Grove City College v. Bell Brief Amicus Curiae in Support of Respondents

    No. 82-792

I n  T h e

&it|imn£ ( to r t  uf tfp? Ituteii l^tatea
October Term, 1982

Grove City College, individually and on behalf
of its students; Marianne Sickafuse; Kenneth  J.

H ockenberry; J enifer S. Smith and V ictor E. Vouga,
Petitioners,v. ’

T. H. Bell, Secretary of U.S. Department of Education; 
Harry M. Singleton, Acting Assistant Secretary 
for Civil Rights, U.S. Department of Education.

On Writ of Certiorari to the United States Court of Appeals 
for the Third Circuit

BRIEF FOR THE LAWYERS’ COMMITTEE FOR 
CIVIL RIGHTS UNDER LAW AS AMICUS CURIAE 

IN SUPPORT OF RESPONDENTS

Maximilian W. Kempner 
Richard C. Dinkelspiel 

Co-Chairmen 
Norman Redlich 

Trustee
William L. Robinson 
Norman J. Chachkin 
Debra A. Miller 

Lawyers’ Committee for 
Civil Rights Under Law 

733 15th Street, N.W.
Suite 520
Washington, D.C. 20005 
(202) 628-6700

Attorneys for Amicus Curiae

Roger L. Waldman * 
Alan Gabbay 
Patricia J. Langer 
Seth M. Lieberman 

1 Rockefeller Plaza 
New York, N.Y. 10020 
(212) 957-9800

* Counsel of Record

W i l s o n  - Ep e s  P r i n t i n g  C o . ,  In c . - 7 8 9 - 0 0 9 6  - W a s h i n g t o n , D . C .  2 0 0 0 1



TABLE OF CONTENTS
Page

INTEREST OF AMICUS CURIAE ............................  1

SUMMARY OF ARGUMENT ....................................... 3

ARGUMENT:
I. Grove City College Is A Recipient Of Federal 

Financial Assistance For Purposes Of Title IX 
Because Its Students Receive Federal Educa­
tional Grants Based Upon Their Matriculation 
At The School .......................................................  4
A. The language of Title IX does not limit its 

coverage to agencies or institutions receiving 
direct cash payments from the federal gov­
ernment; and the language and structure of 
the BEOG program compel the conclusion 
that grants to Grove City College students 
are a form of “Federal financial assistance”
to the institution ............................................. 4

B. This construction of the statutory language
accords with its consistent interpretation by 
the Department of Health, Education & Wel­
fare and the Department of Education.......  11

C. The legislative history of Title IX and that 
of Title VI supports the conclusion that Title 
IX applies to Grove City College because its
students were awarded BEOGs..................... 13
1. The Legislative History of Title IX.........  13
2. The Legislative History of Title VI.........  16

D. The post-enactment history of Title IX dem­
onstrates the Congressional intent to apply 
Title IX to institutions assisted through di­
rect student g ran ts .........................................  19

II. As A Recipient Of Federal Financial Assistance 
Through The BEOG Program, Grove City Col­
lege May Properly Be Required To Execute An 
Assurance Of Compliance With Title IX ...........  22



ii

TABLE OF CONTENTS—Continued
Page

A. The Title IX assurance and applicable regu­
lations are “program-specific” as required
by North Haven............................... -........ —- 22

B. Because BEOG grants provide assistance to
the entire program of Grove City College, 
that entire program of the institution is 
covered by Title IX — .....................- ..... -.....  24

CONCLUSION ...... ..........................................................  30



Ill

TABLE OF AUTHORITIES
Cases: Page

Board of Public Instruction v. Finch, 414 F.2d
1068 (5th Cir. 1969) ................... ......... 6n, 23, 25n, 26n

Bob Jones Univ. v. Johnson, 396 F. Supp. 597 
(D.S.C. 1974), aff’d mem., 529 F.2d 514 (4th
Cir. 1975) _______ ________ ______ __ ____ 9, 13n, 28n

Bob Jones Univ. v. United States, 51 U.S.L.W.
4593 (U.S. May 24, 1983) ..............   19

Bossier Parish School Bd. v. Lemon, 370 F.2d 847
(5th Cir.), cert, denied, 388 U.S. 911 (1967).... 28n

Cannon v. University of Chicago, 441 U.S. 677
(1979) _____ ____ _______ __________ ____ _ 2n, 15

Committee for Public Educ. v. Nyquist, 413 U.S.
756 (1973) .....        10-11

Grove City College v. Bell, 687 F.2d 684 (3d Cir.
1982) .................................. ............ ...... ............. lln , 24n

Grove City College v. Harris, 500 F. Supp. 253
(W.D. Pa. 1980) .................. ............... ................. 5n, 8n

Guardians Ass’n v. Civil Service Comm’n, 51
U.S.L.W. 5105 (U.S. July 1, 1983) ........... _.lln, 12,19

Haffer v. Temple Univ., 524 F. Supp. 531 (E.D.
Pa.), aff’d, 688 F,2d 14 (3d Cir. 1982) .............  27n

INS v. Chadha, 51 U.S.L.W. 4907 (U.S. June 23,
1983) ____ ______ ________ _________ ____ _ 19n

Iron Arrow Honor Soc. v. Heckler, 702 F.2d 549
(5th Cir. 1983) ______ ____ ____ ______ ____  25n

Lau v. Nichols, 414 U.S. 563 (1974) .....................  6n
Mueller v. Allen, 51 U.S.L.W. 5050 (U.S. June 29,

1983) ........... ............... ....... ...................................  l ln
North Haven Bd. of Educ. v. Bell, 456 U.S. 512

(1982) ________ __ ________ ______________ passim
Norwood v. Harrison, 413 U.S. 455 (1973)__ __ 10

Statutes:
20 U.S.C. §■§ 401 et seq. .......... .... ............. ....... ..... . 17
20 U.S.C. § 427 ........... ...... ............. ..........................  26n
20 U.S.C. §§ 461-65 ....................... ........... .... ........ . 17n
20 U.S.C. § 1070(a)........... .................. ..... ......... .....  7
20 U.S.C. § 1070a .... ....... .... ...... .............. .......... ....  5n
20 U.S.C. § 1070a(a) (1) (A) ...................................  7



IV

20 U.S.C. § 1070a(a) (1) (B)  ............. ........... .......  7n
20 U.S,C. § 1070a(a) (2) ............................. ............  7-8
20 U.S.C. § 1070e ......... .............................................5n, 28n
20 U.S.C. § 1091 (a) (5) ______ _______________  5n, 8
20 U.S.C. § 1092 __ _____ __ ______ _____ ___ _ 9n
20 U.S.C. § 1094(a) ....................................... ........ . 9n
20 U.S.C. §§ 3801 et seq. ____ ______ ______ ____  6n
General Education Provisions Act, § 431(d)(1),

20 U.S.C. § 1231(d) (1) ............ ............... ..........  19
National Defense Education Act, §§ 201, 204-06, 

reprinted in 1958 U.S. Code Cong. & Ad. News
1898-1902 ___________ _______ ___ _______ lln-12n

Title VI, 1964 Civil Rights A c t..... ................. ....... passim
Title IX, Education Amendments of 1972, 20

U.S.C. § 1681 et seq............... .......... ............ ....... passim
20 U.S.C.A. §§ 241a-m (Supp. 1969) .................. 6n
42 U.S.C. § 242g (1970) (repealed by Pub. L. No.

94-484, § 503(b) (1976) ___ ____ _______ ___  17n
Pub. L. No. 92-318, § 139C, reprinted in 1972 U.S.

Code Cong. & Ad. News 335........ ....... ..............  8n
Pub. L. No. 93-568, 88 Stat. 2138 (1974) .............  19n
Pub. L. No. 94-482, § 412, 90 Stat. 2234 (1976).... 19n

Regulations:
84 C.F.R. § 100.13(h) (1982) ___________ _____  13n
34 C.F.R. at 312-13 (1982) ....................................... 12n
34 C.F.R. § 106.1 (1982) ......................... .................  23, 24
34 C.F.R. § 106.2(g) (1) (ii) (1982) ..................... 12n
34 C.F.R. § 106.2(h) (1982) .................   13n
34 C.F.R. § 106.4 (1982) __________    22n
34 C.F.R. § 106.4(a) (1982) ..........   23
34 C.F.R. § 668.11 (1982) ................        9n
34 C.F.R. § 690.94 (1982) _______      9n
34 C.F.R. § 690.94(a) (3) (1982) .........      7
34 C.F.R. § 690.95 (1982) ........      9n
34 C.F.R. § 690.96 (1982) .....................     9n
45 C.F.R. at 93-94 (1967) ....... ..................... ...........  l ln
29 Fed. Reg. 16298 (Dec. 4, 1964) ...... ................ ..lln , 13n
29 Fed. Reg. 16304 (Dec. 4, 1964) ........................... l ln

TABLE OF AUTHORITIES—Continued
Page



V

TABLE OF AUTHORITIES—Continued
Page

29 Fed. Reg. 16988 (Dec. 11, 1964) ___ __ ______ _ 13n
40 Fed. Reg. 24128, 24137 (June 4,1975) ........... _12n, 13n
43 Fed. Reg. 20922, 20927-28 (May 15, 1978) ____  9n
44 Fed. Reg. 5258 (Jan. 25, 1979) ____ ____ _____  9n

Legislative Materials:
H.R. Rep. No. 2157, 85th Cong., 2d Sess. (1958), 

reprinted in 1958 U.S. Code Cong. & Ad. News
4731 ..........................      12n

H.R. Rep. No. 914, 88th Cong., 1st Sess. (1963), 
reprinted in 1964 U.S. Code Cong. & Ad. News
2391 ..................     17

H.R. Rep. No. 92-554, 92d Cong., 1st Sess. (1971), 
reprinted in 1972 U.S. Code Cong. & Ad. News
2462 ......................      14-15

Civil Rights Hearings Before Subcommittee No. 5 
of the House Committee on the Judiciary, 88th
Cong., 1st Sess. (1963) ___ ___ __ _____ _____  17

Sex Discrimination Regulations : Hearings Before 
the Subcomm. on Postsecondary Education of 
the House Comm, on Education & Labor, 94th
Cong., 1st Sess. (1975) ....... ...... ......... .13n, 20, 28n-29n

110 Cong. Ree. (1964) ........................... .............. 6n, 16-17
117 Cong. Rec. (1971) ............. ......... ....... 13,15n, 27n-28n
118 Cong. Rec. (1972) ---------------------- ----- 13n, 14, 16n
120 Cong. Rec. (1974) ........... .......... ......... ............  28n
121 Cong. Rec. (1975) __ ______ ______ ______  28n
122 Cong. Rec. (1976) .... ....... ....... ..... ........... ....... 21, 28n
S. 659, 92d Cong., 1st Sess. (1971) ....... ......... .....  13, 14
S. 2146, 94th Cong., 1st Sess., 12:1 Cong. Rec.

23847 (1975) .... ................ ........ ...........................  20
S. Con. Res. 46, 94th Cong., 1st Sess., 121 Cong.

Rec. 17300 (1975) ........ ....... .................. ....... . 20
1963 U.S. Code Cong. & Ad. News 1527 _______  6n



In The

(tort uf % Imtefr
October Term, 1982

No. 82-792

Grove City College, individually and on behalf
of its students; Marianne Sickafuse; Kenneth  J.

Hockenberry; J enifer S. Smith  and Victor E. Vouga,
Petitioners, v. ’

T. H. Bell, Secretary of U.S. Department of Education; 
Harry M. Singleton, Acting Assistant Secretary 
for Civil Rights, U.S. Department of Education.

On Writ of Certiorari to the United States Court of Appeals 
for the Third Circuit

BRIEF FOR THE LAWYERS’ COMMITTEE FOR 
CIVIL RIGHTS UNDER LAW AS AMICUS CURIAE 

IN SUPPORT OF RESPONDENTS

INTEREST OF AMICUS CURIAE 1
The Lawyers’ Committee for Civil Rights Under Law 

was organized in 1963 at the request of the President of 
the United States to involve private attorneys in the 
national effort to assure civil rights for all Americans. 
The Committee has, over the past 20 years, enlisted the 
services of over a thousand members of the private bar 
in addressing the legal problems of minorities and the 
poor. The Committee’s membership today includes past 
Presidents of the American Bar Association, a number of 
law school deans, and many of the nation’s leading 
lawyers.

1 Letters from counsel for the parties consenting to the submis­
sion of this brief have been filed with the Clerk.



2

The Lawyers’ Committee has had a longstanding inter­
est in eliminating sex discrimination in education and 
has consistently sought vigorous enforcement of Title IX 
of the Education Amendments of 1972.2 In 1975, the 
Committee established a Federal Education Project, 
which has worked to eliminate sex bias and stereotyping 
in the vocational education programs which are offered 
by most of the nation’s school districts. Research and ob­
servation by the Project indicate that there has been 
progress, over the last decade, in opening up opportu­
nities for female students to learn the skills which can 
lead to highly paid jobs traditionally viewed as “male 
only” and from which women were often barred. The 
antidiscrimination requirements of Title IX-—which have 
been interpreted to apply to all of a recipient school 
system’s vocational curricula, even though federal Voca­
tional Education Act funds constitute less than 20% of 
total program expenditures at the secondary school 
level—have contributed significantly to this progress.

Thus, the narrow approach to Title IX coverage pro­
posed by the petitioners could jeopardize the achievement 
of fully equal opportunity for women in education and 
employment. The ruling sought by petitioners also would 
have grave implications for the scope of the antidiscrimi­
nation requirement in Title VI of the 1964 Civil Rights 
Act.3 This possibility equally prompts the Committee’s 
interest in the present case, for Title VI has been a criti­

2 For example, the Committee filed an amicus curiae brie-f in 
Cannon v. University of Chicago, 441 U.S. 677 (1979) supporting 
the right of the petitioner in that case to bring a private suit to 
enforce Title IX.

3 This Court has recognized in several recent rulings that Title IX 
was patterned after Title VI, a broad prohibition of racial discrimi­
nation in federally assisted programs; similar language in the two 
statutes is construed in a similar fashion absent contrary indica­
tions in the law or legislative history. North Haven Bd. of Educ. 
v. Bell, 456 U.S. 512, 529 (1982); Cannon v. University of Chicago, 
441 U.S. at 694-98.



3

cal element of the civil rights gains made during the past 
two decades.

Over the course of its work in the field of education, 
the Lawyers’ Committee has come to realize that dis­
crimination on the basis of race or sex is a serious 
impediment to equal opportunity for students, faculty 
and other staff members, whether or not that discrimina­
tion manifests itself within a particular constituent part 
of an educational institution that is formally designated 
as the “recipient” of an “earmarked” federal grant or 
contract. Titles VI and IX were enacted, in part, to 
insure that federal financial assistance made available by 
the Congress for educational programs does not subsidize 
discriminatory activities. Petitioners’ interpretation of 
the scope of Title IX, which would permit an educational 
institution to receive funds made available by the federal 
government and to use those funds for its basic operating 
expenses, without undertaking any concomitant obligation 
to eliminate discriminatory practices, would thus be con­
trary to the purposes of Title IX.

SUMMARY OF ARGUMENT 
I

The Third Circuit correctly held that Grove City Col­
lege is a recipient of “Federal financial assistance” 
within the meaning of Title IX. The language of the 
statute, its administrative construction, and both its leg­
islative and post-enactment history support the ruling 
below. An educational institution is subject to Title IX 
because it is a recipient of “Federal financial assistance” 
when it participates in a program under which the stu­
dents whom it certifies are enrolled at its facilities re­
ceive federal funds, in amounts based in part upon the 
institution’s tuition and related charges, and the students 
are required to use those funds “solely for expenses 
related to attendance or continued attendance at such 
institution.”



4

II

The court below also correctly upheld the Department 
of Education's regulation requiring that Grove City Col­
lege, like other recipients of Federal financial assistance, 
execute a written Assurance of Compliance with appli­
cable substantive Title IX regulations of the Department, 
as a precondition to the award of BEOG grants to Grove 
City students. Both the Assurance and the Title IX regu­
lations explicitly refer to and incorporate the statutory 
requirement of “program specificity,” and both must 
therefore be sustained on the basis of this Court’s rea­
soning in North Haven Board of Education v. Bell, 456 
U.S. 512 (1982). Furthermore, because BEOG student 
grants are intended to, and do support the entire educa­
tional program offered by Grove City College, on the 
facts of this case the entire institution is subject to Title 
IX’s prohibition against discriminatory treatment be­
cause of sex.

ARGUMENT
I

GROVE CITY COLLEGE IS A RECIPIENT OF FED­
ERAL FINANCIAL ASSISTANCE FOR PURPOSES 
OF TITLE IX BECAUSE ITS' STUDENTS RECEIVE 
FEDERAL EDUCATIONAL GRANTS BASED UPON 
THEIR MATRICULATION AT THE SCHOOL
A. The Language of Title IX Does Not Limit its Cover­

age to Agencies or Institutions Receiving Direct Cash 
Payments from the Federal Government; and the 
Language and Structure of the BEOG Program Com­
pel the Conclusion that Grants to Grove City College 
Students are a Form of “Federal Financial Assist­
ance” to the Institution

Petitioners contend that Title IX is wholly inapplicable 
to Grove City College because the school does not “re- 
ceiv[e] Federal financial assistance” within the meaning 
of § 901(a) of Title IX of the Education Amendments of



5
1972, 20 U.S.C. § 1681 et seq. (“Title IX” ).4 According 
to petitioners, this conclusion follows from the fact that 
the College does not request direct cash payment from 
the federal government5 of the student assistance funds 
that make it possible for the individual petitioners to at­
tend the institution.'6 However, this construction is incon­
sistent with the plain language of the statute.7

The term “Federal financial assistance,” which first 
appeared in Title VI of the 1964 Civil Rights Act,8 is

4 Grove City College has not itself sought federal grant or con­
tract funds. Many students at Grove City, however, do. receive 
funds from the federal government under the Basic Educational 
Opportunity Grant (“BEOG”) program, 20 U.S.C. § 1070a, which 
they must use to> pay for tuition, room and board, and other 
expenses related to' their attendance at the College. See 20 U.S.C. 
§ 1091(a)(5).

*See Pet. Br. a t 14-17. Apparently the College foregoes the 
additional funds to which it would he entitled under federal law 
based upon the receipt of BEOG grants by its students, see 20 
U.S.C. § 1070e. (Pet. Br. at 26 n.24.)

6 See Grove City College v. Harris, 500 F. Sup-p. 253, 257 (W.D. 
Pa, 1980) (Amended Findings of Fact made by district court in 
this ease).

7 “Our starting point in determining the scope of Title IX is, 
of course, the statutory language.” North Haven Bd. of Educ. v. 
Bell, 456 U.S. 512, 520 (1982).

8 Petitioners suggest that the language' enacted as Title VI repre­
sents a narrowing of a broader, earlier legislative proposal; and 
that Congress, intended thereby to exclude from Title VI coverage 
all recipients of what petitioners term “indirect” assistance. (Pet. 
Br. a t 29-30.) This overlooks the fact that in § 602 of Title VI, 
Congress specifically excluded two forms of financial assistance: 
contracts of insurance or guaranty. The addition of specific exclu­
sions from the generic term “Federal financial assistance” in the 
final version of the statute eliminates the basis for any inference 
that other kinds of “Federal financial assistance,” whether “direct” 
or “indirect,” would not trigger coverage. See North Haven, 456 
U.S. at 521-22 (“the absence of a specific exclusion . . . among the 
list of exceptions, tends to support the: Court of Appeals’ conclusion 
that Title IX’s. broad protection . . . does extend . . .”).



6

deliberately broad and covers the multitude of different 
arrangements by which the federal government may pro­
vide aid or support to an institution or agency.® Nothing 
in the language of the statute supports petitioners’ view 
that the particular institutional entity, through which 
the “education program or activity receiving Federal 
financial assistance” is administered, must itself be the 
applicant for assistance or must receive a Treasury De­
partment draft of funds in order to trigger Title IX cov­
erage.9 10 It is sufficient that the “education program or

9 This is hardly surprising, in light of the Congressional purpose 
to insure “that public funds, to which all taxpayers of all races 
contribute, not be spent in any fashion ivhich encourages, subsidizes, 
or results in racial discrimination.” 110 Cong. Rec. 6543 (1964) 
(Sen. Humphrey, quoting from President Kennedy’s message to 
Congress of June 19, 1963, reprinted in 1963 U.S. Code Cong. & Ad. 
News 1527, 1534) (emphasis added).

110 Petitioners’ interpretation of the statute would by its logic 
exclude from Title IX coverage a local school district which partici­
pated only in federal programs administered through the States. 
Petitioners disavow this result (see Pet. Br. a t 17 n.17) but they 
do not explain how their position is consistent with their argument 
that Grove; City College is not subject to Title IX because the 
Treasury Department sends its BEOG checks to individual students 
rather than to the institution.

Petitioners’ concession is clearly correct. It has never been 
doubted, for example, that Title VI and Title IX apply to local 
school districts which obtain federal funds from their state educa­
tional agencies under the government’s largest program of aid to 
elementary and secondary education, Chapter 1 of the Education 
Consolidation and Improvement Act of 1981, 20 U.S.C. §§ 3801 
et seq., formerly Title I of the Elementary and Secondary Education 
Act of 1965. See, e.g., Lau v. Nichols, 414 U.S. 563 (1974) ; Board 
of Public Instruction v. Finch, 414 F.2d 1968, 1071 (5th Cir. 1969) 
(receipt of Title I [then known as Title II] funds under 20 U.S.C.A. 
§§ 241a-m (Supp. 1969)).

Petitioners’ attempted distinction of stater-administered pro­
grams rests upon their contention that BEOGs do< not amount to 
“Federal financial assistance” to an institution of higher education 
if the grants are paid to' its students under the Alternate Disburse­
ment System (see Pet. Br. a t 17 n.17). This argument in turn 
incorporates a basic misreading of the grant statute1. See text at 
pp. 7-8 infra.



activity” administered by the institution receive the as­
sistance in some fashion.11

The language and structure of the BEOG statute con­
firm our view that the Department of Education’s award 
of grants to Grove City students, upon certification by 
the College of their enrollment, makes the school subject 
to the coverage of Title IX.

The purpose of the federal higher education assistance 
programs, including BEOGs, is “to assist in making avail­
able the benefits, of postsecondary education to eligible stu­
dents . . .  in institutions of higher education . . . 20
U.S.C. § 1070(a).12 * * * * * * * 20 Since there must be both a student 
and an educational institution in order for postsecondary 
education to be “ma.[de] available,” and since grants are 
awarded to students based upon i(a) certification of a 
student’s matriculation at such an institution, 20 U.S.C. 
§ 1070a(a) (1) (A) ; 34 C.F.R. § 690.94(a) (3) (1982)
and (b) determination of financial need based upon the 
actual costs of attendance at the certifying institution,

7

11 This Court recently declared in North Haven, 456 U.S. at 521, 
that “if we are to. give [Title IX] the scope that its origins dictate, 
we must accord it a sweep as broad as its language.”

12 More specifically, BEOGs are designed to:
(i) . . . meet in academic year 1985-1986, 70 per centum of a
student’s cost of attendance not in excess of $3,700; and (ii) in
combination with reasonable parental or independent student
contribution and supplemented by the programs authorized
under subparts 2 and 3 of this part, will meet 75 per centum
of a  student’s cost of attendance, unless the institution deter­
mines that a greater amount of assistance 'would better serve 
the purposes of section [1070].

20 U.S.C. :§ 1070a(a) (1) (B) (emphasis added). This specific 
elaboration of purpose for BEOGs was added to. the Higher Educa­
tion Act in 1980. Prior to that time, the statute contained only the 
general “purpose” language of § 1070(a) quoted in text, but the 
amount of BEOG awards was still determined with reference to. an 
institution’s tuition and other charges. Petitioners’ claims concern­
ing the scope of Title IX coverage are the same, as we understand 
them, under either the pre- or post-1980 versions of the law.



8

20 U.S.C. § 1070a(a) (2), it is obvious that Congress in­
tended the BEOGs program to make “Federal financial 
assistance” available to institutions of higher education 
selected by eligible students.

Petitioners’ assertions that the College does not receive 
“Federal financial assistance” because Grove City stu­
dents need not use their BEOG funds for the school’s 
costs but “may” use the funds “for virtually any pur­
pose” (Pet. Br. at 5 n.9) simply blinks legality, as well 
as reality. The statute not only ties the amount of a 
grant to the actual costs at the particular institution 
which a student chooses to attend, but it also requires a 
statement (which must be filed “with the institution of 
higher education which the student intends to attend, or 
is attending” 10 * * *) stating that the grant “will be used 
solely for expenses related to attendance or continued at­
tendance at such institution.” 20 U.S.C. § 1091(a) (5).14 
Thus, BEOG awards flow through the student to the 
higher educational institution.1'5

18 The' statement filed with the school provides assurance to' the
institution that a student or1 admittee will be able to' meet the costs
of his or her attendance during the school year to which the BEOG
is applicable.

14 The current statutory language was added in 1980, but the 
requirement of filing a statement or affidavit to this effect was con­
tained in the original BEOG legislation. See Pub. L. No. 92-318, 
§ 139C, re-printed in 1972 U.S. Code Cong. & Ad. News 335.

In any event, on this record there is no issue. Individual petition­
ers admitted, and the district court found, that without their BEOG 
awards each would be unable to attend Grove City College. See 500 
F. Supip. a t 257.

1(5 It is also' patently wrong to assert, as do petitioners, that there 
is only an “attenuated nexus between [Education] Department- 
administered funds and the College” (Pet. Br. a t 47) because under 
the BEOG program Alternate Disbursement System, the “only role 
which the College plays . . .  is supplying requested information to 
the scholarship or loan-granting organization . . . .” (Pet. Br. at 
3-4.) Institutions whose students receive BEOG awards must not 
only certify their attendance in good standing but must notify fed-



9

The interpretation here advanced was adopted in Bob 
Jones University v. Johnson, 396 F. Supp. 597 (D.S.C. 
1974), aff’d mem,, 529 F.2d 514 (4th Cir. 1975),* 16 17 hold­
ing that school was a recipient of “Federal financial as­
sistance” within the meaning of Title VI under a Vet­
erans Administration program strikingly similar to the 
BEOG program.1'7 While this Court has never decided the

era! officials of a student’s change in enrollment status, as well as 
maintain certain records and make them available to f  ederal officials 
upon requetst for audit purposes. See 43 Fed. Reg. 20922, 20927-28 
(May 15, 1978); 44 Fed. Reg. 5258 (Jan. 25, 1979); 34 C.F.R. 
§§ 690.94, 690.95, 690.96 (1982). In addition, since 1980 these in­
stitutions have had mandatory obligations to provide information 
to all prospective and admitted students about all financial assist­
ance programs available, 20 U.S.C. § 1092, and to enter into a. specific 
“program participation agreement” with the Secretary of Educa­
tion, 20 U.S.C. § 1094(a) ; 34 C.F.R. § 668.11 (1982).

16 Petitioners’ argument that Bob Jones is inapposite; because 
that case involved race; discrimination in the admissions, process and 
because Title. IX lacks, the constitutional scope of Title VI (Pet. Br. 
a t 35-36) is without merit. The Bob Jones decision is based on a 
common-sense interpretation, of the language of Title VI and analy­
sis of how the government aid to students in that case assisted the 
university. The; court cited the constitutional scope of Title; VI 
merely as an additional, but by no means the central, argument for 
its conclusion. The fact that the case involved discrimination in the 
admissions process was not the determinative factor in the court’s 
conclusion that the school received Federal financial assistance.

17 As the; court, there recognized,
The method of payment does not determine the; result; the 
literal language; of Section 601 requires only federal assistance 
—not payment—to a program or activity for Title VI to 
a ttach . . . .
[A]ll that is necessary for Title; VI purposes is. a showing that 
the infusion of federal money through payments to veterans 
assists the educational program of the school.

396 F. Supp. a t 602, 603 n.22. Petitioners criticize the ruling below 
and, implicitly, the Bob Jones court (upon whose decision the 
Third Circuit relied in, part) on the ground that it equated “receiv­
ing” federal financial assistance with “benefiting” from such assist­
ance. (Pet. Br. at 15-17.) However, a, careful reading of both



10

precise issue, its rulings in other areas demonstrate that 
the formal mechanism by which assistance is made avail­
able is not legally controlling. For example, in Norwood 
v. Harrison, 413 U.S. 455 (1973), the Court concluded 
that a state program for the loan of textbooks to school- 
children cannot constitutionally provide textbooks to stu­
dents attending racially discriminatory private schools 
since

[f]ree textbooks, like tuition grants directed to pri­
vate school students, are a form of financial assist­
ance inuring to the benefit of the private schools 
themselves. An inescapable educational cost for stu­
dents in both public and private schools is the ex­
pense of providing all necessary learning materials. 
When, as here, that necessary expense is borne by 
the state, the economic consequence is to give aid to 
the enterprise; if the school engages in discrimina­
tory practices the State by tangible aid in the form 
of textbooks thereby gives support to such discrimi­
nation.

Id, at 463-65 (citation and footnote omitted). Similarly, 
in Committee for Public Education v. Nyquist, 413 U.S. 
756 (1973), a: New York law providing tuition reimburse­
ments to parents of children attending nonpublic schools 
was overturned on the ground that the statute had the 
effect of subsidizing and advancing the religious mission 
of sectarian schools and thus violated the Establishment 
Clause. The Court dismissed the argument made by pro­
ponents of the statute that since the aid was granted to 
parents and not to the schools, the Constitution was not 
violated: “ [T]he effect of the aid is unmistakably to pro­

opinions indicates that; both courts considered whether the schools 
“benefited” from the award of educational grants to their students 
as a means of determining whether the schools were “assisted,” not 
whether they were “recipients.” Here, the BEOG awards made it 
possible for the individual petitioners to attend Grove City College 
(see note 14 supra) and assisted the school in receiving payment of 
tuition and related charges for these students.



vide desired financial support for nonpublic, sectarian in­
stitutions.” Id. at 783.!ls

B. This Construction of the Statutory Language Accords 
with its Consistent Interpretation by the Department 
of Health, Education & Welfare and the Department 
of Education

Since passage of Title VI and Title IX, respectively, 
the federal agencies responsible for their implementation 
have consistently interpreted these provisions to apply to 
institutions of higher education whose students receive 
scholarship or loan assistance to enable them to attend the 
schools. Appendix A to the initial Title VI regulations,10 
which identified programs to which the regulations were 
applicable, included several making assistance available 
through payments to students,2,0 and the current listing

11

is While Nyquist was distinguished in Mueller v. Allen, 51 
U.S.L.W. 5050 (U.S, June 29, 1983) (upholding, under the Estab­
lishment Clause, a  state law provision making tax deductions for 
certain educational expenditures available to parents of both public 
and private: school students), the Court recognized that the tax 
deductions constituted governmental assistance to the schools, since 
they were available only for specified educational expenses such as 
tuition. See id. a t  5053. The Minnesota scheme survived an Estab­
lishment Clause challenge because its “primary eifeet” was not to 
aid parochial schools—not because there was no aid a t all to 
parochial schools. See id. a t 5053-54.

i» “The Justice Department, which had helped draft the language 
of Title VI, participated heavily in preparing the regulations.” 
Guardians Ass’n v. Civil Service Comm’n, 51 U.S.L.W. 5105, 5115 
(U.S. July 1, 1983) (Marshall, J., dissenting) (footnotes omitted).

s» See 29 Fed. Eeg. 16298, 16304 (December 4, 1964) ; 45 C.F.R. 
at 93-94 (1967) ; see also Grove City College v. Bell, 687 F.2d 684, 
691-92 n.14 (3d Cir. 1982). For example-, under Title II of the 
NDEA the federal government made capital contributions to- sepa­
rate student loan funds to- be established and administered by insti­
tutions of higher education—not to- the schools themselves. The 
loan funds were to be used o-nly for specified purposes and their 
assets co-uld not be transferred to the institutions except under 
circumstances explicitly detailed in the statute. See §§ 201, 204-06,



12

of programs covered by Title VI includes both BEOGs 
and NDEA loans,* 21 22 Similarly, the Title IX regulations 
initially issued by the Department of Health, Education 
& Welfare (and all succeeding versions of those regula­
tions promulgated by HEW or the Department of Edu­
cation) explicitly define “Federal financial assistance” to 
include:

Scholarships, loans, grants, wages or other funds 
extended to any entity for payment to or on behalf 
of students admitted to that entity, or extended 
directly to such students for payment to that entity.122

This contemporaneous and consistent interpretation of 
the statutory provisions'23 is entitled to great deference, 
especially on the issue of the administrative agency’s 
scope of authority. See Guardians Association v. Civil 
Service Commission, 51 U.S.L.W. 5105, 5108 text at 
nn.13, 14 (U.S. July 1, 1983) (opinion of White, J.), and 
case cited; id. at 5115-16 (Marshall, J., dissenting), and 
cases cited; id. at 5122 (Stevens, J., joined by Brennan 
and Blackmun, JJ., dissenting), and cases cited.24

NDEA, reprinted in 1958 U.S. Cod© Cong. & Ad. News 1898-1902. 
Nevertheless, the Congress recognized that the loan funds would 
“materially assist institutions of higher education to retain their 
more competent students who need financial assistance in order to 
continue their studies.” H.R. Rep. No, 2157, 85th Cong., 2d Sees. 
(1958), reprinted in 1958 U.S. Code Cong. & Ad. News 4731, 4738.

21 34 C.F.R. a t 312-13 (1982).
22 40 Fed. Reg. 24128, 24137 (,§ 86.2(g) (1) ( ii) ) (June 4, 1975); 

34 C.F.R. § 106.2(g) (1) (ii) (1982).
23 Unlike in North Haven, see 456 U.S. a t 522 n.12, 538 n.29, the 

administrative agencies have not changed their position with re­
spect to the portions of the regulations relevant to this discussion.

24 Petitioners focus on the “or benefits from” language contained 
in the Title IX regulations’ definition of “recipient.” (Pet, Br. at 
16-17.) The critical portion of the regulation, however, is its char­
acterization as a “recipient” of an entity to which assistance is 
extended “through another recipient.” That portion of the regu­
lation is identical to the original Title VI regulation. Compare



13

C. The Legislative History of Title IX and that of Title 
VI Supports the Conclusion that Title IX Applies to 
Grove City College Because Its Students Were 
Awarded BEOGs

The legislative history of Title IX and of the statute 
on which it was modeled, Title VI, provides further sup­
port for the conclusion that the BEOG grants awarded to 
Grove City students are sufficient to bring that institu­
tion within the purview of Title IX.

1. The Legislative History of Title IX
Senator Bayh introduced the original version of Title 

IX as an amendment to S. 659, 92d Cong., 1st Sess. 
(1971), the Education Amendments of 1971. Senator Mc­
Govern urged passage of the Bayh amendment “. .. . to 
assure that no funds from S. 659 . . . be extended to any 
institution that practices biased admission or educational 
policies.” 117 Cong. Rec. 30158-59 (1971).35 Senator Mc- 40

40 Fed. Reg. 24128, 24137 (§ 86.2(h)) (June 4, 1975) with 29 Fed. 
Reg. 16298 (December 4, 1964), as corrected by 29 Fed. Reg. 16988 
(December 11, 1964) (§ 80.13(h)); compare 34 C.F.R. § 106.2(h) 
(1982) with 34 C.F.R. § 100.13(h) (1982). Moreover, when the 
Title IX regulations were promulgated in final form the Boh Jones 
University v. Johnson decision, which articulated a  “benefit from” 
test to determine, whether a  school was a recipient of “assistance” 
under Title VI (see p. 9 & nn.16, 17 supra) had been issued. The 
Department of Health, Education & Welfare relied upon this inter­
pretation by the court when it added the “benefit from” language to 
the definition of “recipient.” See Sex Discrimination Regulations: 
Hearings Before the Suhcomm. on Postsecondary Education of the 
House Comm, on Education and Labor, 94th Cong., 1st Sess. 481 
(1975).

125 Contrary to what petitioners argue (see Pet. Br. a t 22-23), 
many of the remarks of legislators regarding the 1971 amendment, 
including those of Senator McGovern quoted above; are equally 
applicable to the 1972 Bayh amendment, which became Title IX. 
Senator Bayh said, in presenting his 1972 amendment: “Now I am 
coming back with this comprehensive approach which incorporates 
. . . the key provisions of my earlier amendment.” 118 Cong. Rec. 
5808 (.1972). Although the wording of the 1972 amendment differs 
in many respects from the wording of the 1971 proposed amend-



Govern’s remarks directly applied to the BEOG program, 
which was part of S. 659.

Although the antidiscrimination provisions did not come 
to a vote that year, in 1972 Senator Bayh reintroduced 
them in a modified form and secured their passage. Prior 
to their enactment, however, Senator Bentsen offered an 
amendment seeking to exempt traditionally single-sex 
public undergraduate institutions from Title IX coverage. 
In describing the purpose of his amendment, Senator 
Bentsen demonstrated his understanding that Title IX 
applied when grants were made to students to support 
their attendance at college. Referring to a particular 
single-sex institution, he observed:

If Federal funds are cut off, it is the students who 
will suffer. This university now receives over $250,- 
000 in educational opportunity grants; it receives 
$83,000 for college work-study programs.

118 Cong. Rec. 5814 (1972). See also H.R. Rep. No. 92- 
554, 92d Cong., 1st Sess. (1971), reprinted in 1972 U.S. 
Code Cong. & Ad. News 2462, 2584 (“Federal dollars 
now constitute over 20 % of the total budget of our higher

ment, the concept a t issue, “recipient, of Federal financial assist­
ance,” was part of both amendments. The differences between the 
two versions which petitioners point out are not relevant to inter­
preting the term “recipient.” For example, petitioners emphasize 
that the 1971 amendment did not reach private undergraduate 
schools, and based upon this fact, assert that comments during the 
1971 floor debates concerned “public institutions which were un­
questionably receiving substantial direct federal assistance and 
were not intended to apply to private undergraduate institutions 
like Grove City.” (Pet. Br. at 23.) But petitioners cite no floor 
statements, or other authority to support either their characteriza­
tion of Congressional intent or their surmise of Congressional 
knowledge about funding patterns. In fact, when in 1972 Title IX 
was enacted in a form applicable to private as well as public 
institutions, it was accompanied by a Committee report and supple­
mental views which recognized the major support provided to, all 
higher education institutions by the federal government. See text 
infra.



15

education system. Most of these dollars flow to institu­
tions through research contracts, student assistance pro­
grams, and categorical programs . . . .” ) (emphasis 
added) (Supplemental Views).

Thus, during the Committee and floor consideration of 
Title IX, Senators and Congressmen recognized that the 
statute would apply to educational institutions receiving 
federal assistance through BEOG grants to their students. 
Petitioners have been unable to discover any clear indica­
tions to the contrary in the legislative history, and obvi­
ously if Congress had wished to limit the coverage of Ti­
tle IX to educational institutions receiving cash payments 
from the' federal government, it could have done so ex­
plicitly. Moreover, the legislative history reflects the in­
tent of Congress to enact a statute which would pre­
vent . . the use of federal resources to support dis­
criminatory practices,” Camion v. University of Chicago, 
441 U.S. 677, 704 (1979).36

Petitioners cite an exchange between Senator Dominick 
and Senator Bayh during the debates over the 1971 
amendment which, they argue, “strongly suggests” that 
the amendment was not intended to cover assistance re­
ceived directly by students. (See Pet. Br. at 24-25.) Sen­
ator Bayh’s statements during this exchange, which con­
cerned the type of a recipient’s aid that could be cut off 
under Title IX, are, at best ambiguous. Petitioners as­
sume that Senator Bayh meant that his amendment would 
not allow cutting off of student aid, but the more plausi­
ble reading of his comments is that as a matter of law,

a® See 117 Cong. Ree. 39252 (“Millions of women pay taxes into 
the Federal treasury and we collectively resent that these funds 
should be used for the support of institutions to which we1 are 
denied equal access’’) (remarks of Rep. Mink) ; id. a t 39253 
(“Neither the President nor the Congress nor the conscience of 
the nation can permit money which comes from all the people to 
be used in a  way which discriminates against some of the people”) 
(remarks of Rep. Sullivan, quoting President Nixon).



16
the Secretary would have the power to cut off student aid 
but as a matter of good judgment would most probably 
not do so.®7 In order to support their interpretation of 
the exchange, petitioners are forced to hypothesize that 
“Senator Bayh later changed his mind” on this issue. 
(Pet. Br. at 25 n.23.)

2. The Legislative History of Title VI
Since Title IX is closely and deliberately patterned 

after Title VI,*8 the legislative history of Title VI pro­
vides insight into how to interpret Title IX. This legisla­
tive history is consistent with Title IX coverage of edu­
cational institutions whose students receive BEOGs.

As previously noted, Senator Hubert Humphrey, a pri­
mary sponsor of the 1964 Civil Rights Act, argued in 
floor debate on the Act that “ [sjimple justice requires 
that public funds, to which all taxpayers of all races con­
tribute, not be spent in any fashion which encourages, 
subsidizes, or results in racial discrimination,” 110 Cong. * 28

127 Petitioners advance an even lees supportable reading of Senator 
Bayh’s 1975 colloquy with Representative Quie during hearings 
on the Title IX regulations. (Pet. Br. a t 25.) Senator Bayh first 
said he simply did not know the answer to Rep. Quie’s coverage 
question, but “would have to look it up.” He then echoed his 1971 
answer to Senator Dominick by stating that “generally” student 
aid was not terminated as a penalty for uncorreeted discrimination. 
Finally, Senator Bayh told Mr. Quie that he had not heard the 
argument for coverage based on. student assistance to which Quie 
referred. What these statements teach about Congressional intent 
in 1972 is highly questionable.

28 Senator Bayh, the prime; sponsor of Title IX, described the 
relation between, the two statutes as. follows :

Discrimination against the beneficiaries of federally assisted 
programs and activities is already prohibited by Title VI of the 
1964 Civil Rights Act, but unfortunately the prohibition, does 
not apply to discrimination on the basis of sex. In order to 
close this loophole, my amendment sets forth prohibition and 
enforcement provisions which generally parallel the provisions 
of Title VI.

118 Cong. Rec. 5807 (1972).



17

Rec. 6543 (1964) (emphasis added). The then Secretary 
of HEW, Anthony Celebrezze, testified before the House 
Judiciary Committee that Title VI would allow cut-off of 
federal contributions to student loan funds under the Na­
tional Defense Education Act, 20 U.S.C. § 401 et seq. 
Civil Rights Hearings Before Subcommittee No. 5 of 
the House Committee on the Judiciary, 88th Cong., 1st 
Sess. 1541 (1963). Congressmen Poff and Cramer, ex­
pressing their opposition to passage of the Act, drew up 
a list of programs that would he covered by Title VI 
which included programs involving grants or awards to 
students. See H.R. Rep. No. 914, 88th Cong., 1st Sess. 
(1963) (Separate Minority Views of Hon. Richard H, 
Poff and Hon. William Cramer) reprinted in 1964 U.S. 
Code Cong. & Ad. News 2391, 2471-73.-“’ Petitioners cite 
no expressions of disagreement by legislators with these 
descriptions of the scope of Title VI.

Instead, petitioners merely make generalized claims 
that such indications of student assistance coverage in 
the Title VI legislative history are inapplicable to Title 
IX. As we describe in the margin, these claims are with­
out merit.30 Thus, the legislative history of Title IX and

The list included 42 U.S.C. § 242g (1970) (repealed by Pub. 
L. No. 94-484, § 503(b) (1976)) (grants to individuals or institu­
tions for graduate training for physicians, engineers, nurses and 
other professional personnel) and 20 U.S.C. §§ 461-65 (graduate 
fellowships).

so First, petitioners argue that because Title IX is more limited 
in scope than Title VI, “ [s]ome broad pronouncements in the Title 
VI legislative history simply do. not apply to Title IX.” (Pet. Br. at 
28.) Aside from failing to point out what these broad pronounce­
ments are, petitioners ignore the fact that the broad goals under­
lying Title IX—goals similar to tho'se of Title VI—also' sparked 
similarly broad pronouncements. (See the remarks of Senator 
McGovern, and Representatives Mink and Sullivan, supra p, 13 and 
note 26.)

Second, petitioners claim that there is some significance to. the 
fact that the BEOG program was not in existence at the time when



18
Title VI, interpreted in light of the clear remedial pur­
pose of both statutes, supports a broad reading of Title

Title VI was enacted and that federal funds under the student 
assistance programs then extant went first: to educational insti­
tutions . . which had the discretion to choose the ultimate student 
beneficiary.” (Pet. Br. a t 29.) We have previously observed both 
that NDEA loan monies were placed in special funds and not in 
institutional accounts, and also that when NDEA was enacted, 
Congress recognized that the loans would assist institutions as well 
as students (see note 20 supra). While the BEOG program does 
have a different administrative structure from programs in effect 
in 1964, it is nevertheless similar in the sense that institutions 
have a role in selecting grant recipients because they make admit­
tance decisions and are in possession of student financial informa­
tion revealing whether or not an applicant will need financial aid 
in order to meet the institution’s costs. There is no basis for peti­
tioners’ assumption that Congress would have excluded BEOGs 
from Title VI had the program existed in 1964—especially in 
light of the defeat of post-1975 attempts to sot limit Title IX, see 
pp. 20-21 infra.

Third, petitioners make much of differences between the original 
and final versions of Title' VI. (See Pet. Br. a t 29-30.) We addressed 
this point in note 8 supra.

Fourth, petitioners cite a  number of instances when legislators 
stated that Title VI would not cover direct payments to individuals. 
(See Pet. Br. a t 31-33.) In context1, these remarks are best under­
stood to relate to entirely different sorts of programs than BEOGs. 
The instant case differs from a situation in which a college enrolls 
students receiving food stamps, child welfare payments, or other 
non-education benefits. See Brief of Amici Curiae, Mountain States 
Legal Foundation and American Association of Presidents of Inde­
pendent Colleges and Universities, a t 9-10. Participation in a 
student aid program is contingent upon the student’s being in 
attendance a t an educational institution. The other benefit programs 
provide individual assistance regardless of whether the person goes 
to school and thus are not intended to assist educational institutions.

Finally, petitioners argue that student assistance under the 
BEOG program is virtually unrestricted and the nexus between 
student receipt of the funds and assistance to the institution there­
fore is attenuated. (See Pet. Br. a t 33.) We have noted previously 
that the use of BEOG awards by students is far more narrowly 
circumscribed than petitioners admit. See p. 8 supra. The nexus 
between BEOG awards to> students and aid to institutions is strong, 
direct, and clear.



19

IX. Applying Title IX to Grove City College is consist­
ent with the Congressional purposes underlying Title IX.

D. The Post-enactment History of Title IX Demonstrates 
the Congressional Intent to Apply Title IX to Institu­
tions Assisted Through Direct Student Grants

In North Haven, this Court, in interpreting Title IX, 
stressed the importance of post-enactment developments. 
See 456 U.S. at 535. Accord, Bob Jones University v. 
United States, 51 U.S.L.W. 4593, 4600-01 (U.S. May 24, 
1983) ; Guardians Association v. Civil Service Commis­
sion, 51 U.S.L.W. 5108 text at n.14 (opinion of White, 
J.) ; id. at 5116 (Marshall, J., dissenting). An examina­
tion of the post-enactment history of Title IX shows that 
Congress knew that HEW interpreted Title IX to encom­
pass educational institutions whose students received fed­
eral BEOG grants, approved that interpretation, and al­
lowed it to stand although it amended Title IX in other 
respects on several occasions.®1

In 1975, HEW submitted its recently promulgated 
Title IX regulations to Congress for review pursuant to 
§ 431(d) (1) of the General Education Provisions Act, 20 
U.S.C. § 1232(d)(l). (This statute provided Congress 
with an opportunity to disapprove a regulation by con­
current resolution 3:2 if it found that the regulation was 

. . inconsistent with the Act from which it derives its 
authority.” ) Included among the regulations were 
HEW’s definitions of “Federal financial assistance” and 
“recipient.” See p. 12 & n.24 supra. During hearings on 
the regulations, HEW Secretary Weinberger brought the

si See Pub. L. No. 93-568, § 3, 88 Stat. 2138 (1974) ; Pub. L. No. 
94-482, §412, 90 Stat. 2234 (1976).

® But see INS v. Chadha, 51 U.S.L.W. 4907 (U.S, June 23, 1983). 
The constitutional infirmity of the legislative veto' provision, of 
course does not affect the relevance of the 1975 review of the Title 
IX regulations as an. indication, of Congressional intent or post­
enactment ratification of the agency’s interpretation.



matter of coverage of student assistance directly to the 
legislators’ attention:

Our view was that student assistance, assistance 
that the Government furnishes, that goes directly or 
indirectly to an institution is Government aid within 
the meaning of Title IX. If it is not, there is an 
easy remedy. Simply tell us it is not. We believe it 
is and base our assumption on that.
As Mr. Rhinelander [HEW General Counsel] says 
the court case [Bob Jones University v. Johnson] 
confirms this belief.

Sex Discrimination Regulations: Hearings Before the 
Subcomm. on Postsecondary Education of the House 
Comm, on Education and Labor, 94th Cong., 1st Sess. 
484 (1975). None of the concurrent resolutions to disap­
prove the Title IX regulations which were introduced in 
the House passed that body.

In the other chamber, Senator Helms attempted to per­
suade his colleagues that the Department’s interpretation 
was incorrect but he failed to do so. His proposed resolu­
tion disapproving regulations that were not limited in 
application to programs and activities directly receiving 
federal financial assistance never reached the Senate floor 
for a vote. S. Con. Res. 46, 94th Cong., 1st Sess., 121 
Cong. Rec. 17300 (1975).83 Senators Helms also proposed 
a bill that would have limited application of Title IX to 
direct recipients of federal funds (S. 2146, 94th Cong., 
1st Sess,, 121 Cong. Rec. 23847 (1975)). It was never 
passed.

In 1976, Senator McClure renewed the attempt to limit 
Title IX by introducing an amendment defining federal 
financial assistance as assistance that an institution re- 33

20

33 This Court; remarked in North Haven: “ [T]he relatively in­
substantial interest given the resolutions of disapproval t-hat were 
introduced [including the Helms resolution] seems particularly sig­
nificant since Congress has proceeded to> amend § 901 when it has 
disagreed with HEW’s interpretation of the; statute.” 456 U.S. at 
534 (footnote omitted).



21

ceives directly from the federal government. 122 Cong. 
Rec. 28144. The stated purpose of the amendment was to 
eliminate HEW regulation of institutions where . . 
the only Federal involvement is the aid that a student 
may get.” Id. Senator Pell, the major Senate sponsor of 
the provisions of the Education Amendments of 1972 
providing for educational opportunity grants, challenged 
the McClure proposal: “ [T]he enactment of this amend­
ment would mean that no funds under the basic grant 
program would be covered by Title IX. While these dol­
lars are paid to students they flow through and ulti­
mately go to institutions of higher education and I  do not 
believe we should take the position that these Federal 
funds can be used for further discrimination based on 
sex.” Id. at 28145 (1976) (emphasis added).84 The 
McClure amendment was rejected. Id. at 28147.

The post-enactment history of Title IX thus shows that 
Congress realized that HEW interpreted Title IX to en­
compass educational institutions whose students received 
BEOGs. Congress’ rejection of legislative challenges to 
that interpretation, when viewed in light of its willing­
ness to amend Title IX in other respects, strongly sup­
ports the conclusion that Title IX coverage of schools 
assisted by the BEOG grant program is in accord with 
Congressional intent. As this Court remarked in North 
Haven:

Where “an agency’s statutory construction has been 
‘fully brought to the attention of the public and the 
Congress,’ and the latter has not sought to alter that 
interpretation although it has amended the statute 34

34 Senator Bayh supported Senator Pell: “The courts have held 
that Title VI of the Civil Rights Act does apply if a student 
receives Federal aid. If a student is benefited, the school is bene­
fited. It is not new law; it is traditional, and I think in this 
instance it is a pretty fundamental tradition, that we treat all 
institutions alike as far as requiring them to' meet a standard of 
educational opportunity equal for all of their students.” 122 Cong. 
Rec. 28145-46 (1976).



in other respects, then presumably the legislative in­
tent has been correctly discerned.”

456 U.S. at 535 (citations omitted).
II

AS A RECIPIENT OF FEDERAL FINANCIAL AS­
SISTANCE THROUGH THE BEOG PROGRAM, 
GROVE CITY COLLEGE MAY PROPERLY BE RE­
QUIRED TO EXECUTE AN ASSURANCE OF COM­
PLIANCE WITH TITLE IX

Petitioners’ second major argument is that Grove City 
College may not be required to execute the Department 
of Education’s Assurance of Compliance (“Assurance” )36 
because the school would thereby be submitting to institu­
tion-wide Title IX coverage in violation of the statute’s 
“program specificity,” see North Haven, 456 U.S. at 536. 
This argument fails for two reasons: first, the Assurance 
and the applicable regulations meet North Haven's test 
of program specificity; and second, because BEOGs assist 
the institution’s entire program, Title IX applies to that 
entire program.

A. The Title IX Assurance and Applicable Regulations 
Are “Program-Specific” as Required by North Haven

In North Haven, this Court held that not only the fund­
ing termination provisions of § 902, but also that section’s 
grant of regulatory authority to the Department of Edu­
cation and the § 901 prohibition against sex discrimina­
tion, are “program-specific.” 456 U.S. at 536-38. It is 
thus apparent that the Assurance which the Department 
of Education requires that Grove City execute, and the 
portions of the Title IX regulations applicable thereto, 
must be examined to determine if they are consistent 
with Title IX’s program specificity.

22

85 The Assurance of Compliance is a  written acknowledgement by 
a recipient of Federal financial assistance that it will operate its 
education programs or activities in a  manner consistent with 
applicable Title IX regulations. 34 C.F.R. § 106.4 (1982).



23
North Haven provides guidance in this examination. 

There, the Court reviewed Subpart E (Employment) of 
the Title IX regulations and found it to be adequately 
program-specific. The Court held that although the “em­
ployment regulations do speak in general terms of an ed­
ucational institution’s employment practices, . . . they 
are limited by the provision that states their general pur­
pose”—§ 106.1 of the Title IX regulations, which refers 
to the “program or activity” language in the statute. Id. 
at 538. See 34 C.F.R. § 106.1 (1982). In addition, the 
Court noted, the Department’s comments accompanying 
publication of its final Title IX regulations, by citing 
Board of Public Instruction v. Finch, 414 F.2d 1068 (5th 
Cir. 1969), indicated the agency’s intent that the regula­
tions be interpreted in a program-specific manner. North 
Haven, 456 U.S. at 538-39.

Applying the North Haven analysis to the present case, 
it is clear that the regulations and the Assurance itself, 
HEW Form 639, conform to the program-specific lan­
guage of the Title IX statute. Under the Assurance, an 
institution receiving federal assistance pledges to “ [c] om- 
ply, to the extent applicable to it, with Title IX . . . and 
all requirements imposed by . . . the Department’s regula­
tions . . .  to the end that, in accordance with Title IX . . . 
no person . . . shall, on the basis of sex, be excluded from 
participation in, be denied the benefits of, or be otherwise 
subjected to discrimination under any education programs 
or activity for which the applicant receives or benefits 
from federal financial assistance.” HEW Form 639 
(emphasis added). The Assurance, by limiting compli­
ance to “the extent” Title IX applies to the institution 
and to “programs or activity,” explicitly announces its 
conformity with the statute’s program-specificity.

In addition, the regulations limit the institution’s obli­
gation to comply with Title IX to “each education pro­
gram or activity operated by the applicant or recipient 
and to which this part [the Title IX regulations] applies.” 
34 C.F.R. § 106.4(a) (1982) (emphasis added). Finally,



24

these portions of the regulations are also subject to the 
general purpose section, § 106.1, which this Court found 
adequately program-specific in North Haven, 456 U.S. at 
538.

Just as this Court in North Haven rejected claims that 
the employment regulations of Title IX were inconsistent 
with the statute’s program-specificity, so too, must the 
Court reject petitioners’ claims that the Assurance and 
regulations are not program-specific.36 As the Court ex­
plained, “regulations may be broadly worded and need 
not be directed at specific programs—-as long as they are 
applied only to programs that receive federal funds.” 
456 U.S. at 536 n.27.37

B. Because BEOG Grants Provide Assistance to the En­
tire Program of Grove City College, that Entire Pro­
gram of the Institution is Covered by Title IX

We have suggested above that the Court is not required 
in this case to attempt a general definition of “program 
or activity,” as the term is used in § 901(a), because,

96 All that is a t issue in this case is the Assurance. The Depart­
ment has not made any findings concerning the program(s) or 
activity (ies) a t Grove City College which are covered by Title IX 
or its regulations. Neither the district court nor the ALJ deemed 
it necessary to address the meaning of “program or activity” in 
relation to Grove City. Thus, we agree with Judge Becker, con­
curring below, that it was unnecessary for the panel majority to 
explore the subject.

87 Petitioners’ argument that the Department may not terminate 
federal funding to a  recipient which refuses to execute an Assurance 
is baseless. The Assurance requirement is well within the agency’s 
authority under § 902 to adopt regulations “of general applica­
bility.” As the Third Circuit panel noted, the Assurance not only 
identifies the type of institution applying for federal aid, but also 
asks the school to provide information respecting grievance com­
plaint procedures, requires a statement of self-evaluation, concern­
ing the practices of the institution, and places th e . recipient on 
notice that it must comply with Title IX and its regulations. 687 
F.2d at 703. As such, the Court of Appeals found that the Assur­
ance constituted a threshhold device facilitating the1 enforcement 
of Title IX’s objectives. Id.



25

just as in North Haven, the Assurance and regulations 
are adequately limited by the program-specificity con­
cept.38 Even if the Court does not rest upon this ground, 
however, it should affirm the judgment below since under 
the specific facts of this case, the Third Circuit was cor­
rect in holding that all of Grove City College is subject 
to Title IX’s prohibition against sex discrimination.39

38 In North Haven, two local boards of education sought declar­
atory and injunctive relief in situations where the Department of 
Education had begun complaint investigations. Although the in­
vestigation stage is much further along the continuum of the 
enforcement scheme than the point a t which an. institution is asked 
to complete an Assurance', this Court did not find it necessary to 
define “program or activity.”

39 We recognize that in North Haven this Court apparently re­
jected a reading of § 901 (a) which would extend its reach to- an 
entire institution in every instance. 456 U.S. a t 537. There is 
no need to> revisit that determination in the present case. But 
there is likewise no basis upon which to conclude', as petitioners 
argue, that by implication the Court' in North Haven was holding 
that § 901(a) could never reach an entire institution.

Petitioners offer no coherent interpretation of §901 (a). On the 
one hand, they suggest that the statutory language must refer to 
something less than the entire program of an institution (see Pet. 
Br. a t 14-15). On the other hand, petitioners concede (id. a t 20 
n.18) the validity of the “infection” theory of Board of Public 
Instruction v. Finch, which holds that federal funds may be 
terminated under Title VI if discrimination in other areas of a 
recipient’s operations “infects” a federally supported categorical 
program. Necessarily, then, the scope of § 901(a) must be at least 
broad enough to reach any part of a recipient’s operations which, 
if conducted in a discriminatory manner, might “infect” a “pro­
gram or activity receiving Federal financial assistance,” as peti­
tioners narrowly define that term. Cf. Iron Arrow Honor Society 
v. Heckler, 702 F.2d 549 (5th Cir. 1983).

Thus, to use an example proffered by petitioners (see Pet. Br. 
at 20), if a university received federal funds to support a program 
of research and instruction in chemistry (to advance an overall 
Congressional goal of increasing the nation’s supply of qualified 
scientists), it would clearly be a violation of Title IX if the school 
permitted women to enroll in that program but required that they



26

In Part I of this brief, we described the purposes of 
the Higher Education Act in general and the BEOG pro­
gram specifically. See p. 7 supra. BEOGs provide stu­
dents with the means to obtain undergraduate degrees, 
and assist institutions of higher education to provide the 
necessary instruction and related services and activities 
to that end.40 The system of channeling aid through the 
student, and of allowing the student to select the institu­
tion which he or she will attend, provides a means of 
preserving the institutional autonomy sought by Grove 
City College (see Pet. Br. at 47-50). At the same time, 
it necessarily means that BEOG funds, which must be 
used for tuition, fees and other expenses associated with 
attendance at the school that the student has chosen, sup­
port whatever functions or activities the institution de­
termines to offer as part of undergraduate education.

take a greater number of credits in other courses to earn an M.S. 
or Ph.D. degree than it required of male students in the program. 
Similarly, disparate treatment based on sex in such other areas 
of a program enrollee’s necessary contact with the institution as 
residential accommodations, honors, or extracurricular activities 
would obviously be proscribed by Title IX.

Petitioners also suggest, citing Finch, that “the. concept of a 
recipient program or activity under Title IX must; be co-extensive 
with the scope of the underlying grant statute” (Pet. Br. a t 20). 
We have explained in this footnote why this formula cannot mark 
the outer limits of § 901 (a) under the Finch “infection” theory. 
But even, accepting the formula arguendo for purposes of this case, 
it leads to the conclusion (for the reasons stated in the text, 
infra) that all of Grove City’s operations are subject to Title IX.

40 The purpose of the BEOG program is not, as petitioners sug­
gest, to enable Grove City College or any other school to operate 
a student assistance program. There are federal grant-in-aid 
statutes which do provide such assistance. For example!, under 
20 U.S.C. § 427 (NDEA), the federal government will loan money 
directly to> an institution to enable it te  meet its required 10% 
match and to establish a student loan fund eligible for federal 
capital contributions. And under 20 U.S.C. § 1070e, an institution 
may receive federal payments to defray its expenses in administer­
ing BEOGs.



27
There is no dispute in this case that without their 

BEOGs, the individual petitioners would be unable to 
attend Grove City. Hence there is no question that BEOG 
funds are effectively used to pay tuition and fees charges, 
and become part of the general operating funds of the 
college. Absent a showing that it conducts administra­
tively and programmatically separate, specialized activi­
ties which are not related to undergraduate education, the 
costs of which are defrayed from separate funds, and 
which do not in any way benefit from the BEOG assist­
ance to the school, all of Grove City’s operations are sub­
ject to Title IX. The entire program of Grove City College 
is the “education program or activity receiving Federal 
financial assistance” through BEOGs.

This interpretation of § 901(a), where an institution 
benefits from its students’ BEOG awards, is supported by 
the statutory framework, the legislative history of Title 
IX, the similar treatment of general-purpose aid under 
Title VI, and events following upon the issuance of the 
initial Title IX regulations in 1975. First, § 901(a) also 
contains a series of specific exclusions from Title IX 
coverage, many of which cover events or functions which 
are very unlikely ever to receive earmarked federal sup­
port. Unless Congress contemplated that at least in some 
circumstances (such as where an institution receives 
assistance for its overall educational program through 
student aid grants) the scope of § 901(a) would be insti­
tutionwide, there would be no reason to enact these provi­
sions.41 Second, the principal sponsor of Title IX, Senator 
Bayh, explicitly described the broad scope of Title IX, 
emphasizing that it would reach any part of an institu­
tion’s operations which could affect federal program par­
ticipants.42 Third, when Title IX was enacted, at least

41 See Haffer v. Temple University, 524 F. Supp. 531, 541 (E.D. 
Pa.), aff’d, 688 F.2d 14 (3d Cir. 1982).

42 When asked whether the language “any program or activity” 
would reach “dormitory facilities . . . athletic facilities . . . or . . . 
just educational requirements,” Bayh responded that “ [w]hat we



28

one federal court had already construed similar “program 
or activity” language broadly with respect to an entity 
receiving general support funds.48 Finally, when Con­
gress reviewed the Title IX regulations issued by the 
Department of HEW in 1975, there was major contro­
versy and debate over the prohibition of discrimination in 
extra-curricular athletic programs ; however, the regula­
tions were not disapproved and in fact the Senate defeated 
a series of amendments which would have narrowed the 
scope of § 901 (a)’sprohibition on discrimination.* 43 44

are trying to do is provide equal access for women and men students 
to the educational process and the extra-curricular activities in a 
school . . . .” 117 Cong. Rec. 30407 (1971).

43 In Bossier Parish School Bd. v. Lemon, 370 F.2d 847 (5th 
Cir.), cert, denied, 388 U.S. 911 (1967), a school district received 
funds for construction and operations because of the location 
within the district of an a ir force base. The court held that 
acceptance of these “impact aid” funds after enactment of Title 
VI “brought its school system within the class of programs subject 
to the section 601 prohibition against discrimination.” Id. a t 852. 
Senator Bayh indicated in 1975 that the: “program or activity” 
language of Title IX had been intended to parallel the Bossier 
Parish interpretation of Title VI. 121 Cong. Rec. 20468 (1975). 
See also Boh Jones University v. Johnson, discussed supra p. 9.

44 See 120 Cong. Rec. 15322 (1974) (Tower amendment to exclude 
“revenue producing” intercollegiate athletics); 121 Cong. Rec. 
23845 (1975) (Helms amendment to exclude programs and activities 
not receiving direct federal a id ) ; 122 Cong. Rec. 28136 (1976) 
(McClure amendment to redefine “program or activity” to include 
only curriculum or graduation requirements). Senator Bayh suc­
cessfully opposed the amendments on the ground that they would 
have exempted “areas of traditional discrimination against women 
that are the reason for the . . . enactment of Title IX [including] 
. . . scholarship . . . employment . . . and extra-curriculum [sic] 
activities such as athletics.” Id. at 28144.

Senator Bayh testified a t the House of Representatives hearings 
on the Title IX regulations in a similar fashion:

This objection to the coverage of programs which receive in­
direct benefits from federal support—such as athletics—is 
directly a t odds with the Congressional intent: to provide cov­
erage of exactly such types of clear discrimination. For ex-



29

Petitioners’ argument that an educational institution 
can never be a “program or activity” for purposes of Title 
IX leads to an absurd result: institutions that receive 
general support funds such as BEOGs would never be 
covered by Title IX and would be able to use these funds 
to support discriminatory programs. There is no evidence 
that Congress intended to establish such a loophole in 
Title IX enforcement. Given Congress’ intent in enacting 
Title IX, “program or activity” should be liberally in­
terpreted in a common-sense fashion that best effectuates 
the purposes of Title IX: to protect citizens from dis­
crimination and to eliminate federal financial support for 
such discrimination.

The federal government, by providing students at an un­
dergraduate institution with federal educational grants, 
is also providing the institution as a whole with addi­
tional resources which the institution may allocate as it 
sees fit. In order to effectuate the remedial purposes of 
Title IX, the Third Circuit’s decision that the entire 
program of Grove City College is the “program or activity 
receiving Federal financial assistance” should be upheld.

ample, although federal money does not go- directly to the foot­
ball programs, federal aid to any of the school system’s pro­
grams frees other money for use in athletics.
Without federal aid a school would have to reduce program 
offerings or use its resources more efficiently. Title IX refers 
to federal financial assistance. If federal aid benefits a dis­
criminatory program by freeing funds for that program, the 
aid assists it.

Sea: Discrimination Regulations: Hearings Before the Subcomm. on 
Postsecondary Education of the House Comm, on Education and 
Labor, 94th Cong., 1st Sess. 171 (1975).



30

CONCLUSION

For the reasons stated, the judgment of the court below
should be affirmed.

Respectfully submitted,

Roger L. Waldman * 
Alan Gabbay 
P atricia J. Langer 
Seth M. Lieberman

Maximilian W. Kempner 
Richard C. Dinkelspiel 

Co-Chairmen 
Norman Redlich 

Trustee
William L. Robinson

1 Rockefeller Plaza Norman J. Chachkin
New York, N.Y. 10020 Debra A. Miller
(212) 957-9800 Lawyers’ Committee for

* Counsel of Record Civil Rights Under Law 
733 15th Street, N.W.
Suite: 520
Washington, D.C. 20005
(202) 628-6700 

Attorneys for Amicus Curiae