Iron Arrow Honor Soc. v. Heckler

• Decision Date: 11 April 1983
• Docket Number: No. 80-5663,80-5663
• Citation: 702 F.2d 549
• Parties: 9 Ed. Law Rep. 1165 IRON ARROW HONOR SOCIETY, a "tap" or recognition association for men, et al., Plaintiffs-Appellants, v. Margaret M. HECKLER, Secretary of the Department of Health and Human Services, et al., Defendants-Appellees. . * Unit B
• Court: U.S. Court of Appeals — Fifth Circuit

Page 549

702 F.2d 549

9 Ed. Law Rep. 1165

IRON ARROW HONOR SOCIETY, a "tap" or recognition association for men, et al., Plaintiffs-Appellants, v. Margaret M. HECKLER, Secretary of the Department of Health and Human Services, et al., Defendants-Appellees.

No. 80-5663.

United States Court of Appeals, Fifth Circuit. ^*

Unit B

April 11, 1983.

Du Fresne & Du Fresne, Elizabeth J. Du Fresne, Steel, Hector & Davis, Joseph P. Klock, Jr., Miami, Fla., for plaintiffs-appellants.

Drew S. Days, III, Asst. Atty. Gen., U.S. Dept. of Justice, Civil Rights Div., Walter W. Barnett, Irving Goldstein, William Bradford Reynolds, Jessica Dunsay Silver, Walter W. Barnett, Washington, D.C., for defendants-appellees.

Appeal from the United States District Court for the Southern District of Florida.

ON REMAND FROM THE SUPREME COURT OF THE UNITED STATES

Before RONEY and ANDERSON, Circuit Judges, and TUTTLE, Senior Circuit Judge.

TUTTLE, Senior Circuit Judge:

I. INTRODUCTION

This case involves the proper ambit of the non-discrimination and enforcement provisions of Title IX of the Education Amendments of 1972. 20 U.S.C. Sec. 1681 et seq. It arises from the Supreme Court's order, --- U.S. ----, 102 S.Ct. 3475, 73 L.Ed.2d 1363 (1982), vacating our prior decision, 652 F.2d 445 (5th Cir.1981), and remanding in light of North Haven Board of Education v. Bell, 456 U.S. 512, 102 S.Ct. 1912, 72 L.Ed.2d 299 (1982). We must determine how far the Secretary of the Department of Health, Education and Welfare ¹ may extend the Congressional mandate to eliminate gender-based discrimination; the "simple justice" of this policy was articulated 20 years ago by President Kennedy with respect to discrimination on the basis of race:

Simple justice requires that public funds, to which all taxpayers of all races contribute, not be spent in any fashion which encourages, entrenches, subsidizes or results in racial discrimination. Direct discrimination by Federal, State, or local governments is prohibited by the Constitution. But indirect discrimination, through the use of Federal funds, is just as invidious....

President's Second Civil Rights Message to Congress (June 19, 1963), set out in the Hearings before Subcommittee No. 5 of the House Committee on the Judiciary, 88th Cong., 1st Sess., ser. 4, Pt. II, 1446, 1454 (1963). Also see Lau v. Nichols, 414 U.S. 563, 569, 94 S.Ct. 786, 789, 39 L.Ed.2d 1 (1974), quoting 110 Cong.Rec. 6543 (1963) (Remarks of Sen. Humphrey).

The Iron Arrow Society is the most prestigious honorary-recognition society at the University of Miami in Florida. Iron Arrow elects only men to membership. Male undergraduate and graduate students, alumni, faculty, administrators, and staff of the University are eligible for election to the Society on the basis of love for Alma Mater, leadership, scholarship, and humility. Those elected are initiated into the Society through a "tapping" ceremony. The Secretary determined, by letter of May 26, 1976, that the University of Miami, a private institution of higher education which receives substantial federal funding, ² gave "substantial assistance" to Iron Arrow. This assistance, the Secretary determined, subjected the University to Title IX's prohibition against gender-based discrimination.

Iron Arrow was established at the time of the founding of the University. The first president of the University provided the impetus for its founding and granted a charter to Iron Arrow; two University presidents have "signed into law" Iron Arrow's constitution and amendments to it. Iron Arrow is the only campus organization that holds a charter granted by the University. While the University no longer provides secretarial and mailing services or meeting facilities to the Society, nothing indicates that faculty members no longer serve on membership screening committees in all of the colleges, except the law school. In addition, many plaques and monuments around the campus pay tribute to Iron Arrow and its members, recognizing the Society as "the highest honor at the University of Miami." ³

Iron Arrow sought to enjoin the Secretary from terminating federal funding to the University. In our previous opinion, we affirmed the district court's denial of a permanent injunction. See 499 F.Supp. 496 (S.D.Fla.1980). In reaching this conclusion, we made two findings. First, we found that the HEW regulation upon which the Secretary acted, Reg. 86.31(b)(7) (1975), 40 Fed.Reg. 24128, ⁴ "effectuates" the provisions of Title IX and is consistent with the achievement of the objectives of that statute. Second, we found that, in light of the close history of the Society and the University continuing tangible and non-tangible support of the Society by the University constitutes adequate assistance to impute fairly Iron Arrow's sex discrimination practices to the University itself.

We now must reconsider our conclusions in light of the "program-specific" language in the Supreme Court's North Haven decision. We face the issue of the validity of the HEW regulations implementing Title IX and the Secretary's interpretation of several key phrases of these regulations. To assist us in this task, we requested briefs from the parties within 60 days. The Society and amicus Women's Commission of the University of Miami complied with our request. The Secretary failed to brief the substantive issues but filed a Motion for Suggestion of Mootness and a Motion for Remand. Iron Arrow responded by vigorously opposing this motion. We turn first to the mootness question before reaching the substantive issues.

II. MOOTNESS

The Secretary refers the Court to the letter dated September 23, 1982, of University President Edward T. Foote, II to C. Rhea Warren, Iron Arrow's Chief. That letter expresses the new policy of the University's Board of Trustees that it will not permit Iron Arrow to resume its discriminatory practices on campus even if Iron Arrow succeeds in this lawsuit. This letter presumably refers to the policy adopted by the Trustee Executive Committee on July 15, 1980, setting forth the requirement that Iron Arrow may only return to campus if it meets the code for student organizations, which includes a policy of non-discrimination. The Secretary, joined by amicus, contends that Iron Arrow's injury is attributable solely to the University's decision to keep it off the campus, and not to any action by the Department of Education or any possible action by this Court.

In determining whether this case still presents a justiciable Article III case or controversy, we must assess whether the Court may effectively render the relief requested by the appellant. Mills v. Green, 159 U.S. 651, 653, 16 S.Ct. 132, 40 L.Ed. 293 (1895). ⁵ It is important to bear in mind that, while the University is the defendant in the administrative action that provided the stimulus for this lawsuit, Iron Arrow is the plaintiff which has requested injunctive relief and whose policies form the basis for the Secretary's actions. We, therefore, must consider whether enjoining the Secretary from cutting off federal funding to the University would result in any benefit to Iron Arrow.

This case continues to present a live controversy. First, we find that we may still grant the plaintiffs effectual relief. The Secretary still could require, for the University to be found in compliance with Title IX, that the University take more substantial steps than merely prohibiting Iron Arrow from using campus facilities for its "tapping" ceremony. The Secretary conceivably could demand that the University, in addition to its stated policy, disestablish the historical ties between it and Iron Arrow by, inter alia, revoking the charter given by the University to the Society, refusing to recognize Iron Arrow any longer, withdrawing "sponsorship" of Iron Arrow by the office of the president, and prohibiting Iron Arrow from using the University's name. An injunction would serve to insulate the plaintiffs from all of these appropriate additional enforcement actions should we, for example, uphold the validity of the HEW regulation but find that the Secretary's application of the regulation in this particular instance is improper.

The second reason this case continues to present a live controversy is, quite simply, because the University's present policies display no assurances of permanence. We note that the University's policy of excluding Iron Arrow from campus, even if adopted in good faith, is subject to change at a later date. The present trustee policy barring Iron Arrow from campus while the Society maintains discriminatory membership practices itself reflects a shift from University policy adopted April 11, 1977, ⁶ and thus indicates that such policy statements are readily changeable. ⁷ A long line of Supreme Court cases supports the proposition that the "[v]oluntary discontinuance of an illegal activity does not operate to remove a case from the ambit of judicial power." Walling v. Helmerich & Payne, 323 U.S. 37, 43, 65 S.Ct. 11, 14, 89 L.Ed. 29 (1944). E.g., St. Paul Fire & Marine Insurance Co. v. Barry, 438 U.S. 531, 537-38, 98 S.Ct. 2923, 2927-28, 57 L.Ed.2d 932 (1978); United States v. Phosphate Export Association, 393 U.S. 199, 203, 89 S.Ct. 361, 364, 21 L.Ed.2d 344 (1968) (heavy burden of persuasion where voluntary discontinuance); United States v. W.T. Grant Co., 345 U.S. 629, 633, 73 S.Ct. 894, 897, 97 L.Ed. 1303 (1953); Hecht Co. v. Bowles, 321 U.S. 321, 327, 64 S.Ct. 587, 590, 88 L.Ed. 754 (1944). ⁸ Also see Otis & Co. v. SEC, 106 F.2d 579, 583-84 (6th Cir.1939). We are bound by another panel of this Circuit, which recently offered the following advice in this regard: "Courts should keep in mind the oft-repeated observation that 'reform timed to anticipate or blunt the force of a lawsuit offer[s] insufficient assurance that the practice sought to be enjoined will not be repeated.' " NAACP v. City of Evergreen, Alabama, 693 F.2d 1367, 1370 (11th Cir., 1982),...