University of Richmond v. Bell, Civ. A. No. 81-0406-R.

• Decision Date: 08 July 1982
• Docket Number: Civ. A. No. 81-0406-R.
• Citation: 543 F. Supp. 321
• Parties: UNIVERSITY OF RICHMOND v. Terrell H. BELL, et al.
• Court: U.S. District Court — Eastern District of Virginia

543 F. Supp. 321

UNIVERSITY OF RICHMOND v. Terrell H. BELL, et al.

Civ. A. No. 81-0406-R.

United States District Court, E. D. Virginia, Richmond Division.

July 8, 1982.

Robert H. Patterson, Jr., W. Carter Younger, Eva S. Tashjian-Brown, McGuire, Woods & Battle, Richmond, Va., for plaintiff.

Debra J. Prillaman, Asst. U. S. Atty., Richmond, Va., for defendant.

OPINION

WARRINER, District Judge.

I

The refusal of the University of Richmond (UR) to cooperate with a Department of Education (ED) investigation of its athletic program gives rise to a suit in which the Court must determine the validity of and scope of several ED regulations promulgated pursuant to Title IX of the Education Amendments of 1972, 20 U.S.C. § 1681 et seq. (Title IX). See 34 C.F.R. § 106.1 et seq. (1981). At issue is whether the ED is authorized to investigate and regulate the athletic program of a private university where the athletic program itself receives no direct federal financial assistance.

The University of Richmond is a private university consisting of several separate schools and colleges, among which are two coordinate undergraduate liberal arts colleges: Richmond College for men and Westhampton College for women. Although students from both colleges attend most classes together, the two schools maintain separate admissions, hold separate graduation exercises, maintain separate traditions and provide many auxiliary services separately. The athletic department, on the other hand, offers intercollegiate and club sports for both men and women. The athletic department is funded separately from other programs at the University based on a budget drawn from sports revenues and gifts and the general funds of the University. It receives no direct federal financial assistance.

By a letter dated 6 February 1981, defendant Dewey E. Dodds, Director of the Office of Civil Rights (OCR), Region III, United States Department of Education, notified the University that OCR had received a complaint of sex discrimination in the University's athletic program. Dodds stated that OCR had reviewed the allegations and determined OCR had the authority to investigate the complaint. OCR's "determination" of authority to investigate UR's athletic program was based, according to the letter, upon the University's receipt of a $1900 Library Resource Grant.¹ The University, by counsel, responded to Dodds' letter by requesting clarification of OCR's intent and questioning the propriety of the OCR investigation.²

In a letter dated 27 February 1981, Dodds informed UR's president that the University had been selected for a "Title IX compliance review addressing its intercollegiate athletic program," and that OCR was planning a week-long on-site review of the intercollegiate athletic program. In connection therewith, he requested the University answer a lengthy information request within 30 days.³ This letter was, in turn, followed by another dated 4 March 1981 in which Dodds reiterated OCR's duty to investigate complaints of discrimination within the purview of plaintiff's authority, and stating that OCR was in receipt of two such complaints.

The University's response of 14 March 1981 questioned OCR's jurisdiction to conduct the investigation as the athletic program at UR did not receive federal funds and therefore would not be within the reach of Title IX. It also noted that the information request was unduly lengthy, burdensome, possibly in excess of OCR's investigative authority, and a form request which had not been submitted for prior approval to the Office of Management and Budget as provided in 42 U.S.C. § 3509.⁴

Dodds, in turn, responded to this letter on 31 March 1981. Therein, as the basis for OCR's authority, Dodds asserted that UR's receipt of any federal funds at all, directly or indirectly, required its compliance with the anti-discrimination provisions of Title IX in all its educational programs and activities, including athletics. Dodds indicated that the federal financial assistance extended to the University for academic year 1980-81 included: National Direct Student Loans, Basic Educational Opportunity Grants, Supplemental Educational Opportunity Grants, College Work Study, Department of Education Grant.⁵ After setting out these five sources of assistance Dodds continued:

Although most of this Federal financial assistance is paid directly to the students, receipt of the Federal funds is conditioned upon enrollment of the student at an approved institution of higher education. In this sense, the institution is ultimately the beneficiary of the Federal funds which enable students to attend the institution in the first instance and to pay tuition and other educational expenses. Therefore, not only by virtue of the direct grants extended to the University of Richmond, but also the receipt of Federal funds by its students, the University must comply with the anti-discrimination provisions of Title IX in all its educational programs and activities, including athletics.

Dodds cautioned that failure to comply with the information request would result in the matter's referral for enforcement proceedings. (Stip. Exh. G). The University subsequently filed this action seeking injunctive and declaratory relief, and informed OCR of its refusal to comply with the data request. Pending a decision in this action OCR has not pressed for access to the University for the planned on-site investigation.

The parties have filed a joint stipulation of fact and have submitted the matter for a decision on the merits through cross-motions for summary judgment. Both motions, fully briefed, are ripe for consideration.

The Court has jurisdiction over this suit for declaratory and injunctive relief pursuant to Title IX, 20 U.S.C. § 1683. Relief is sought under the Administrative Procedures Act, 5 U.S.C. § 701 et seq. and the Federal Declaratory Judgment Act, 28 U.S.C. §§ 2201 & 2202; 28 U.S.C. § 1331.

II

Congress, in 1972, enacted legislation which "proscribed gender discrimination in education programs or activities receiving Federal financial assistance." 20 U.S.C. § 1681; North Haven Board of Education v. Bell, ___ U.S. ___, 102 S.Ct. 1912, 72 L.Ed.2d 299 (1982). Section 901 of Title IX provides:

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. § 1681.

Section 902 authorizes agencies awarding federal financial assistance to education programs or activities to effectuate the provisions of section 901 "with respect to such program or activity" by promulgating rules and regulations of "general applicability" which are "consistent with achievement of the objectives of the statute authorizing the financial assistance in connection with which the action is taken." Compliance may be effected by any means authorized by law including fund cutoffs to the "recipient" but the effect thereof "shall be limited in its effect to the particular program ... in which ... non compliance has been found." 20 U.S.C. § 1682. Since 1975, HEW and the ED have promulgated numerous regulations affecting the operation of federally funded education programs. The regulations extend to policies involving employment, admissions, housing, textbooks and athletics. They cover almost every aspect of the operation of a university. See 34 C.F.R. § 106.1 et seq.⁶

Plaintiff, in brief, argued that Title IX is "program specific" and should apply only to "education programs or activities" receiving direct federal financial assistance. Plaintiff contended that ED's regulations are ultra vires and unlawful to the extent that they attempt to regulate programs which do not receive such direct funding. Such regulations, in plaintiff's view, violate Title IX's statutory mandate and are void. Moreover, plaintiff argued that the regulations are unconstitutional in that they unreasonably restrict academic freedom and are not the least restrictive alternative available.

Defendants took a position diametrically opposed to plaintiff, ascribing an "institutional" scope to Title IX. Stressing that a Court should defer to an agency's interpretation of implementing legislation, the defendants argue that the statute and the regulations passed thereunder are such that a university, as "recipient" of any federal financial assistance, is subject to regulation by OCR. See 34 C.F.R. §§ 106.2, 106.11, 106.37, 106.41. Their contention is that some programs at UR receive federal financial assistance and, as a consequence, all programs, including the athletic program, are subject to Title IX regulation. The breadth of the ED's view as to the scope of its authority was unequivocally set out both in Dodds' letter of 31 March 1981, and in his deposition whereby he suggested that the receipt of $1.00 by any program or activity at UR would subject all its programs and activities to the ED's authority.

In the alternative, the ED argues that the University is bound contractually to comply with the regulations through its execution of an "Assurance of Compliance" on 26 September 1976, in connection with the receipt of federal financial assistance from HEW. See (Stip. Exh. A(1)); 34 C.F.R. § 106.4.⁷ Defendants concede that plaintiff's obligation to comply with the assurances extends only so far as the valid regulatory authority of the ED. They argue, however, that the present breadth of scope was extant when plaintiff signed the agreements and it should be foreclosed to deny knowledge of that scope as a means of avoiding its obligations thereunder.

The Supreme Court, subsequent to the filing of briefs, determined the scope of Title IX to be "program-specific" both as to its prohibition of gender discrimination, 20 U.S.C. § 1681(a), and as to its enforcement provision under which ED has promulgated its regulations. 20 U.S.C. § 1682....