit our careful attention. These
ambit
cies would fall within the
of section
Congress contemplated
ments reveal
901(a).18
problem
coverage
of Title IX’s
of out-
organizations, including
side
honor societies
1975,
attempted
In
Senator Helms
to lim-
Arrow,
such as Iron
and that
did
Congress
coverage
Title
to
explicitly
IX’s
educa-
prevent
act to
such an
extension
programs
tional
re-
directly
and activities
In the
authority
HEW’s
Title IX.
ceiving federal
financial assistance.
S.
only
proposed
one of these five
amendments
2146,
(1975).
Cong.Rec.
Congress
121
23845
actually
Congress
Title
adopted,
amended
1976,
pass
to
declined
this amendment.
In
IX,
regula-
even before it reviewed HEW’s
similarly
to
attempted
Senator McClure
tions, to except social fraternities and soror- define federal financial assistance as assist-
youth
organiza-
ities and voluntary
service
ance received
from the federal
901(a).
tions from the reach of section
390,
Cong.
government. Amendment
93-568,
3(a),
(1974).
Pub.L.
88 Stat. 1862
(1976).
Rec. 28144
The Senate defeated
Bayh,
sponsor
amend-
Senator
amendment.
McClure
at-
Senator
also
ment, emphasized that:
tempted
amend section
to limit the
This exemption
covers
social meaning
“educational
activi-
organizations;
apply
Greek
it does not
gradua-
to such “as are curriculum or
ty”
professional
fraternities
sororities
requirements
tion
institutions.”
practices
whose admission
have a
might
389,
Cong.Rec.
Amendment
on
discriminatory effect
the future career
fl976).
arguably
This amendment
would
opportunities
aof woman.
Regulation 86.31(b)(7)
placed
beyond
have
Secretary’s authority
under Title IX.
(1974).
Cong.Rec.
Senate,
52 to
declined
vote of
This amendment clarifies two
aspects
scope
prohibi-
to so limit the
IX’s
Congress’
First,
thinking.17
strong
it is
evi-
122 Cong.Rec.
tions.
dence that Congress intended that Title IX
apply
organizations
Mathis
Representative
outside
unsuccess-
Arrow, which might
post-gradua-
attempted
affect the
an
fully
broaden
amendment
opportunities
IX,
employment
containing
of women.
exceptions
certain
to Title
note,
Congress’
divining
inexplicable
Congress
It is useful
ed
it is
by examining
post-enactment
intent
exempt
specifically
amend-
felt
the need to
them
statute,
continuity
ment to a
basis.”)
the substantial
another
membership from the 92nd to the 94th Con-
emphasize
point
We
at this
gress.
Brigham Young
See 1976
U.L.Rev. 133.
aware that
social
well
these
fraternities
might only
sororities
receive indirect
federal
Hatter,
F.Supp.
(“Logic sup-
See
at 541
funding.
In the course of the amendment’s
ports
reading
supports
a broad
of Title IX and
debate,
Bayh
Senator
stated
“Most
upholding
validity
regulations.
Con-
organizations
these fraternal
could not contin-
gress explicitly amended Title IX to exclude
exist
ue to
without
this kind
indirect finan-
social fraternities and sororities
its cover-
colleges
cial assistance from the
and universi-
age.
imagine
possible
I cannot
what
Cong.Rec.
(empha-
ties.
...”
funds could have been
earmarked
added).
sis
programs.
indirectly (if
all)
If such
benefit-
ted
never
were
cover-
intended to be
specifically
901(a)(6)
(9),19by
sections
also
84 L.Ed.
[60
*11
excepting professional
(1940)....
fraternities and so-
1311]
rorities
coverage
from the
of
IX.
In
Title
at
102 S.Ct.
1925.
response
inquiry
of
scope
his
4.
relevant
law
The
case
amendment,
proposed
Representative Math-
The relevant case
strongly supports
law
clearly
is
that honorary
stated
societies
our
prior finding
acted
subject
would remain
to Title IX. 122
his authority
within
when he issued Regula-
Cong.Rec.
addition,
(1976).
13535
In
sever-
86.31(b)(7)
and when he determined
representatives
al other
strongly denounced
that the
to a
of
is
cutoff
policy
Representative
behind
Mathis’
funding
relationship
federal
due to its
with
proposed amendment and noted that
reaching
decision,
Iron Arrow.
In
we
this
discriminatory membership practices of
rely primarily upon the case of
of
Board
among
socities were
Title
abuses
Taylor County,
Public Instruction of
Flori-
designed
IX was
remedy.
Cong.
122
See
Finch,
(5th
da v.
Cir.1968), by
F.2d 1068
(1976).
Rec. 13535-36
Finch,
are bound.20 In
the for-
These
attempts
numerous
to alter Title
interpreted
mer Fifth Circuit
the term
scope
coverage
IX’s
of
reveal that
“program” in section 602 of Title VI to
was well aware that Title IX would be mean the use of federal funds under an
prohibit
construed to
discriminatory mem-
grant
individual
statute
which the school
bership practices among honor societies
specific
received aid to
of
remedy
areas
such as Iron
expres-
Arrow. We take these
educational
at
need.
F.2d
1078.21 The
authoritative,
sions of Title
scope
IX’s
as
court
general finding
held
of discrim-
light of the
language
recent
operation
ination
of an elementary
Court in North Haven that:
insufficient,
and secondary
system
school
is
funding
the termination of all federal
Although postenactment developments
because,
that system
“the termination pow-
cannot be accorded “the
weight
con
er
reaches
those
which would
temporary legislative history, we would
utilize federal
funds for unconstitutional
be
ignored
remiss if we
these authorita
ends.” 414 F.2d at
Court found
expressions
tive
concerning
scope
”
that HEW must
finding
make a
of discrimi-
purpose of Title IX....
Cannon v.
in the operation
nation
of each program
Chicago,
U.S.,
at
by a particular
funded
statute before cut-
note
at
7],
S.Ct.
note
Where
[99
ting off
funds.
“an agency’s statutory construction has
been ‘fully brought
to the attention of
The Finch court
recognize
went on to
public
and the Congress,’ and the
policy
of Title IX mandates the
latter
sought
has not
to alter that inter
broad and flexible application of the fund
pretation although it has
provisions:
amended
cutoff
statute in
respects,
other
presuma
then
We conclude with a word of caution.
bly the legislative intent has been cor
finding
that a termination of funds
rectly discerned.” United
v. Ruth
States
(sic)
IV
Rights
Civil
erford,
544,554,
note
S.Ct.
Act
a program by pro-
must made on
[99
2470, 2476,
10, 61
(1979),
basis,
note
L.Ed.2d
gram
we do
mean to
indicate
68]
quoting
Leader,
Apex Hosiery Co. v.
a program
must
considered in
9, supra.
applicable
19. See
interpretation
footnote
21. This
to Title IX
virtually
language
because
identical
Haven,
that statute.
See North
20. The case
law of the former Fifth Circuit
(“the meaning
applicability
Appeals
VI
adopted by
Court
of Title
been
has
the Elev-
guides
construing
Appeals
binding prece-
enth
useful
there
Circuit Court of
fore, only
language
dent
to the extent
unless
and until overruled or modified
history
contrary
suggest
City
sitting
Title IX do not
en banc. Bonner v.
Prichard,
interpretation.”);
(11th
Cir.1981).
Cannon
We that the exist ence of the all-male Iron Arrow Honor Soci It precisely because Iron Arrow pur- ety prestigious as the most honorary-recog ports to represent the best at the University nition society University perva at the has a in terms of achievement and because it in sive effect discriminatory upon women in fact commands so much respect among all of the University’s programs, academic members of the campus community that the federally pro funded or not. All federal Society’s effects of the discriminatory prac- grams at the of Miami University are nec tices are pervasive pernicious. and so essarily by gen infected what amounts to a University We are disturbed that the com- eral overriding policy University. munity, theory premises which in relations This University’s infection results from the among upon vig- its members free and close historical ties with Iron Arrow. ideas, interplay classify orous should
The Supreme that, Court has recognized stigmatize quality of those ideas solely author, sense of inferiority affects the motiva- because of the sex their whether “[a] tion of a child to learn.” Brown v. Board of male or female.22 Consider, example, chemistry previous opinion, a woman In our we noted that: professor ques- who secures a federal contract do not While we reach the ultimate support graduate what, anything, her research and hires several tion as to if would be done program, by completely students as assistants. In such a withdraw teaching, which is not related to assistance from Iron Arrow in order professor conducting bring compliance motivation of this her itself into without aban- doning males-only policy, research and the motivation of her female re- its we conclude affected, adversely imagine any search assistants that we are unable to contin- maimer, they a subtle because know ued association of Mi- University community formally history, will never rec- ami its would ognize accept, through the mechanism of constitute a continuation of the “substan- Society, the Iron Arrow their work is of tial assistance” the trial court found quality the same as that of students or to exist. male faculty. decision,
In Supreme Haven North conform with limitations enacted in 901 and sections Court quotes approvingly from HEW’s Title decision, IX regulations and from the Finch (footnote omitted). at 1927 102 S.Ct. upon rely. which we The Supreme Thus, we find that stated that: opinion in Haven directly Court’s North recognized reading our broad Department supports pro [HEW] gram-specific prohibition applies authority section limited its when discriminatory program a “benefit-
terminate funds to particular programs
ted”
federal financial
or
assistance when
that were found to have
violated
assisted
itself is infect
program
and it continued:
discriminatory
ed
environment.23
“Therefore, an
education
assessing
impact
Iron Arrow’s
part
activity
operated by
thereof
male-only policy upon
com-
recipient
financial assistance
we are
munity,
of the belief
its effect
administered
will
Department
analogous
women is most
to that of a
requirements
of this
policy at an
admissions
edu-
if it
regulation
receives
benefits
*13
cational institution. While a discriminatory
interpreta
from such assistance. This
policy
women
precludes
admissions
from all
only
tion is consistent with the
case
benefits
programs,
of educational
specifically ruling on the
con
language
practices
subtlely
Arrow’s
more
under-
VI,
tained in Title
which holds that
partici-
mine the self-worth of
who
women
Federal funds
un
terminated
Both, however,
pate
programs.
in
upon
der
VI
Title
finding
they
pervasive
general
share
same
effect
are
a discriminatory
‘infected
envi
university community and
upon a
neither
’
ronment
... Board of Public Instruc
program
Iron Arrow nor an admissions
is
Finch,
tion of Taylor County,
v.
Florida
usually the direct
of federal
recipient
dol-
1068,
(5th Cir.1969).”
F.2d
1078-79
many
Congress
lars. Since
courts and
have
Fed.Reg.
consistently
condemned
ad-
policies,24
adopt their analyses
missions
we
By
adopting
expressly
the Fifth Circuit
in
support
further
of our conclusion.
opinion construing
program-
Title VI as
specific, HEW apparently indicated its
VI originally proscribed
racial dis-
intent
the Title IX regulations be
higher
crimination in
education
with
interpreted
read,
like
fashion.
respect
So
admissions. 42 U.S.C.
2000c-
statement,
agency
F.2d at
448.
also
We
note the need
defer to
captures
since in
expertise
construing
federal contract a school
statute
when that
portion
support
agency
charged
some
funds to
its over-
is
statute’s
with the
adminis
head,
including
Co.,
Aerospace
the central
administration
tration. See NLRB Bell
very
activities,
expenses
274-75,
often
such as student
94 S.Ct.
[1761-62]
support
Sands,
(1974);
Iron Arrow
from
benefits
the federal
2A Sutherland’s
L.Ed.2d
Construction,
Statutory
of the
Office
President
re-
Statutes and
§ 49.05 at
1973).
ceived
(4th
as a result of the allocation of overhead
ed.
While the
Court
from
recognized
principle,
federal contracts. Because of our broader
Haven
North
same
holding
program
rely
analysis
that each
assisted
at
did not
on this
because
necessarily discriminatory,
agency’s
interpretations
fluctuating
it
unnecessary
impact
employment portion
regulations.
for us to determine the
HEW’s
program-specific
upon
of Title IX’s
sanctions
See
Since the
102 S.Ct.
n. 29.
Secre
support
tary
consistently applied Regulation
the direct re-
overhead
has
86.-
by general
31(b)(7),
ceived
administrative
entities such
we do not face
restriction in
a similar
University’s
upon
interpretation.
relying
agency’s
Office of the President.
Congress explicitly
supra,
exceptions
relied
the same
note
IX’s
24. See
for Title
language
against discriminatory
prohibitions
from the Finch
it re-
decision when
admis-
exceptions
viewed the HEW
consist-
These
due to
their
sions.
historical
ency
general
with Title IX. See Sex Discrimination
and do not
our
concerns
undermine
admissions,
Hearings at 188-89.
discussion about
follows.
6(a)(2) (1964).
college
pro-
adopting
reading
A
student was
Courts
a narrow
programmatic prohibitions of Title IX con
only if he or she
tected from discrimination
sistently have conceded the inapplicability
permitted
or was not
was denied admission
analysis
of their
to an
perva
institution’s
Dis-
attending
public college.
to continue
sive practices
go beyond
discrete aca
facilities,
criminatory
segregated
such as
programs,
demic or non-academic
when
classrooms,
dormitories or
were not
they have addressed the issue. For exam
grounds
they
themselves
for action unless
in Rice
Har
ple,
v. President & Fellows of
rose to the level of an admissions decision
(1st Cir.1981),
College,
vard
During
pendency
the
of this
the
appeal,
adopted a
in full accord with the
policy
University of
categorically
Miami has
Secretary’s position.
regardless
stated that
of the outcome of
omitted)
(footnotes
not
proceedings,
may
Iron Arrow
The
Department
defendant
of
injury
Education
Iron Arrow’s
would be attributable
solely
University’s,
has
to the
suggestion
independent
likewise filed a
of mootness
de-
keep
campus,
and a
cision to
Iron Arrow
motion to
also
off
remand. That brief
position may
ultimately
whatever
tak-
suggests
University
that the
of Miami
by
Department
en
the
Education.
have
changed
now
position
based
circumstances, Iron
longer
Arrow no
on its own non-discrimination
the
policy,
would have a sufficient
the
stake in
out-
University will not
to
permit Iron Arrow
of this
litigation
satisfy
come
Article
campus
return to
it agrees
unless
to admit
III and the case should be dismissed as
women and that
policy applies irrespec-
moot.
tive of
Department
en-
Education’s
arguments compel
forcement efforts. The
re-
to the
Government
These
a remand
posi-
minds
district court to determine the
question
present
us
the initial
in this
the University
tion of
with
to Iron
litigation
respect
standing
was the
of Iron Arrow to
activities,
campus
Arrow’s
as determined
bring the suit against
the federal agency.
Trustees,
just
perhaps
Board
The
initially
case was
dismissed for lack of
importantly to
position
determine the
This
standing.
Court reversed in
light
Department of Education in
the “unequivocal
position
statement of the
University’s position
Supreme
and the
University
Miami that but for
Court’s decision in North Haven Board of
Health,
action of the
Educa-
Bell,
Education v.
102 S.Ct.
Welfare,
tion and
would
have barred
1912, 72
L.Ed.2d 299
There is a
and would not in the future bar the Iron
possibility
plaintiff
and the defend-
Arrow
Society
Honor
from its campus.”
in agreement
ants are
on both the law and
Califano,
Society
Iron
Honor
v.
Arrow
in
the facts
this lawsuit. The Government’s
(5th Cir.1979).
F.2d
merits,
directly
brief does not
confront the
suggests
following
but
,
a footnote:
The Government today
ar-
appropriately
to the
gues
Prior
Court’s decision
change
that a
posi-
the University’s
Haven,
Department
North
took the
moot
would
Iron Arrow’s grievance
position
“assistance”
against
the Government
The
defendant.
Iron Arrow of a nonfinancial nature was
brief argues:
coverage
sufficient
invoke
IX
litigation,
the outset of this
Iron
[A]t
“significant
regula
under
assistance”
re-
personal
Arrow satisfied the
stake
North Haven casts
tion.
considerable
quirement.
per-
inability
Iron Arrow’s
however,
on that analysis,
doubt
hold
form
con-
campus plainly
its functions on
ing
validity
pro
of regulations
injury
stituted sufficient
Al-
fact.
on “the
mulgated
depends
though
injury
attributa-
program-specific limitation of
§§
expel
ble
University’s
decision to
(50
902”
S.Ct. at
U.S.L.W.
[102
Iron
campus,
1926]).
ap
Arrow from
lower federal courts
peals
reach of
proper
had stated
this decision was based
divided over
wholly
the statute to
non-funded educa
threat
entirely
HEW’s
of enforce-
some
tional
or activities where
ment and that but for this threat
goes
financial assistance
permit
would
Iron
Arrow
university. Compare Rice v. President
campus.
return to
In these circumstanc-
663 F.2d
College,
and Fellows of Harvard
es,
injury
Arrow’s
fairly
could
(1st
denied,
Cir.1981),
cert.
[456
traced to HEW’s conduct and
like-
would
102 S.Ct.
L.Ed.2d 444]
ly
be redressed
a favorable decision.
F.2d 14
University,
Temple
Haffer
*17
argues
It then
if indeed Iron Arrow
v.
Cir.1982),
City
on
(3d
relying
Grove
permitted
campus
will not
return to
Cir.1982), cert.
Bell,
(3rd
tory position, then
also
well-reasoned decision Bell, (E.D. F.Supp. 321 a decision on the effect of permit Richmond v. does not Va.1982). North Haven on this ease. only permits The decision this Court I would remand to district court as it Government to enforce mootness, and if there is consideration of suit, them at the time of this
interpreted controversy, to decide the still a case or require and does not the Government found in they may merits on the facts as interpretation. adhere to that gloss “program-specific” relation to Although opinion the court’s recites regulations as 901 and and on the § § Arrow the motion vigorously opposed interpreted now be they may of the Government to remand for a deter- light of North Haven. in the Government mootness, the thrust of Iron mination Court, have position Arrow’s was to this level, appellate decide issues which court.
should first be decided the trial may
Iron Arrow concedes that this case moot, present depending
now be
position of the and the Govern-
ment. It requests require and the to file Government CORMIER, al., et Melvin J. Court, and pleadings on the issues in this Plaintiffs-Appellants, thereafter determiné whether the case moot. INDUSTRIES, INC., al., et P.P.G. The cases concerning proposition Defendants-Appellees. activity voluntary illegal discontinuance operate does not to remove the case from 81-3485. No. judicial power are conceptually ambit Appeals, Court of United States inapplicable. party The is not a Fifth Circuit. object injunctive not the relief. an in- Government has tried render April junction unnecessary by discontinuing ille- gal activity. changed The facts have not to may
that the Government well decide funds, regardless
withhold of Iron Arrow’s not,
position as to it can or can whether might
regardless of what a federal court
order. sum, appears
In the Court has issue legal
reached out to decide a difficult par- well have an effect on other
ties in a case where it has no effect
present parties. merits, our simply
On the I would vacate to the district
prior opinion and remand North light
court to reconsider in the to do Assuming they
Haven. are inclined
so, chance ought to have a full parties they litigate the facts of case of that decision
apply to the law program-specific” its reference to “the
ánd my
limitations of 901 and §