Iron Arrow Honor Soc. v. Schweiker, 80-5663
| Decision Date | 03 August 1981 |
| Docket Number | No. 80-5663,80-5663 |
| Citation | 652 F.2d 445 |
| Parties | IRON ARROW HONOR SOCIETY, a "tap" or recognition association for men, et al., Plaintiffs-Appellants, v. Richard S. SCHWEIKER, Secretary of the Department of Health and Human Services, et al., Defendants-Appellees. . Unit B |
| Court | U.S. Court of Appeals — Fifth Circuit |
DuFresne & DuFresne, Elizabeth J. DuFresne, Steel, Hector & Davis, Joseph P. Klock, Jr., Miami, Fla., for plaintiffs-appellants.
Drew S. Days, III, Asst. Atty. Gen., U.S. Dept. of Justice, Civ. Rights Div., AndrEe M. Davis, Atty., Appellate Section, Walter W. Barnett, Julia Lamer, Dept. of Health and Human Services, Jessica Dunsay Silver, Civ. Rights Div., Dept. of Justice, Washington, D.C., for defendants-appellees.
Appeal from the United States District Court for the Southern District of Florida.
Before TUTTLE, RONEY and ANDERSON, Circuit Judges.
This is an appeal from the judgment of the trial court, 499 F.Supp. 496, dismissing a complaint seeking an injunction to forbid the former Department of Health, Education and Welfare from terminating its substantial contribution of federal funds to the University of Miami. The termination threat arose from the fact that Iron Arrow is an honorary-recognition society of the University which elects only men to membership and which the Secretary of HEW had determined gave "substantial assistance" to Iron Arrow.
There are two substantial questions raised by the Society which must be resolved on this appeal: 1) Were the HEW regulations upon which the Secretary acted in excess of the authorization contained in the statute; and 2) Did the University actually contribute "substantial assistance" to the Society?
The regulation in effect at the time of the threatened cutoff of federal funds from the University was Section 86.31(b)(7) which provides that:
Except as provided in this subpart, and providing any aid, benefit, or service to a student, a recipient shall not, on the basis of sex: ...
(7) Aid or perpetuate discrimination against any person by providing significant assistance to any agency, organization, or person which discriminates on the basis of sex in providing any aid, benefit or service to students or employees.
Statutory jurisdiction for the issuance of the regulation is 20 U.S.C. § 1682. It authorizes certain federal agencies, including HEW to issue regulations to "effectuate" the provisions of § 1681. 1 The enforcement provisions of § 1682 provide:
Compliance with any requirement adopted pursuant to this section may be effected 1) by the termination of or refusal to grant or to continue assistance under such program or activity to any recipient as to whom there has been an express finding on the record, after opportunity for hearing, of a failure to comply with such requirement, but such termination or refusal shall be limited to the ... recipient as to whom such a finding has been made, and shall be limited in its effect to the particular program, or part thereof, in which such noncompliance has been so found....
20 U.S.C. § 1682.
The Secretary explained the import of the regulation in the following manner:
Section 86.31(b)(7) prohibits a recipient from assisting another party which discriminates on the basis of sex in serving students or employees of that recipient. This section might apply, for example, to financial support by the recipient to a community recreational group or to official institutional sanction of a professional or social organization. Among the criteria to be considered in each case are the substantiality of the relationship between the recipient subject to the regulation and the other party involved, including the financial support by the recipient, and whether the other party's activities relate so closely to the recipient's educational program or activity, or to students or employees in that program, that they fairly should be considered as activities of the recipient itself. (Under § 86.6(c), a recipient's obligations are not changed by membership in any league or other organization whose rules require or permit discrimination on the basis of sex).
The effect of this interpretation of the regulation is to say that although any cutoff of funds is normally to be limited to the program or activity of the recipient in which the discrimination occurs, a different standard applies where the recipient gives substantial assistance to what is called by the parties an "outside" organization in which event the Secretary is to consider the substantiality of the relationship between the University and the other party and whether the other party's activities relate so closely to the University's educational program or activity, or to students or employees in that program, that these activities should be considered as activities of the University itself. In such event, the regulation would permit the cutoff of federal funds to the University.
We conclude that this regulation clearly "effectuates" the provisions of § 1681 with respect to its programs and activities and that it is "consistent with achievement of the objectives of the statute authorizing the financial assistance in connection with which" the action is taken. As this Court has said in Coca-Cola Co. v. Atchison T. & S.F.Ry., 608 F.2d 213, 222 (5th Cir. 1979): "Courts generally grant 'great deference' to an agency's interpretation of its enabling statute." See also Dougherty Co. School System v. Harris, 622 F.2d 735, 737 (5th Cir. 1980) where we stated that the Secretary is entitled to "great latitude" in effectuating Title IX, 622 F.2d 735, 737 (5th Cir. 1980).
The original notification from the Secretary to the University outlined the nature of the "substantial assistance" which Iron Arrow received from the University in the following discussion:
The assistance to the Iron Arrow Honor Society is of two types....
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