Romeo Community Schools v. US Dept. of Health

• Decision Date: 07 April 1977
• Docket Number: Civ. A. No. 6-71438.
• Citation: 438 F. Supp. 1021
• Parties: ROMEO COMMUNITY SCHOOLS, a Public Body Corporation, Plaintiff, v. UNITED STATES DEPARTMENT OF HEALTH, EDUCATION, AND WELFARE et al., Defendants, Susan K. Garrard, Intervenor.
• Court: U.S. District Court — Western District of Michigan

438 F. Supp. 1021

ROMEO COMMUNITY SCHOOLS, a Public Body Corporation, Plaintiff, v. UNITED STATES DEPARTMENT OF HEALTH, EDUCATION, AND WELFARE et al., Defendants, Susan K. Garrard, Intervenor.

Civ. A. No. 6-71438.

United States District Court, E. D. Michigan, S. D.

April 7, 1977.

COPYRIGHT MATERIAL OMITTED

Clark, Hardy, Lewis, Fine & Asher, P. C. by Charles L. Fine, E. Peter Drolet, Birmingham, Mich., Steptoe & Johnson by Janet Lammersen Kuhn, Washington, D. C., for plaintiff.

U. S. Dept. of HEW, Office of Civil Rights by Julia C. Lamber, Washington, D. C., U. S. Dept. of Justice by William Z. Elliott, Washington, D. C., Pamela J. Thompson, Asst. U. S. Atty., Detroit, Mich., for defendants.

Beer, Boltz & Bennia by Warren J. Bennia, Bloomfield Hills, Mich., for intervenor.

MEMORANDUM OPINION

FEIKENS, District Judge.

This is an action for declaratory judgment and permanent injunction, brought under 28 U.S.C. § 2201 and the Administrative Procedures Act, 5 U.S.C. § 701, et seq., by plaintiff Romeo Community Schools (Romeo) against defendant Department of Health, Education, and Welfare (HEW).¹ Plaintiff challenges the authority of defendant to promulgate certain administrative regulations under Title IX of the Education Amendments of 1972, 20 U.S.C. § 1681, et seq., governing sex discrimination in federally funded education programs. Specifically, plaintiff challenges the legality of the regulations contained in 45 C.F.R. Part 86, Subpart E, § 86.51, et seq., which purport to regulate sex discrimination in the employment relationship between federally funded public schools and their teacher employees. The case is before the court on cross-motions for summary judgment.²

I.

Plaintiff Romeo Community Schools is a Third Class School District duly organized under the laws of the State of Michigan. Romeo operates a public school system in Macomb and Oakland Counties, Michigan, with a total student enrollment currently of 5,092. Romeo currently employs 244 teachers and operates under a budget in fiscal 1976 of $7,210,000.

Plaintiff receives federal funds through the defendant HEW for a number of its educational programs. For the last three years, Romeo has received funds earmarked for preschool and elementary remedial reading programs under Title I. 20 U.S.C. § 241 a-m. Under Title II, Romeo received federal funds for the purchase of library books and other learning materials. 20 U.S.C. § 821, et seq. Romeo participates in a federally funded Vocational Education Program with three other Macomb County School Districts and operates two such programs of its own, all at the secondary level. 20 U.S.C. §§ 1241-1391. Plaintiff has also received funds for the last three years under the National School Lunch Act, 42 U.S.C. § 1751, et seq., which provides free milk to disadvantaged students. This federal financial aid to Romeo totaled $45,240 for the 1973-74 school year, $92,351 for the school year 1974-75, and $114,949 for the last school year, 1975-76. Though significant, these figures actually represent only a small fraction of Romeo's total budget — approximately 2% in 1976.

As a recipient of this federal aid, Romeo is subject to Title IX of the Education Amendments of 1972. 20 U.S.C. § 1681, et seq. Section 1681 of the Act prohibits sex discrimination in federally funded education programs:

(a) No person in the United States shall, on the basis of sex, be excluded from participation in, be denied the benefits of, or be subjected to discrimination under any education program or activity receiving Federal financial assistance . . ..

Under § 1682, the Department of HEW is empowered to investigate reported violations of Title IX and to initiate administrative proceedings to enforce compliance if voluntary compliance cannot be secured.³ Refusals to comply can be sanctioned under § 1682 with a termination of federal aid of those programs affected by a school's discriminatory policies. Section 1682 provides the Secretary's only means of enforcing § 1681.

Under § 1682, the Secretary of HEW is also authorized to promulgate "rules, regulations, or orders of general applicability," to effectuate the provisions of § 1681, and pursuant to this authority, the Secretary has promulgated a comprehensive set of regulations, 45 C.F.R. § 86.1, et seq., which governs the conduct of federally assisted schools in a number of specific areas. Subpart E of these regulations, 45 C.F.R. §§ 86.51-86.61, purports to regulate the conduct of Title IX schools toward their teacher employees. Subpart E covers a wide range of employment practices, including recruitment, advertising, and pre-employment inquiries, §§ 86.53, 86.59, 86.60; employment criteria, § 86.52; employee compensation and fringe benefits, §§ 86.54, 86.56; and job classification and structure, § 86.55. These regulations, according to § 86.51, apply to employment practices in all programs operated by federally assisted public schools. The focus of this litigation is 45 C.F.R. § 86.57, which requires all federally assisted schools to treat pregnancy equally with sickness and disability for purposes of leave and compensation benefits:

§ 86.57 Marital or parental status

(a) General. A recipient shall not apply any policy or take any employment action:

(1) Concerning the potential marital, parental, or family status of an employee or applicant for employment which treats persons differently on the basis of sex; or

(2) Which is based upon whether an employee or applicant for employment is the head of household or principal wage earner in such employee's or applicant's family unit.

(b) Pregnancy. A recipient shall not discriminate against or exclude from employment any employee or applicant for employment on the basis of pregnancy, childbirth, false pregnancy, termination of pregnancy, or recovery therefrom.

(c) Pregnancy as a temporary disability. A recipient shall treat pregnancy, childbirth, false pregnancy, termination of pregnancy, and recovery therefrom and any temporary disability resulting therefrom as any other temporary disability for all job related purposes including commencement, duration and extensions of leave, payment of disability income, accrual of seniority and any other benefit or service, and reinstatement, and under any fringe benefit offered to employees by virtue of employment.

(d) Pregnancy leave. In the case of a recipient which does not maintain a leave policy for its employees, or in the case of an employee with insufficient leave or accrued employment time to qualify for leave under such a policy, a recipient shall treat pregnancy, childbirth, false pregnancy, termination of pregnancy and recovery therefrom as a justification for a leave of absence without pay for a reasonable period of time, at the conclusion of which the employee shall be reinstated to the status which she held when the leave began or to a comparable position, without decrease in rate of compensation or loss of promotional opportunities, or any other right or privilege of employment.

Romeo is in apparent non-compliance with this regulation. The collective bargaining agreement between Romeo and the Romeo Education Association, the bargaining representative for Romeo's faculty employees, specifically provides that pregnancy and maternity leave shall not be treated equally with sickness and disability leave. Article XX of the union contract provides that pregnancy leave may not be charged against accrued sick leave and is not compensable, either in salary or retirement credits. Furthermore, teachers are required to begin their pregnancy leave by the eighth month of pregnancy, unless they have the permission of their physician allowing them to complete the last two weeks of a marking period, and teachers may not return to work prior to the commencement of the post-natal period or post-natal examination without express medical permission.⁴

On February 4, 1976, a complaint was filed with HEW by Susan K. Garrard, a high school counselor in the Romeo system, alleging sex discrimination in Romeo's pregnancy leave employment policy.⁵ An investigation ensued, and on June 9, 1976, HEW's Regional Director for Civil Rights issued a letter to plaintiff citing Romeo for non-compliance with 20 C.F.R. § 86.57, and hence non-compliance with Title IX. In response, by letter dated June 24, 1976, plaintiff noted a "serious question" as to HEW's authority under Title IX to regulate the employment practices of federally assisted schools. "It would appear," wrote plaintiff, "that HEW's legislatively conferred authority under this Title would extend only to the persons who are the objects or beneficiaries of federally funded programs, i. e., the students." Plaintiff was given until June 26, 1976 to provide assurances that its practices would be brought into compliance with the regulation. This deadline was later extended to July 9, 1976; on July 9, this suit was commenced.⁶

II.

The court is faced at the outset with a motion to dismiss by the defendant, who challenges plaintiff's complaint on grounds of ripeness, failure to exhaust administrative remedies, and lack of subject matter jurisdiction. Defendant's ripeness argument is bottomed on the fact that administrative enforcement proceedings have not yet been completed in this case. The Administrative Procedures Act only provides for review of "final agency action," 5 U.S.C. § 704, and HEW argues that no such final action has yet been taken here, since none of Romeo's federal funds have yet been terminated. Board of Education of the City of Cincinnati v. Dept. of HEW, 396 F.Supp. 203, 248-49 (S.D.Ohio 1975). Indeed, there is as yet no final determination of non-compliance with Title IX by the Secretary. As a prerequisite to any judicial review of this matter, defendant contends that such a determination should be made. Toilet Goods Assoc. v. Gardner, 387 U.S. 158, 87 S.Ct. 1520, 18 L.Ed.2d 697 (1967); Weinberger v. Salfi, 422 U.S. 749, 95 S.Ct. 2457, 45...