524 F.Supp. 531 (E.D.Pa. 1981), Civ. A. 80-1362, Haffer v. Temple University of Commonwealth System of Higher Ed.

Docket Nº:Civ. A. 80-1362
Citation:524 F.Supp. 531
Party Name:Haffer v. Temple University of Commonwealth System of Higher Ed.
Case Date:October 09, 1981
Court:United States District Courts, 3th Circuit, Eastern District of Pennsylvania

Page 531

524 F.Supp. 531 (E.D.Pa. 1981)

Rollin HAFFER, et al.



Civ. A. No. 80-1362.

United States District Court, E.D. Pennsylvania.

Oct. 9, 1981

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National Womens' Law Center, Margaret A. Kohn, Nancy Duff Campbell, Marcia D. Greenberger, Washington, D.C., for plaintiffs.

Peter Mattoon, Michael Lehr, Arlene Fisk, all of Ballard, Spahr, Andrews & Ingersoll, Philadelphia, Pa., for defendants.


JOSEPH S. LORD, III, Chief Judge.

I. Introduction

Plaintiffs are women students enrolled at defendant Temple University (Temple). They claim that Temple discriminates against women in the operation of its intercollegiate athletic program 1 in violation of Title IX of the Education Amendments of 1972, 20 U.S.C. s 1681 et seq. (Title IX), and the regulations implementing Title IX issued by the Department of Health, Education and Welfare (HEW), 34 C.F.R. s 106 (1980). 2 Plaintiffs seek to represent the class of all current women students at Temple University who participate, or who are, or have been deterred from participating because of sex discrimination in Temple's intercollegiate athletic program. 3

Title IX states: "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 ...." 20 U.S.C. s 1681. The regulation covering the scope of application of Title IX provides that, unless otherwise stated, the regulations apply "to every recipient and to each education program or activity operated by such recipient which receives or benefits from Federal financial assistance." 34 C.F.R. s 106.11 (1980). 4

Temple seeks summary judgment. It argues that its intercollegiate athletic program is exempt from the requirements of Title IX because it receives no federal funds earmarked for the use of that program. Temple argues that the implementing regulations are invalid insofar as they cover programs or activities that "benefit from" federal financial assistance but do not receive earmarked funding. Temple asserts that such coverage is beyond the scope of Congress's intent in enacting Title IX.

The parties agree that the intercollegiate athletic program receives no such earmarked federal funds. But, according to plaintiffs' affidavits, Temple receives over nineteen million dollars in federal grants and contracts. 5 In addition, it receives aid in the form of long term loans and interest subsidies for construction and renovation of university buildings. This aid constitutes approximately one-tenth of Temple's annual operating budget.

The issue, then, is the meaning of the statutory phrase "programs or activities receiving

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Federal financial assistance." 20 U.S.C. s 1681. The validity of the regulation turns on Congress's intent in using the word "receiving." For the reasons that follow, I hold that Temple's intercollegiate athletic program is an education program "receiving Federal financial assistance" and, thus, is subject to the requirements of Title IX and of the regulations, which are validly applied here. I therefore will deny defendant's motion for summary judgment.

II. Legislative History


Congress used the same language at issue here in Title VI of the Civil Rights Act of 1964, 42 U.S.C. s 2000d et seq., banning race discrimination in federally funded programs, and in section 504 of the Rehabilitation Act of 1973, 29 U.S.C. s 794, banning discrimination against handicapped persons in federally funded programs. Indeed, Title IX was patterned after Title VI. Cannon v. University of Chicago, 441 U.S. 677, 696, 99 S.Ct. 1946, 1957, 60 L.Ed.2d 560 (1979) ("The drafters of Title IX explicitly assumed that it would be interpreted and applied as Title VI had been during the preceding eight years."). Section 504 was also "consciously intended by Congress to track (Title VI)." NAACP v. Medical Center, Inc., 599 F.2d 1247, 1258 (3d Cir. 1979). Therefore, the legislative history of and case law interpreting these statutes are relevant to the question here.

Both Title IX and Title VI have two main provisions. Each has a general statement of prohibition against discrimination-on the basis of sex, 20 U.S.C. s 1681 (Title IX); and on the basis of race, color, and national origin, 42 U.S.C. s 2000d (Title VI). Each also includes a provision authorizing federal agencies to issue regulations to effectuate the general prohibition section. In addition, the second section of each title provides for administrative enforcement through termination or refusal of federal aid to programs and activities after an express finding that discrimination exists in the program or activity. 20 U.S.C. s 1682 (Title IX); 42 U.S.C. s 2000d-1 (Title VI). In addition to federal agency enforcement under these provisions, the intended beneficiaries are also granted a private right of action to enforce Title IX, Cannon, supra, and Title VI, NAACP, supra. A private right of action exists to enforce section 504 as well. Id.

The purpose of Title VI is "to insure once and for all that the financial resources of the Federal Government-the common wealth of Negro and white alike-will no longer subsidize racial discrimination." 110 Cong.Rec. 7054-55 (1964) (remarks of Sen. Pastore). Title IX was intended to provide appropriate safeguards "parallel to those found in Title VI of the 1964 Civil Rights Act," 118 Cong.Rec. 5803 (1972) (remarks of Sen. Bayh); to put into law "the essential guarantees of equal opportunity in education for men and women," id. at 5808.

Temple relies on the legislative history of the administrative enforcement provisions to support its narrow reading of the general prohibitions against discrimination. Concededly, Congress was concerned that wide use of the funding termination mechanism to enforce these statutes would hurt more than help the intended beneficiaries. The administrative enforcement mechanism was therefore limited explicitly to programs or activities in which discrimination actually was found to exist. 20 U.S.C. s 1682; 42 U.S.C. s 2000d-1; 110 Cong.Rec. 7059 (1964) (remarks of Sen. Pastore); id. at 7066 (remarks of Sen. Ribicoff). Congress did not want funds cut off from an entire state because of discrimination in one county agency of that state. 110 Cong.Rec. 11942 (1964) (remarks of Attorney General Kennedy). Even with this concern, however, Congress did contemplate wholesale termination of funding in cases in which the whole range of a recipient's programs was infected by discrimination. Id. at 7059 (remarks of Sen. Pastore).

Congress recognized that the administrative enforcement provision of termination has a more narrow scope than the general statement of prohibition against discrimination. See id. at 7058 (remarks of

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Sen. Pastore). 6 And both the United States Supreme Court and the Third Circuit recognize that federal funding termination is not always the best way to enforce Title VI or Title IX. See Cannon, supra; NAACP, supra. Private actions to enforce the broad remedial rights granted in the general statements of prohibition are not restricted in all respects by the limits on the federal government under the administrative enforcement sections. Cannon, supra; NAACP, supra. Temple's reliance on the legislative history to the administrative enforcement provisions thus is misplaced.


It is obvious from a full reading of the legislative history of the statute that Congress approved of the broad scope of Title IX, and specifically its application to intercollegiate athletic programs.

The original version of Title IX made clear that an institution's receipt of any federal funding brought the entire institution within the scope of the statute. Title IX was first introduced as an amendment to the Education Amendments of 1971. S. 659, 117 Cong.Rec. 30155 (1971). It stated:

No person in the United States shall, on the ground of sex ... be subject to discrimination under any program or activity conducted by a public institution of higher education, or any school or department of graduate education, which is a recipient of Federal financial assistance for any education program or activity ....

Amend. 398, 117 Cong.Rec. 30156 (1971) (emphasis added). The Senate rejected the amendment as nongermane to the bill under consideration. Id. at 30415. In 1972, Senator Birch Bayh (D-Ind.) reintroduced Title IX in its current form. There was no explanation or discussion of the wording change. Senator Bayh stated that the new bill was a "comprehensive approach which incorporates ... the key provisions of my earlier amendment ...." 118 Cong.Rec. 5808 (1972) (remarks of Sen. Bayh). 7 The history of the bill through enactment thus is ambiguous.

After enactment, however, there have been at least six attempts to amend Title IX to exclude, in whole or in part, coverage of intercollegiate athletic programs or to limit coverage of Title IX to programs and activities directly funded by the federal government. All of these attempts were defeated. See Amend. 1343 to S. 1539, 120 Cong.Rec. 15322 (1974) (Tower Amendment to exclude "revenue producing" intercollegiate athletic activities from Title IX; died in Conference 8); S. 2106, 121 Cong.Rec. 22775

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(1975) (Tower Amendment reintroduced; not passed by Congress); S.Conc.R. 46, 121 Cong.Rec. 17300 (1975) (Helms Resolution to disapprove proposed regulations applying Title IX to programs and activities not directly receiving federal funds; not reported out of Committee); S. 2146, 121 Cong.Rec. 23845 (1975) (Helms Amendment to limit Title IX coverage to education programs and activities directly receiving federal financial assistance; not passed by Congress); Amend. 389, 122 Cong.Rec. 28136 (1976) (McClure Amendment to redefine "education program or...

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