GROVE CITY COLLEGE, INDIVIDUALLY AND ON BEHALF OF ITS STUDENTS, ET AL., PETITIONERS v. TERREL H. BELL, SECRETARY OF EDUCATION, ET AL. No. 82-792 In the Supreme Court of the United States October Term, 1983 On writ of certiorari to the United States Court of Appeals for the Third Circuit Brief for the Respondents TABLE OF CONTENTS Opinions below Jurisdiction Constitutional provision, statutes, and regulations involved Statement Summary of argument Argument: I. Grove City College operates an "education program or activity receiving Federal financial assistance" within the meaning of Title IX A. When the federal government pays students' tuition and expenses, it provides assistance to the college's financial aid program B. The legislative history of Title IX shows that Congress intended to eliminate sex discrimination in the provision of financial aid by recipients of federal funds C. Subsequent legislative action confirms Congress's intent that Title IX should apply to colleges whose students receive BEOGs D. The legislative history of Title VI supports the conclusion that colleges "receiv(e) Federal financial assistance" when the federal government pays for the education of their students II. The Department may properly terminate assistance to Grove City because it refused to execute an Assurance of Compliance with Title IX A. The Department's assurance requirement is consistent with the program-specific limitation of Title IX B. Title IX authorizes termination of federal assistance when a recipient refuses to execute an Assurance of Compliance III. The application of Title IX to the College does not infringe the First Amendment rights of the College or its students Conclusion Appendix A Appendix B Appendix C OPINIONS BELOW The opinion of the court of appeals (Pet. App. A1-A44) is reported at 687 F.2d 684. The opinion of the district court (Pet. App. A45-A88) is reported at 500 F. Supp. 253. The decision of the Administrative Law Judge (Pet. App. A89-A98) is not reported. JURISDICTION The judgment of the court of appeals (Pet. App. A99-A100) was entered on August 12, 1982. The petition for a writ of certiorari was filed on November 9, 1982, and was granted on February 22, 1983. The jurisdiction of this Court rests on 28 U.S.C. 1254(1). CONSTITUTIONAL PROVISION, STATUTES, AND REGULATIONS INVOLVED 1. The First Amendment to the United States Constitution is set forth at Pet. App. A101. 2. Sections 901(a) and 902 of Title IX of the Education Amendments of 1972, 20 U.S.C. 1681(a) and 1682, are set forth at Pet. App. A101-A105. 3. Relevant portions of the Basic Educational Opportunity Grant statute, 20 U.S.C. (Supp. V) 1070a, are set forth at App. A, infra, 1a-4a. 4. Relevant Title IX regulations of the Department of Education -- 34 C.F.R. 106.2, 106.4, and 106.11 -- are set forth at Pet. App. A106-A108, A110-A111. /1/ 5. Relevant Basic Educational Opportunity Grant regulations -- 34 C.F.R. 690.1, 690.3-690.7, 690.53, 690.61-690.94, 690.71-690.85, and 690.91-690.96 -- are set forth at App. B, infra, 5a-24a. QUESTIONS PRESENTED 1. Whether Grove City College operates an "education program or activity receiving Federal financial assistance" under Title IX of the Education Amendments of 1972 (20 U.S.C. 1681 (a)), and is thus subject to a Department of Education regulation requiring it to execute an "Assurance of Compliance" with Title IX. 2. Whether the Department of Education may terminate federal financial assistance to Grove City College under the Basic Educational Opportunity Grant statute, 20 U.S.C. (Supp. V) 1070a, if the College refuses to execute an Assurance of Compliance. 3. Whether the application of Title IX regulations to Grove City College infringes the First Amendment rights of the College or its students. STATEMENT Petitioners, Grove City College ("Grove City" or "the College") and four of its students who received Basic Educational Opportunity Grants ("BEOGs") and Guaranteed Student Loans ("GSLs"), brought this suit in November 1978 for declaratory and injunctive relief prohibiting the Department of Health, Education, and Welfare ("HEW") /2/ from terminating federal financial assistance received by the College under the BEOG and GSL statutes. HEW had threatened termination under Title IX of the Education Amendments of 1972, 20 U.S.C. 1681 et seq., because the College refused to comply with HEW regulations by executing an Assurance of Compliance with Title IX. /3/ 1. Basic Educational Opportunity Grants (20 U.S.C. (Supp. V) 1070a) were established by the Education Amendments of 1972 (Pub. L. No. 92-318, 86 Stat. 248), which amended the Higher Education Act of 1965 /4/ to provide grants enabling students to pursue an undergraduate degree. The BEOG program is "viewed as the foundation upon which all other Federal student assistance programs are based." S. Conf. Rep. No. 92-798, 92d Cong., 2d Sess. 167 (1972). A maximum amount is established for the grant. /5/ The amount that the student or his family can reasonably be expected to contribute is subtracted from the maximum grant. 20 U.S.C. (Supp. V) 1070a(a)(2)(A)(i). In addition, the grant cannot exceed a certain fraction of the cost of attendance at the student's institution. 20 U.S.C. (Supp. V) 1070a(a)(2)(B)(i). "(C)ost of attendance" is defined to include tuition and fees, room and board, and an allowance for books, supplies, and miscellaneous expenses. See 20 U.S.C. (Supp. V) 1089(d). /6/ The program is administered through regulations promulgated by the Secretary of Education. 20 U.S.C. (Supp. V) 1070a(b)(3)(A). /7/ To obtain a grant, the student must file an application containing the information and assurances the Secretary deems necessary. 20 U.S.C. (Supp. V) 1070a(b)(2). The Secretary has established two procedures for computing and disbursing grants. Under the Regular Disbursement System ("RDS") the institution computes the grant amount, using criteria established by regulation, and distributes it to the student or credits the student's account (34 C.F.R. 690.78(a)). The Secretary estimates the amount the institution will need for grants, and advances that sum to the institution (34 C.F.R. 690.74). In the alternative, if the institution wishes, the Secretary will calculate and disburse the grants directly to students under the Alternate Disbursement System ("ADS"). 34 C.F.R. 690.91-690.96. Under both systems the institution must certify that the student meets eligibility requirements for a BEOG (34 C.F.R. 690.4), is making satisfactory progress in his course of study, and is not in default on (or does not owe a refund on) any federal grant or loan. 34 C.F.R. 690.75, 690.94. The institution must also attempt to resolve any errors on the Student Eligibility Report submitted to it by the student (34 C.F.R. 690.77, 690.94(4)(b)), inform the Department or take appropriate action if a student withdraws or is expelled (34 C.F.R. 690.78(c), 690.95(a)), and maintain records relating to BEOGs (34 C.F.R. 690.83, 690.96). 2. A large number of Grove City students finance their education, in part, with federal grants and loans. Grove City has elected to participate in the Alternate Disbursement System, so that BEOGs are mailed to students after the institution makes appropriate certifications. /8/ The Department's regulations define "Federal financial assistance" as (34 C.F.R. 106.2(g)(1); emphasis added): (1) A grant or loan of Federal financial assistance, including funds made available for: * * * * * (ii) Scholarships, loans, grants, wages or other funds extended to any entity for payment to or on behalf of students admitted to that entity, or extended directly to such students for payment to that entity. The regulations also define a "Recipient" of federal assistance as (34 C.F.R. 106.2(h)): (A)ny public or private agency, institution, or organization, or other entity, or any person, to whom Federal financial assistance is extended directly or through another recipient and which operates an education program or activity which receives or benefits from such assistance * * * . Because Grove City is thus a "recipient" of "Federal financial assistance," the Department requested that it file an Assurance of Compliance with Title IX, as required by 34 C.F.R. 106.4. After the College had refused on five occasions to sign the required assurance, the Department began enforcement proceedings. An administrative hearing was held, at which the sole issue was whether the College was a recipient of federal financial assistance. /9/ The College acknowledged that it routinely executed the institutional sections of BEOG application forms, and certified data concerning applicants' costs of education and enrollment status so that its students might receive BEOG assistance (Tr. 136, 178, 192-196, 199). See 34 C.F.R. 690.94-690.96. /10/ Evidence at the hearing showed that approximately 50% of the College's operating budget comes from student tuition payments, and that some 140 students were BEOG recipients (Tr. 202; Pet. App. A7). /11/ The College's president testified that the College "will not duplicate" aid its students receive through BEOGs (Tr. 189). The administrative law judge ("ALJ") concluded that the College received federal financial assistance within the meaning of Title IX, and was thus required to execute an Assurance of Compliance. The ALJ entered an order terminating assistance until the College "satisfies the Department that it is in compliance" with the Department's Title IX regulations (Pet. App. A97). 3. The College then filed this action. /12/ On cross-motions for summary judgment, the district court held that the College did not have to sign an assurance insofar as it required compliance with Subpart E (employment discrimination) of the Title IX regulations, since employment was beyond the scope of Title IX and the regulations were, in that regard, invalid (Pet. App. A76-A78). /13/ The court also held that termination of assistance is a permissible remedy only where actual sex discrimination has been found (id. at A79). The court of appeals reversed those determinations. /14/ It observed that the language of Section 901(a), the legislative history, and relevant case law all indicated that an institution whose students paid for their education with federal aid was a recipient of federal financial assistance within the meaning of Title IX (Pet. App. A11-A22). Judge Garth and Judge Muir (sitting by designation) also concluded that in such cases the institution as a whole was a covered "program or activity" (id. at A23-A31). Judge Becker found this conclusion unnecessary to the decision. Since the College was required to sign an assurance if it conducted any covered "program," the court was in his view not required to define the outer contours of possible coverage (id. at A40-A44). Turning to the regulations, the court noted (id. at A34-A35) that this Court had, since the district court's decision, upheld the validity of Subpart E in North Haven Board of Education v. Bell, 456 U.S. 512 (1982). The court of appeals went on to hold that Section 902 of Title IX permitted termination of assistance, not just upon proof of actual discrimination, but for any refusal to comply with valid departmental regulations (Pet. App. A35-A38). The court also rejected Grove City's argument that compliance with Title IX would infringe the First Amendment rights of the College and its students (id. at A32-A33). SUMMARY OF ARGUMENT I. Grove City College operates an "education program or activity receiving Federal financial assistance" within the meaning of Title IX. It is thus required to execute an Assurance of Compliance with the nondiscrimination requirements of that title. A. The College "receiv(es)" federal funds paid out in the form of Basic Educational Opportunity Grants. The purpose of the grants is to enable students to pay their Grove City tuition and expenses. The grants are measured by the cost of attendance at Grove City -- defined as charges for tuition, fees, room, board, and similar expenses. A student's receipt of grant funds is contingent on his continued attendance, and reduced by the amount he (or his family) can contribute to the cost of attendance. In sum, the grant money is in fact used to pay for the student's education at Grove City. It is of little import that the student, not Grove City, is named as the payee of the federal check. Petitioners themselves admit that "assistance which is provided through another recipient to an educational program or activity is * * * within the scope of Title IX coverage" (Br. 17 n.17). The "education program or activity" that receives these federal grants is the College's financial aid program, and it is that program that must comply with the requirements of Title IX. Consequently, subjecting schools whose students receive federal aid to the requirements of Title IX satisfies the statute's program-specific nature. The statutory purposes of Title IX require that it be held to reach schools whose students receive federal financial aid. The BEOG program -- whether under RDS or ADS -- represents a substantial contribution to and subsidy for the College's financial aid and scholarship program. And Congress clearly intended that the entire "program or activity" into which federal money is channeled should be conducted in a nondiscriminatory fashion. B. The legislative history of Title IX shows that Congress intended to eliminate sex discrimination in the provision of financial aid by schools that received federal funds for that purpose. The provision that was enacted as Title IX originated as an amendment to a bill whose most important feature was the creation of BEOGs. The Senate and House debates repeatedly show specific concern with discrimination by colleges in the provision of financial aid. Given that concern, and the general architecture of the bill, it seems clear that Congress intended schools receiving BEOG funds to be subject to Title IX. C. Subsequent legislative action confirms the 1972 Congress's intent that colleges whose students receive BEOGs not be exempt from Title IX. Congress has reviewed and declined to disturb the very regulations that cover Grove City in this case; the Senate has rejected an amendment designed to exempt recipient schools from the requirements of Title IX; and Congress has repeatedly reenacted the BEOG statute, fully aware that recipient schools were being required to comply with Title IX. D. The legislative history of Title VI -- on which Title IX is modeled -- also supports the conclusion that Grove City is subject to Title IX. II. The court of appeals properly concluded that the Department could terminate BEOGs flowing to Grove City when the College refused to execute an Assurance of Compliance. Both the form and the regulation requiring its 0execution (34 C.F.R. 106.4(a)) are program - specific, applying "only to an 'education program or activity for which (Grove City) receives or benefits from Federal financial assistance'" (Pet. App. A42; emphasis in original). And there is no warrant in the statute or its history for petitioners' contention that funds may be terminated only upon a showing of actual discrimination. The assurance-of-compliance regulation is an integral part of a scheme for voluntary enforcement of Title IX -- a scheme that would be completely frustrated if the petitioners' contentions were accepted. III. The application of Title IX to the College does not infringe the First Amendment rights of the College or its students. The federal government has the power to fix the terms upon which it dispenses federal largesse, and neither schools nor their students are required to accept such aid. ARGUMENT I. GROVE CITY COLLEGE OPERATES AN "EDUCATION PROGRAM OR ACTIVITY RECEIVING FEDERAL FINANCIAL ASSISTANCE" WITHIN THE MEANING OF TITLE IX The principal issue in this case is a simple one. It is whether Grove City College must sign a Department of Education form stating that it will comply with Title IX of the Education Amendments of 1972, 20 U.S.C. 1681 et seq., insofar as that statute applies to the College. Section 901(a) of Title IX (20 U.S.C. 1681(a)) declares (emphasis added): 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 * * * . In this case the relevant "Federal financial assistance" is Basic Educational Opportunity Grants. Petitioners argue that because that assistance reaches Grove City only indirectly (through its students), and because the College has only a modest role in the distribution of BEOG funds, it conducts no "program or activity receiving" federal aid within the meaning of Title IX, and consequently that it need not sign the form. This contention ignores the fact that the BEOG program directly subsidizes a financial aid program for the College; it does (at federal expense) precisely what the College does (at its own expense) through its own financial aid and scholarship program. The College's financial aid program is therefore clearly a "program or activity receiving Federal financial assistance." The legislative history of Title IX supports this conclusion. In attaching Title IX of the statute creating BEOGs in 1972, Congress expressed particular concern that colleges were engaging in sex discrimination when handing out student financial aid, and that the federal government supported such discrimination by subsidizing student aid programs. Subsequent action by Congress has reemphasized its intent that colleges should be considered "recipients" of federal assistance when their students' education is paid for with federal financial aid funds. A similar conclusion emerges from the legislative history of Title VI, on which Title IX is in large part based. A. When The Federal Government Pays Students' Tuition And Expenses, It Provides Assistance To The College's Financial Aid Program Petitioners argue that requiring Grove City to sign an Assurance of Compliance is inconsistent in two ways with the language of Title IX. They argue first that the College is not "receiving" federal financial assistance within the meaning of Section 901 when its students pay for their education with BEOGs. Second, they claim that treating the College as a recipient of federal assistance is inconsistent with the "program or activity" restriction found in Title IX. Both of these arguments are without merit. 1. Petitioners' first argument (Br. 14-18) is that the Department's regulation, defining "recipient" as one who "receives or benefits" from federal financial assistance (34 C.F.R. 106.2(h)), is unfaithful to the more restrictive language used by Congress in Section 901. /15/ In fact, the regulations define the statutory term ("receiving") in an entirely sensible and natural way. The purpose of BEOGs is to pay for the education students get at Grove City. The grants are measured by the "cost of attendance" at Grove City. Congress has defined that cost as the students' charges for tuition, fees, room, board, and similar expenses. (See page 3 & note 6 supra.) The students' receipt of money is conditioned on continued attendance and satisfactory progress in their studies. 34 C.F.R. 690.94. Money that a student (or the student's family) can contribute toward the cost of attendance is subtracted from the amount of the BEOG, 20 U.S.C. (Supp. V) 1070a(a)(2)(A)(i), so that grants effectively must be used to pay for the students' education. /16/ Not surprisingly, evidence at the administrative hearing in this case showed -- and petitioners seem to concede -- that Grove City's students use their BEOGs for just that purpose. See note 11, supra; Pet. Br. 10, 14. It is unimportant that Grove City is not named as the payee of the checks issued by the federal government. Petitioners acknowledge that "assistance which is provided through another recipient to an educational program or activity is * * * within the scope of Title IX coverage" (Br. 17 n.17). That is so, they say, when a college receives federal funds via a state agency. Petitioners offer no reason why a different interpretation is warranted when the college receives federal funds via its students. The language of Title IX "requires only federal assistance -- not payment -- to a program or activity for Title (IX) to attach." Bob Jones University v. Johnson, 396 F.Supp. 597, 602 (D.S.C. 1974), aff'd, 529 F.2d 514 (4th Cir. 1975). /17/ 2. Petitioners next argue (Br. 18-21) that treating Grove City as a recipient of federal assistance is inconsistent with the "program or activity" restriction found in Title IX. The plurality opinion in the court of appeals in this case concluded that "(b)ecause the federal grants made to Grove's students necessarily inure to the benefit of the entire College, the 'program' here must be defined as the entire institution of Grove City College" (Pet. App. A31; footnote omitted). /18/ Apparently convinced that the choice is between such institution-wide coverage and no coverage at all, petitioners contend that the latter outcome is necessary if the program-specific language of Title IX is to be given any meaning. In fact, the dilemma petitioners pose does not exist. a. We believe that the court of appeals plurality's expansive interpretation of the scope of Title IX coverage does not properly construe the statute as interpreted by this Court in North Haven, supra. The plurality reasoned that BEOG funds received by the College can be put to use anywhere in the school, and that a rule requiring the tracing of those monies would render the termination sanction ineffective (Pet. App. A31). The plurality also concluded that BEOG funds, wherever used, free up money for use elsewhere in the school (id. at A27, A28-A29 n.25). Accepting either of these lines of analysis would wholly obliterate the "program or activity" limitation contained in Sections 901 and 902 (20 U.S.C. 1681, 1682). Most colleges and universities in the United States receive some federal funds by way of student aid. Since Title IX coverage does not depend on the amount of federal aid received, /19/ the proposition advanced by the court of appeals would mean that if one student paid for his education with one dollar of BEOG funds, the entire school would automatically be subject to Title IX. /20/ That in turn would suggest that all employees at virtually all institutions of higher education in the country are covered by the Subpart E regulations, notwithstanding this Court's explicit direction in North Haven that those regulations not be given such universal application. 456 U.S. at 535-540. Further, the analysis of the court of appeals would apply with equal force even to federal funds earmarked for a particular use. If a school is given a grant to buy hardware for its computer science program, that federal money "frees up" the school's own funds for use in other programs and activities no less than BEOGs do. The consequence of the Third Circuit's devotion to economic realities is thus that the receipt of any federal money for any purpose brings the entire school within the ambit of Title IX. But as this Court stressed in North Haven, both the ban on sex discrimination in Section 901(a) (20 U.S.C. 1681(a)) and the fund-termination sanction authorized by Section 902 (20 U.S.C. 1682) are limited to the assisted program or activity. The Court pointed out that Congress "failed to adopt proposals that would have prohibited all discriminatory practices of an institution that receives federal funds" (456 U.S. at 537), and quoted Senator Bayh's statement that the "'effect of termination of funds is limited to the particular entity and program in which such noncompliance has been found'" (ibid.). In sum, the question of Title IX coverage should be resolved not by following to the end the ecnomic ripples generated by federal aid, but by a common-sense discernment of what, in the most natural way, can be considered the educational "program or activity" assisted by federal aid. b. Under that approach, we believe that the natural candidate as the "program or activity" of Grove City assisted by federal student aid is the College's entire financial aid program (including any financial aid dispensed from non-federal funds). This solution sensibly accords with conventional nomenclature and organizational and budgetary practices at educational institutions. Virtually all such institutions have something called a financial aid (or "scholarship") program, administered by a financial aid office. The budget of such an office is normally a separate budgetary item. See, e.g., Reauthorization of the Higher Education Act and Related Measures: Hearings Before the Subcomm. on Postsecondary Education of the House Comm. on Education and Labor, 96th Cong., 1st Sess., Pt. III, 422 (1979). The purpose of the program is specific and well-recognized: it enables schools to recruit students who otherwise could not afford to attend. Funds are commonly raised for the financial aid program from alumni and friends, and earmarked for that program. Federal aid to students can be seen as a subsidy of that program without in any way offending the program-specific nature of Title IX. c. Petitioners' argument that Grove City conducts no federally assisted program or activity (because it does not itself distribute BEOG funds) rests on their assumption that the sole purpose of Title IX is to prevent schools from discriminating in the disbursement of federal money. It is true that, in the majority of federal student aid programs, funds are disbursed by the college itself to students selected by the school on the basis of the relevant criteria. /21/ And petitioners concede (Br. 20 & 21 n.19) that a college like Hillsdale College (see note 41, infra) -- which has "campus-based loan and grant programs (and) * * * disburse(s) federal funds to eligible students" -- is for that reason covered by Title IX. The reason for applying Title IX in such cases is obvious: colleges may discriminate in dispensing the federal funds. But a college intent on discriminating can do so even under the Alternate Disbursement System for BEOGs. Under ADS the college, though it does not disburse federal funds, must certify that student applicants are making satisfactory progress in their courses of study (34 C.F.R. 690.94) and meet the eligibility reqquirements for BEOGs (34 C.F.R. 690.4) -- matters not always determinable according to fixed criteria, and thus open to discriminatory administration. /22/ In any event, petitioners' argument takes too narrow a view of Congress's Title IX concerns. Congress did wish to prevent schools from putting identifiable federal dollars to discriminatory uses. But Congress was also concerned about federal participation in discriminatory college programs even where specific federal funds were not tainted. As Representative Mink stated in 1975: It is difficult to trace the Federal dollars precisely. A narrow interpretation of title IX would render the law meaningless and virtually impossible either to enforce or to administer. For example, the slide projector in one classroom might be purchased with title I ESEA money, while the slide projector in the adjacent room was not. It surely is not the intent of Congress to prohibit sex -- or race or national origin -- discrimination in the room with the title I projector, while allowing it in the adjacement room. Sex Discrimination Regulations: Hearings Before the Subcomm. on Postsecondary Education of the House Comm. on Education and Labor, 94th Cong., 1st Sess. 166 (1975) ("1975 Hearings"). Precisely the same incongruity can occur in the operation of a school's financial aid program. When Congress authorized BEOG funding for needy students' educational expenses, it undertook a financial burden that colleges would otherwise have shouldered alone through their scholarship and financial aid programs. As Grove City's president testified in this case, the College now "will not duplicate" aid its students receive through BEOGs (Tr. 189). By paying such costs Congress thus provides assistance to a school's financial aid program in the same way it provides assistance to a fine arts program by paying for slide projectors. See Hillsdale College v. Department of Health, Education & Welfare, 696 F.2d 418, 429-430 (6th Cir. 1982), petition for cert. pending, No. 82-1538. But "(i)t surely is not the intent of Congress to prohibit sex * * * discrimination in the room (where federal aid is handed out to incoming students), while allowing it in the adjacent room (where the school's own scholarship funds are disbursed)." Rather, Congress intended that the entire "program or activity" into which federal money is channeled should be conducted in a nondiscriminatory fashion even so far as the school's own money is concerned. /23/ There is still another aspect to the problem of discrimination in the administration of BEOGs. Even if such grants are administered under ADS, a school can exercise a veto against beneficiaries on the basis of sex by discriminating on the basis of sex in its admissions. /24/ The school, though it plays only a limited role in disbursement, can thus deny women applicants the benefit of federal financial aid by refusing them the education it is meant to buy. /25/ Even if the school receives no other form of federal financial assistance, such discrimination in admissions can carry over to the BEOG program; Title IX coverage insures that BEOGs are not -- in this indirect way -- disbursed in a discriminatory manner. To summarize: applying Title IX to Grove City's financial aid and scholarship program as a whole satisfies the statute's program-specific nature. It also helps effectuate the statutory purpose even though the federal grants do not go directly to the College: it prevents direct and indirect discrimination in the use of federal funds, and assures that the federal government does not contribute to a discriminatory educational program. B. The Legislative History Of Title IX Shows That Congress Intended To Eliminate Sex Discrimination In The Provision Of Financial Aid By Recipients Of Federal Funds The legislative history of Title IX supports the conclusion that Grove City's financial aid program is "receiving Federal financial assistance." In the Education Amendments of 1972 -- which created the BEOG program -- Congress simultaneously enacted Title IX, in part because of its concern that colleges were engaging in sex discrimination when handing out student financial aid, and that the federal government supported such discrimination through its assistance to student aid programs. 1. House a. The movement toward what became Title IX began in 1970, when a special House subcommittee on education chaired by Representative Green conducted hearings on discrimination against women. Discrimination Against Women: Hearings on Section 805 of H.R. 16098 Before the Special Subcomm. on Education of the House Comm. on Education and Labor, 91st Cong., 2d Sess., Pts. 1 & 2 (1970) ("1970 Hearings"). The bill considered during these hearings (H.R. 16098, 91st Cong., 2d Sess. Section 805 (1970)) would have amended Title VI of the Civil Rights Act of 1964 (42 U.S.C. 2000d) to include a prohibition against sex discrimination. Although the hearings covered a broad range of topics, special attention was devoted to the problems of women students, specifically including discrimination in admissions and in the provision of financial aid. Those who addressed those problems concluded that a federal solution was appropriate, given the pervasive nature of federal assistance to colleges and universities. Representative May, for example, stated (1970 Hearings, supra, Pt. 1, at 235): Discrimination upon the basis of sex has been going on for so long with respect to the students that it's criminal. Here we have this scholarship money -- much of it, please bear in mind, is federal -- going to students. Which students receive this scholarship money is decided upon by the individual colleges and universities -- where there are often quota restrictions on women recipients. Thus, we find ourselves faced with a situation wherein federal funds are subsidizing discriminatory opportunities -- and there is no way to get it back. In a similar vein, Representative Mink stated (id. at 433): Scholarships and other forms of financial assistance are also distributed on a discriminatory basis, making it more difficult for women to afford a higher education. Representative Griffiths argued (1970 Hearings, supra, Pt. 2, at 739): Many universities and colleges * * * discriminat(e) against women * * * by applying quotas for women in admission to both undergraduate and graduate training programs. They discriminate against them in awarding scholarships and providing financial assistance. She added (id. at 740): 2,174 universities and colleges received $3,367 million from the Federal Government in fiscal year 1968. * * * Should the Federal Government close its eyes to such unjust discrimination and continue to provide the billions of dollars that help to support those unjust practices? /26/ The same problems were addressed by numerous other witnesses before the Committee. /27/ b. Although the 1970 proposal never emerged from committee, in the next year Representative Green introduced H.R. 7248, 92d Cong., 1st Sess. (1971), which contained a separate prohibition (Title X) against sex discrimination in federally assisted education programs and activities. Other provisions in the bill extended funding provided by the Higher Education Act of 1965 (Pub. L. No. 89-329, 79 Stat. 1219), including student assistance in the form of educational opportunity grants, guaranteed student loans, and work-study. See H.R. Rep. No. 92-554, 92d Cong., 1st Sess 3-4, 15-34 (1971). Most of the debate on Title X focused on the effect it would have on undergraduate admissions (117 Cong. Rec. 39248-39261 (1971)). But it was clearly understood that schools which accepted federal student aid would be covered by the nondiscrimination provision. When Representative Erlenborn proposed exempting undergraduate admissions from the bill, he said (117 Cong. Rec. 39260 (1971)): In the same bill where we are holding out the prospect of putting Federal funds in every institution of higher education so that every institution will then come under the terms of title X, we are then saying "but if you take this money or any other Federal funds we are then going to determine for you what your administration practice should be." Speaking in support of Representative Erlenborn's amendment, Representative Steiger said (117 Cong. Rec. 39257 (1971)): (U)nder the bill, under the titles which we have gone over before, we have in effect allowed the local financial assistance officers to have a rather broad sweep of powers in their right to pick and choose those who should receive aid which could work against low-income students, but in this one we now are going to say that it is the Federal policy that you cannot discriminate because of sex. This dichotomy confuses me(:) on (the) one hand we grant latitude and autonomy while on the other limiting autonomy. When the bill was reported out of committee, the Supplemental Views subscribed to by several members noted that "(f)ederal dollars now constitute over 20% of the total budget of our higher education system. Most of these dollars flow to institutions through research contracts, student assistance programs, and categorical programs, related to specific national objectives." H.R. Rep. No. 92-554, supra, at 244 (emphasis added). Although H.R. 7248 was passed by the House in 1971 -- and the Senate passed S. 659, its own version of the higher education bill -- no legislation was agreed on in that session. /28/ c. The views of the House in 1970 and 1971 are of course not authoritative with respect to Congress's intentions when it later adopted Title IX. But they do offer valuable evidence of the House's ultimate concerns and objectives. There can be no doubt that one of the House's reasons for wanting to forbid sex discrimination in higher education was the belief that women were treated unfairly in the distribution of financial aid. It is also clear that the House saw federal student assistance programs as a form of aid to colleges themselves. Finally, it was contemplated that the receipt of federal student aid money would subject a school to the nondiscrimination requirements of the House bills. 2. Senate a. In 1971 Senator Pell introduced the Education Amendments of 1971 (S. 659, 92d Cong., 1st Sess.), which contained what he called "a radical approach to Federal aid to education, in that it provides, as a matter of right, a basic educational opportunity grant * * * to every student pursuing a postsecondary education at an institution of higher education." 117 Cong. Rec. 2008 (1971). S. 659 had numerous other objectives (see id. at 29339-29341), but what chiefly made the bill "landmark in nature" was "the unprecedented principle of an assured minimum level of support for every American who seeks a postsecondary education" (id. at 29342, 29344 (remarks of Sens. Pell, Prouty, and Proxmire)). Senator Bayh described the "Pell bill" as "the most far-reaching program of Federal aid to higher education ever debated in (the Senate)" (117 Cong. Rec. 30156 (1971)). /29/ It was this bill that Senator Bayh proposed to amend by adding what became Title IX. 117 Cong. Rec. 30155, 30403 (1971). When introducing his amendment, Senator Bayh stated (id. at 30403): Now we are attempting to establish access to higher education as a basic Federal right. By establishing a minimum level of scholarship assistance for each needy student who wishes to pursue postsecondary education, we hope to break forever the bonds that have tied generation upon generation to the ghettoes and economic backwaters of America. But as we seek to help those who have been the victims of economic discrimination, let us not forget those Americans who have been subject to other, more subtle but still pernicious forms of discrimination. * * * Today I am submitting an amendment to this bill which will guarantee that women, too, enjoy the educational opportunity every American deserves. Senator Bayh's proposed amendment did not contain a program-specific limitation; its primary focus (insofar as it affected students) was on "admission to * * * educational facilities" (ibid.). See 117 Cong. Rec. 30406 (1971) (remarks of Sen. Bayh); id. at 30407 (remarks of Sen. Dominick); id. at 30409 (remarks of Sen. Gurney); id. at 30410 (remarks of Sen. Bayh). In the event discrimination occurred in admissions programs, Senator Bayh suggested that his amendment would authorize termination of all assistance, including Pell grants (id. at 30408; emphasis added): Mr. DOMINICK: What type of aid the recipient might be getting would be cut off? * * * Mr. BAYH: We are cutting off all aid that comes through the Department of Health, Education, and Welfare * * * . /30/ Senator Bayh's explanation was confirmed by Senator McGovern, who said (117 Cong. Rec. 30158-30159 (1971); emphasis added): I urge the passage of this amendment to assure that no funds from S. 659 * * * be extended to any institution that practices biased admissions or educational policies. The Presiding Officer ruled that the amendment was not germane, and his ruling was sustained (id. at 30412, 30415). /31/ b. On February 28, 1972, Senator Bayh introduced an expanded version of his 1971 amendment (now designated Amendment No. 874 and proposed as an additional "Title X" to S. 659). /32/ Unlike Senator Bayh's 1971 proposal the 1972 version was clearly "program-specific" -- i.e., its prohibition reached only educational programs or activities receiving federal financial assistance, and it limited "termination of funds * * * to the particular entity and program in which * * * noncompliance has been found" (118 Cong. Rec. 3937, 5807 (1972) (remarks of Sen. Bayh)). The change was not, however, intended to narrow the concept of what constitutes "receipt" of federal aid, or to exempt schools whose students receive federal grants. /33/ Any other conclusion would be indeed surprising, since one of the primary purposes of Bayh's amendment was to eradicate discrimination in the provision of student financial aid. In announcing Amendment No. 874, Senator Bayh stated: "I have introduced * * * an amendment which would deal in a comprehensive way with sex discrimination in education -- in admissions, scholarship programs, faculty hiring, and the pay of professional women" (118 Cong. Rec. 3935 (1972); emphasis added). /34/ Senator Bayh elaborated on those concerns by introducing a prepared statement dealing with the three primary targets of his amendment: "A. DISCRIMINATION IN HIRING AND PROMOTION OF FACULTY AND ADMINISTRATORS"; "B. DISCRIMINATION IN SCHOLARSHIPS"; and "C. DISCRIMINATION IN ADMISSIONS" (id. at 3935-3940). Several days later Senator Bayh introduced, as "particularly relevant to my amendment No. 874," an article addressing at some length discrimination in the provision of financial aid (id. at 5654, 5656). It noted that (ibid.; footnotes omitted): (W)omen constitute about 43% of all students receiving national defense loans, 49% of students benefiting from the work-study college program, 40.2% of those receiving equal opportunity grants and 36.5% of those participating in the guaranteed loan program. Complaints of discrimination have centered upon financial assistance for graduate study. * * * In 1969 women represented 33% of the graduate student population; they received 28% of the awards given under the NDEA Title IV fellowship program for graduate students and 29.3% of graduate academic awards under NDEA Title VI. When Amendment No. 874 was called up for debate on February 28, 1972, Senator Bayh summarized it thus: "The amendment would cover such crucial aspects as admissions procedures, scholarships, and faculty employment, with limited exceptions. Enforcement powers include fund termination provisions" (118 Cong. Rec. 5803). He then addressed each of these problems at more length. Regarding "discrimination in scholarships" he said (id. at 5805): Although documentation of discrimination in scholarship aid is less conclusive than in other areas, a recent study by the Education Testing Service found that although men and women need equal amounts of financial aid in college, the average awards to men are $215 higher than to women. See also 118 Cong. Rec. 5807, 5808 (1972). He continued (id. at 5809): In the 35 most selective schools in the country * * * women comprise 29.3 percent of entering freshmen in 1970; although men and women need equal amounts of financial aid in college, the average awards to men are significantly higher than awards to equally qualified women. For example, the average single awards such as scholarships, loans, or jobs in an institution, to a man student in 1970 was $760, and to a woman student $518. If we look at the broader types of financial assistance -- various packaged awards, such as grants with jobs, or loans -- it shows that the average such packaged award in 1969-70 to the average man student was $1,465 and to the average women student it was $1,173. I do not think we have any evidence at all to support the contention that it costs less to clothe, house, feed, and educate a woman. Yet there is obvious discrimination when it comes to passing out the scholarship dollars. See also id. at 5810 (paper on The Status of Women); id. at 5813 (letter from The National Federation of Business and Professional Women's Clubs, Inc.). /35/ That the Senate viewed schools as "receiving Federal financial assistance" when their students got federal aid was explicitly recognized in debate on Senator Bentsen's perfecting amendment to Amendment No. 874. Senator Bentsen proposed that the admissions practices of traditionally single-sex public undergraduate schools be exempted from the nondiscrimination rule (118 Cong. Rec. 5814 (1972)). In explaining the need for his amendment, he pointed out that Texas Woman's University, which was forbidden by state law from admitting male students, received "over $250,000 in educational opportunity grants" and "$83,000 for college work-study programs" (ibid.). The effect of Amendment No. 874, he argued, would be to subject the University to Title IX coverage because of that assistance. Senator Bentsen's amendment was agreed to. 118 Cong. Rec. 5815 (1972). Senator Bayh's Amendment No. 874 was passed by the Senate on the same day it was introduced (118 Cong. Rec. 5815 (1972)). The House and Senate conferees, meeting on their differing versions of S. 659 (see note 28, supra), adopted "the substance of the Senate" BEOG program, which was "viewed as the foundation upon which all other Federal student assistance programs are based." S. Conf. Rep. No. 92-798, supra, at 167. Differences about the final form of Title IX related only to exceptions not relevant here. Id. at 221-222. c. The Senate's deliberations, like the House's, focused specifically on the problem of discrimination in college financial aid programs. The debates show a serious concern with colleges' handling of federal student aid ("national defense loans," "work-study," "equal opportunity grants," "NDEA Title IV," "NDEA Title VI" (118 Cong. Rec. 5656 (1972)). Senator Bayh's explanations of his own amendment also address a broader problem -- not the handling of identifiable federal dollars, but the administration of college financial aid programs generally. He repeatedly stated that one of the purposes of Title IX was to "cover() discrimination in * * * scholarship aid" (id. at 5807). It seems clear that the Senate intended Title IX to regulate recipient schools insofar as they administered federal student aid dollars. But as the discussion of Senator Bentsen's amendment illustrates, Title IX was intended to do more. It was to govern recipient institutions not just with respect to the disbursement of specifically identifiable federal monies, but also with respect to the other activities of the relevant educational "program or activity." The federal government was to end the practice of subsidizing the discrimination practiced by the entire program or activity. The final -- and compelling -- point about the legislative history of Title IX is architectural rather than linguistic. Title IX was an amendment to a bill whose most important feature was the creation of BEOGs. The sponsor of Title IX stated that his amendment "relate(d) directly to the central purpose of the bill" (117 Cong. Rec. 30412 (1971)). Given that direct connection, it defies belief that Congress meant to permit discrimination to exist in the financial aid programs of schools whose students are subsidized by BEOG grants. C. Subsequent Legislative Action Confirms Congress's Intent That Title IX Should Apply To Colleges Whose Students Receive BEOGs "Although postenactment developments cannot be accorded 'the weight of contemporary legislative history'" (North Haven, supra, 456 U.S. at 535), certain "subsequent events * * * lend credence to the (Department's) interpretation" of the phrase "'program or activity receiving Federal financial assistance'" (456 U.S. at 537). Congress reviewed the regulations extending Title IX coverage to colleges like Grove City, and chose to leave them undisturbed. Congress also considered and rejected legislation specifically designed to exempt schools receiving only federal student assistance. Finally, Congress has repeatedly reenacted the BEOG statute with full awareness that such aid triggers Title IX coverage. 1. Pursuant to the direction of Section 902 (20 U.S.C. 1682) HEW promulgated sex discrimination regulations. The regulations provided, in terms identical to those now in effect, that "Federal financial assistance" includes "(a) grant or loan of Federal financial assistance, including funds made available for * * * (s)cholarships, loans, (and) grants * * * extended directly to * * * students for payment to" a college. 40 Fed. Reg. 24137 (1975); cf. 34 C.F.R. 106.2(g)(1). They also stated that the term "Recipient" includes "any public or private * * * institution * * * to whom Federal financial assistance is extended directly or through another recipient and which operates an education program or activity which receives or benefits from such assistance * * * ." 40 Fed. Reg. 24137 (1975); cf. 34 C.F.R. 106.2(h). As required by Section 902, the regulations were submitted to President Ford for his approval. They were then transmitted to the Speaker of the House and the President of the Senate, pursuant to Section 431(d)(1) of the General Education Provisions Act, 20 U.S.C. (1970 ed. Supp. IV) 1232(d)(1). /36/ Under Section 431(d) the regulations would become effective 45 days after transmittal unless Congress, by concurrent resolution, found that they were inconsistent with the authorizing statute and disapproved them. The House held six days of hearings during which HEW Secretary Weinberger specifically addressed the Department's conclusion that the term "Federal financial assistance" covered federal aid to students. 1975 Hearings, supra, at 481-484. /37/ In response to a question by Representative Quie, Secretary Weinberger said (id. at 484): Our view was that student assistance, assistance that the Government furnishes, that goes directly or indirectly to an institution is Government aid within the meaning of title IX. If it is not, there is an easy remedy. Simply tell us it is not. We believe it is and base our assumption on that. As Mr. Rhinelander (the HEW General Counsel) says, the court case confirms this belief. /38/ Senator Bayh was asked during the hearings whether the Department had "overstepped its bounds in claiming that an institution is conducting a program or activity financed by the Federal Government if a student is receiving Federal aid to attend that program" (1975 Hearings, supra, at 182). He answered that he did not know, and would have to look into the question (ibid.). /39/ He did point out that the student could "take that scholarship and go anyplace (he) want(ed) to" (id. at 181). When asked the same question, Secretary Weinberger stated that "the Federal financial assistance to that institution might well be cut off. * * * I don't think you would take the assistance away from the student who was denied admission(;) * * * you would let him take it and use it somewhere where there was not a violation" (id. at 482; emphasis added). Resolutions were introduced in both House of Congress to disapprove the regulations in their entirety. S. Con. Res. 46, 94th Cong., 1st Sess. (1975), see 121 Cong. Rec. 17300 (1975); H.R. Con. Res. 310, 94th Cong., 1st Sess. (1975), see 121 Cong. Rec. 19209 (1975). Neither was passed. /40/ 2. In 1976 Congress rejected legislation specifically aimed at exempting schools receiving student aid from Title IX controls. Senator McClure introduced an amendment to Section 901 providing that, for purposes of Title IX, "federal financial assistance received means assistance received by the institution directly from the federal government." 122 Cong. Rec. 28144 (1976). By way of justification for his amendment, Senator McClure noted (id. at 28145) that Hillsdale College had been subjected to Title IX because some of its students received Federal assistance. /41/ Both Senator Bayh and Senator Pell opposed the amendment. Senator Pell noted that (122 Cong. Rec. 28145 (1976)): (w)hile these dollars are paid to students they flow through and ultimately go to institutions of higher education, and I do not believe we should take the position that these Federal funds can be used for further discrimination based on sex. Senator Bayh argued that the Department had properly interpreted the statute when it promulgated the regulations in 1975, and that a reversal of its interpretation would thwart the purposes of Title IX. He stated (122 Cong. Rec. 28145-18146 (1976)): The House committee studied this (Departmental) interpretation. I emphasized at that time that title IX, which dealt with discrimination so far as women are concerned, is parallel in its language and enforcement expectations with title VI of the Civil Rights Act. The courts have held that title VI * * * does apply if a student receives Federal aid. /42/ If a student is benefited, the school is benefited. It is not new law; it is traditional, and I think in this instance it is a pretty fundamental tradition, that we treat all institutions alike as far as requiring them to meet a standard of educational opportunity equal for all of their students. The amendment was rejected. 3. The statutory authorization for BEOGs, first enacted together with Title IX in 1972, has since been renewed, with amendments but in the same basic form in 1976, 1978, and 1980. Pub. L. No. 94-482, Section 121(a), 90 Stat. 2091; Pub. L. No. 95-566, Section 2, 92 Stat. 2402; Pub. L. No. 96-374, Section 402(a), 94 Stat. 1401. The history of the reenactments make clear both Congress's and the university community's understanding that BEOGs (and similar student aid programs) are a critical source of institutional support. /43/ Indeed, Representative Ford called them "the primary means through which Federal support is provided to institutions of post-secondary education." Reauthorization of the Higher Education Act and Related Measures: Hearings Before the Subcomm. on Postsecondary Education of the House Comm. on Education and Labor, 96th Cong., 1st Sess., Pt. 3, 400 (1979); see id. at Pt. 4, 2. Congress has been aware that the Department considered such aid to trigger Title IX coverage of recipient institutions. In 1975 it reviewed and declined to disapprove the Department's regulations directing that result. The Department's Title VI regulations were also amended in 1973 to include, in their Appendix, the provision that student receipt of BEOGs subjected institutions to Title VI coverage. See 34 C.F.R. Part 100 app. A. And although there is no comparable Title IX appendix of covered programs, the Commissioner of Education reiterated before a House subcommittee in 1978 that student receipt of federal education grants led to both Title VI and Title IX coverage. Middle Income Student Assistance Act: Hearings on H.R. 10854 Before the Subcomm. on Postsecondary Education of the House Comm. on Education and Labor, 95th Cong., 2d Sess. 222-223 (1978). This consistent post-enactment history underscores what is already clear from the language and history of Title IX. As this Court stated in North Haven, supra, 456 U.S. at 535: Where "an agency's statutory construction has been 'fully brought to the attention of the public and the Congress,' and the latter has not sought to alter that interpretation although it has amended the statute in other respects, then presumably the legislative intent has been correctly discerned." D. The Legislative History Of Title VI Supports The Conclusion That Colleges "Receiv(e) Federal Financial Assistance" When The Federal Government Pays For The Education Of Their Students Petitioners argue (Br. 28-83) that the legislative history of Title VI of the Civil Rights Act of 1964, 42 U.S.C. 2000d et seq. -- on which Title IX was in large part based (see Cannon v. University of Chicago, 441 U.S. 677, 696 (1979)) -- also demonstrates a congressional intent to exempt from nondiscrimination laws assistance paid directly to student beneficiaries. In fact, the history of Title VI shows that Congress intended that title to reach schools whose students receive direct federal aid for their education. Title VI expresses the national policy that "discrimination on the ground of race * * * shall not occur in connection with programs and activities receiving Federal financial assistance" (H.R. Rep. No. 914, 88th Cong., 1st Sess. 25 (1963)). As is true in the case of Title IX, Congress did not expressly define the phrase "receiving Federal financial assistance." /44/ The legislative history nonetheless shows that Congress recognized its application to colleges like Grove City. The application of Title VI to a vast array of programs, including many in the field of education, was noted in both the legislative hearings and floor debates. Appearing before a House subcommittee, HEW Secretary Celebrezze provided a list of HEW programs that would be covered by Title VI. Civil Rights: Hearings Before Subcomm. No. 5 of the House Comm. on the Judiciary, 88th Cong., 1st Sess. 1537-1538 (1963) ("1963 Hearings"). The list included "Loans to college students" and "National defense fellowships." Secretary Celebrezze also stated that Title VI would authorize HEW to withhold NDEA scholarships from students who attended segregated universities (id. at 1541). /45/ In the Senate, both opponents and supporters of the bill approved by the House indicated that Title VI would apply to schools whose students received direct federal education payments. Senator McClellan, describing programs that would be subject to Title VI, noted that the National Defense Education Act authorized "direct loans to college students and private schools, fellowships for graduate students and grants and contracts with private institutions" (110 Cong. Rec. 13388 (1964)). And in response to a question by Senator Gore about why religious discrimination was not forbidden, Senator Ervin noted that under the National Defense Education Act, Congress made grants to individuals for tuition at religious schools (id. at 9088). Senator Ervin clearly envisioned that such grants would subject religious schools to Title VI coverage. Many congressmen referred in floor debates to lists (prepared by the Library of Congress and the Department of Justice) of the kinds of federal aid affected by Title VI. /46/ Some involved the payment of government funds to the student's institution. Other listed programs, however, involved or had statutory authority for direct payments to students. E.g., National Defense Fellowships (20 U.S.C. (1958 ed. & Supp. V 1959-1963) 461-465), Foreign Language Fellowships (20 U.S.C. 1958 ed.) 511(b)), Public Health Traineeships (42 U.S.C. (1958 ed. & Supp. V 1959-1963) 242d), and National Science Foundation Fellowships (42 U.S.C. (1958 ed. & Supp. V 1959-1963) 1869). The various comments collected by petitioners about Title VI's application to individual beneficiaries do not support the conclusion that Grove City is not a recipient of federal assistance. Remarks by Senator Humphrey (110 Cong. Rec. 6545 (1964)) and a letter from Attorney General Kennedy (id. at 10075-10076) suggest that people collecting social security and farmers getting direct federal aid would not be subject to Title VI. Obviously Title VI was not designed to authorize cutting off funds to these individual recipients if they engaged in racial discrimination. /47/ Similarly, a letter from Deputy Attorney General Katzenbach states that an individual who receives direct federal payments such as social security would not be a "program or activity" under Title VI. 1963 Hearings, supra, at 2773. But these comments are 1963 Hearings, supra, at 2773. But these comments are not relevant to the issue whether Grove City receives federal financial assistance by virtue of the award of BEOGs to its students. The types of aid referred to in Katzenbach's letter and by Senator Ribicoff on the Senate floor (110 Cong. Rec. 8424 (1964)) involved unrestricted payments from the government to individuals. They are altogether different from BEOGs, which are conditioned on a student's enrollment and continuing study in the educational institution that certifies eligibility for the grants. /48/ II. THE DEPARTMENT MAY PROPERLY TERMINATE ASSISTANCE TO GROVE CITY BECAUSE IT REFUSED TO EXECUTE AN ASSURANCE OF COMPLIANCE WITH TITLE IX Petitioners argue that even if Grove City does receive federal financial assistance and is subject to the requirements of Title IX, the court of appeals erred in upholding termination of student grants when the College refused to execute an Assurance of Compliance. They claim (Br. 38-42) that the Department's Form 639 by its terms is inconsistent with the program-specific limitation of Title IX. They also argue (Br. 42-47) that student assistance cannot be terminated absent proof of actual discrimination. Both of these contentions are without merit. A. The Department's Assurance Requirement Is Consistent With The Program-Specific Limitation Of Title IX As was true of the employment discrimination regulations upheld in North Haven, /49/ the Assurance of Compliance form (see note 3, supra) and the Department's assurance regulation are consistent with the program-specific limitation on Title IX coverage. Form 639 itself simply requires an applicant for assistance to state that it will "(c) omply, to the extent applicable to it, with Title IX * * * and all applicable requirements imposed by * * * regulation" (Pet. App. A126; emphasis added). The explanation accompanying the form declares "that each education program or activity operated by the applicant * * * to which Title IX * * * (and the regulations) apply (must) be operated in compliance with (the regulations)" (Pet. App. A130; emphasis added). The regulations require an assurance "that each education program or activity operated by the applicant or recipient and to which this part applies will be operated in compliance with this part" (34 C.F.R. 106.4(a); emphasis added). The phrase "this part" refers to the Title IX regulations in their entirety, which are restricted in their application to "each education program or activity operated by (a) recipient which receives or benefits from federal financial assistance" (34 C.F.R. 106.11). Subpart D of the Title IX regulations (34 C.F.R. 106.31-106.42), which "sets forth the general rules with respect to prohibited discrimination in educational programs and activities" (40 Fed. Reg. 24128 (1975)), deals separately with various programs operated by institutions of higher education: "Housing" (34 C.F.R. 106.32), "Access to course offerings" (34 C.F.R. 106.34), "Financial assistance" (34 C.F.R. 106.37; emphasis added), "Athletics" (34 C.F.R. 106.41), and so on. It includes no indication that schools subject to the directives of Section 106.37 ("Financial assistance") are thereby covered by all other provisions in the regulations. As Judge Becker noted in his concurring opinion in the court of appeals: "(T)he Assurance of Compliance is program-specific, for it applies only to an 'education program or activity for which the Applicant receives or benefits from Federal financial assistance'" (Pet. App. A42; emphasis in original). It is true, as petitioners point out (Br. 39-40 & n.40), that HEW Secretary Weinberger at the 1975 Hearings gave a more expansive view of the scope of the Title IX regulations than is now justified in light of this Court's decision in North Haven. See 1975 Hearings, supra, at 438, 485. But in North Haven this Court specifically referred to Weinberger's testimony and noted that the Department's views with respect to program specificity had "fluctuated" (456 U.S. at 539 n.29); it nonetheless found the regulations consistent with Title IX's program-specific character. Since that decision the Department has adhered to the Court's recommended reading of the regulations, which is entirely consistent with their explicit terms. /50/ We see no reason to reconstruct for the assurance requirement an interpretation rejected by this Court and the Department, and out of step with the language of the statute. B. Title IX Authorizes Termination Of Federal Assistance When A Recipient Refuses To Execute An Assurance Of Compliance 1. The Department of Education furnishes financial assistance to thousands of educational institutions. The passage of Title IX, like the earlier enactment of Title VI and the later adoption of Section 504 of the Rehabilitation Act of 1973 (29 U.S.C. (Supp. V) 794), imposed on the Department an obligation to ensure that federal assistance not be granted to recipients who engage in unlawful discrimination. Section 902 of Title IX directs the Department (20 U.S.C. 1682): to effectuate the provisions of section (901) * * * by issuing rules, regulations, or orders of general applicability which shall be consistent with achievement of the objectives of the statute authorizing the financial assistance * * * . Compliance with any requirement adopted pursuant to this section may be effected (1) by the termination of * * * 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 * * * or (2) by any other means authorized by law * * * . The Department -- like other federal agencies with large grant programs /51/ -- has adopted regulations requiring recipients to assure compliance with the nondiscrimination statutes and their implementing regulations. The good faith representations provided by the Assurance of Compliance are intended to substitute, as a threshold matter, for departmental inspections and other more intrusive methods of enforcement. As HEW Secretary Weinberger testified, when Congress reviewed the Department's regulations in 1975 (1975 Hearings, supra, at 464-465): We chose (an approach) that requires the universities and colleges, first of all, to examine the law and the regulation and, second, to see if they are in compliance and keep the data to help in enforcement and help them answer charges or complaints that may be made by individuals and, third, to set up some kind of internal grievance procedure of their own so we can minimize the Federal enforcement effort and get the best kind of enforcement, which is voluntary compliance. * * * * * (W)e believed voluntary enforcement and provisions that * * * direct the colleges to get enforcement of this kind o(n) their own are preferable to setting up a large Government police force to go in and gather its own data and do its own rather rigid enforcement. 2. Petitioners' contention that the Department may terminate assistance only after a finding of actual discrimination has no basis in the language of Section 902, which authorizes termination to effect "(c)ompliance with any requirement adopted pursuant to this section" (emphasis added). It would, moreover, completely frustrate the regulations' emphasis on voluntary compliance. Recipient institutions could simply ignore the demands of the statute and gamble that the inadequacy of enforcement resources would insulate them from sanctions. They could fail to establish the grievance procedure required by 34 C.F.R. 106.8. They could also -- without fear of termination -- withhold from the Department the information necessary for it to establish a violation. /52/ It is true (see Pet. Br. 42-43, 47) that termination of assistance should be a remedy of last resort. It is also important that recipients be afforded procedural safeguards, such as the public hearing provided by Section 902, before termination is effected (see Pet. App. Br. 45). But the Department in this case attempted to secure voluntary compliance with the assurance regulation of five different occasions (Tr. 33) before initiating enforcement proceedings. A hearing was then held, and an express finding made on the record that Grove City had failed to comply with the regulation. At the hearing Grove City had the opportunity to contest its coverage under Title IX, and it is now exercising its right to appeal the adverse determination of that issue. It cannot seriously be argued that the hearing process here was a "meaningless formality" (Pet. Br. 45). /53/ Petitioners rely heavily on the legislative history of Title VI for their contention that termination is improper absent a showing of actual discrimination. They point (Pet. Br. 43-46) to statements by proponents of that title designed to allay fears about the harshness of the termination remedy. See, e.g., 110 Cong. Rec. 6749 (1964) (remarks of Sen. Humphrey). But those statements, made before any agency rulemaking was undertaken, prove little. Their focus on the most obvious of the rulemaking powers granted by Title VI -- the power to adopt substantive nondiscrimination requirements -- implies no intention to deny agencies the usual authority to prescribe regulations necessary to carry out their enforcement functions. Petitioners' discussion of Title VI omits to mention that identical regulations under the law were upheld several years before Title IX was adopted. Like Section 902 of Title IX, Section 602 of Title VI (42 U.S.C. 2000d-1) authorizes each agency administering federal financial assistance to promulgate implementing regulations and to effect "(c) ompliance" with any such "requirement" by termination of assistance. The Title VI counterpart of 34 C.F.R. 106.4 was promulgated the same year Title VI was enacted. 45 C.F.R. 80.4 (1964). In Gardner v. Alabama, 385 F.2d 804 (5th Cir. 1967), cert. denied, 389 U.S. 1046 (1968), HEW terminated five separate federal assistance programs when Alabama refused to execute the required assurance. The court of appeals found the "procedure of submitting an assurance form to be particularly appropriate" as a monitoring and enforcement mechanism, and "clearly * * * within * * * (the) rule-making power conferred * * * by statute" (id. at 817 & n.8). Accordingly it concluded that "(s)ince Alabama is presently in a state of noncompliance with this regulation, the validity of the order * * * terminating funds * * * must be upheld" (id. at 817.). /54/ In any event, the issue in this case is not whether the 1964 Congress envisioned the adoption of an assurance-of-compliance regulation under Title VI. It is whether the 1972 Congress -- acting after the Title VI regulation had been in effect for eight years and approved in Gardner -- authorized a similar provision under Title IX. Petitioners point to no evidence in Title IX's legislative history suggesting the contrary. And Senator Bayh's introductory remarks emphasize that Congress understood the effect of its action. He stated (118 Cong. Rec. 5807 (1972)): Under this amendment, each Federal agency which extends Federal financial assistance is empowered to issue implementing rules and regulations effective after approval of the President. * * * Failure to comply with the regulations may result in the termination of funding. * * * * * The provisions have been tested under title VI of the 1964 Civil Rights Act for the last 8 years so that we have evidence of their effectiveness and flexibility. III. THE APPLICATION OF TITLE IX TO THE COLLEGE DOES NOT INFRINGE THE FIRST AMENDMENT RIGHTS OF THE COLLEGE OR ITS STUDENTS Petitioners argue (Br. 47-50) that conditioning federal funding on compliance with Title IX's prohibition against sex discrimination infringes First Amendment rights of the College and its students to academic freedom and freedom of association. /55/ This Court has recongized some limits on state regulation of wholly privately funded institutions; /56/ but it is well established that the government may attach reasonable conditions to grants of federal financial assistance that educational institutions are free to refuse. Pennhurst State School & Hospital v. Halderman, 451 U.S. 1, 17 (1981); Ivanhoe Irrigation District v. McCracken, 357 U.S. 275, 295 (1958); Oklahoma v. Civil Service Commission, 330 U.S. 127, 143 (1947); see Regan v. Taxation With Representation, No. 81-2338 (May 23, 1983). /57/ As the Court pointed out in Norwood v. Harrison, 413 U.S. 455, 462 (1973), "(I)t is one thing to say that a State may not prohibit the maintenance of private schools and quite another to say that such schools must * * * receive state aid." The College has every right to return to its former policy of abstinence, decline to certify BEOG, applications for students, and thereby refrain from supplementing its financial aid budget with federal grants; there is therefore no need to consider whether an outright ban on sex discrimination would be an unconstitutional interference by the federal government with the College's right to academic freedom. Cf. Runyon v. McCrary, 427 U.S. 160, 175-179 (1976); Norwood v. Harrison, supra, 413 U.S. at 461-463. /58/ Similarly, students are free to take their federal grants to a school that complies with Title IX or, by refusing federal assistance in financing their education, to attend Grove City College. /59/ Thus, the First Amendment rights of the College and its students have in no way been infringed. CONCLUSION The judgment of the court of appeals should be affirmed. Respectfully submitted. REX E. LEE Solicitor General WM. BRADFORD REYNOLDS Assistant Attorney General PAUL M. BATOR Deputy Solicitor General CHARLES J. COOPER Deputy Assistant Attorney General JOHN H. GARVEY Assistant to the Solicitor General BRIAN K. LANDSBERG Attorney AUGUST 1983 /1/ The Title IX regulations which appear in the petitioners' appendix are those promulgated by the Department of Health, Education and Welfare in 1975. They were recodified, without substantive change, at 34 C.F.R. Part 106 on May 9, 1980 in connection with the establishment of the Department of Education. Despite occasional anachronisms, we will refer throughout to the currently effective regulations and statutory provisions. /2/ HEW's functions under Title IX with respect to BEOGs and GSLs were transferred to the Department of Education by Section 301(a)(3) of the Department of Education Organization Act, Pub. L. No. 96-88, 93 Stat. 677, 678. We will refer to both HEW and the Department of Education as "the Department." /3/ The Assurance of Compliance (HEW Form 639) that Grove City was asked to execute is reproduced at Pet. App. A124-A129. The current form, adopted by the Department of Education in 1980, is reproduced as an appendix to the government's brief filed in response to the petition in Hillsdale College v. Department of Education, No. 82-1538. /4/ The Higher Education Act of 1965 (Pub. L. No. 89-329, 79 Stat. 1232-1236) had provided Educational Opportunity Grants (20 U.S.C. (Supp. II 1965-1966) 1061-1069), the forerunner of the Supplemental Educational Opportunity Grant ("SEOG") program enacted in 1972 (20 U.S.C. (& Supp. V) 1070b et seq.). Both are campus-based programs in which the institution applies for funds from which it makes grants to eligible students. Grove City College does not participate in the SEOG program. /5/ The 1980 amendments to the statute raised the ceilings, over a period of several years, to $2600 for the 1985-1986 award year. 20 U.S.C. (Supp. V) 1070a(2)(A)(i). /6/ Insofar as it applies to BEOGs, 20 U.S.C. (Supp. V) 1089(d) has been superseded by a series of statutes that in effect leave the definition of the term to the Secretary. Pub. L. No. 97-301, Section 3, 96 Stat. 1400; Pub. L. No. 97-161, 96 Stat. 22; Pub. L. No. 97-92, Section 124(2), 95 Stat. 1197; see 34 C.F.R. 690.51-690.58. /7/ The statute assumes that schools will be involved in the computation and administration of grants. See, e.g., 20 U.S.C. (Supp. V) 1094, 1096. /8/ Although Grove City refused to execute an Assurance of Compliance with Title IX, it did execute an "'Agreement Regarding Institutional Participation in the Guaranteed Student Loan Program,'" pledging that "it would maintain records and establish policies consistent with maintaining the integrity of federally guaranteed student loans" (J.A. A23). /9/ There was no issue, and hence no evidence, concerning actual discrimination by the College. See Administrative Transcript ("Tr.") 11-12. /10/ A student applying for a BEOG must submit an affidavit, with the concurrence of the certifying educational institution, that the grant "will be used solely for expenses related to attendance" at the institution (Tr. 57-58, 150). A College official thus certified "the tuition, room, and board costs charged to" two of the student petitioners (Marianne Sickafuse and Kenneth Hockenberry) (J.A. A61, A64). /11/ Marianne Sickafuse used her BEOG "to pay various educational expenses, including money (she) borrowed to pay tuition at the semester(')s beginning" (J.A. A62). /12/ The College was joined by four student BEOG and GSL recipients. Since GSLs are no longer at issue (see note 14, infra), it would appear that Jenifer Smith and Victor Vouga, who received only GSLs, have no further interest in the case. The record does not reflect whether Marianne Sickafuse and Kenneth Hockenberry are still enrolled at the College. We are informed by the Department of Education that they no longer receive BEOGs. /13/ This Court later upheld the validity of Subpart E. North Haven Board of Education v. Bell, 456 U.S. 512 (1982). /14/ The Department did not appeal from the district court's determination (Pet. App. A75-A76) that GSLs -- as "contract(s) of insurance or guaranty" -- are excluded from Title IX coverage by Section 902, 20 U.S.C. 1682. /15/ It is possible, as petitioners and several amici demonstrate, to conjure up meanings of the phrase "receives or benefits" that are inconsistent with Title IX. But it is frivolous to argue that "the landlord" and "the neighborhood tavern" are covered by Title IX because they may benefit from BEOG funds (Pet. Br. 32); or that "a college is a recipient of federal financial assistance if it enrolls students who receive food stamps" (MSLF and AAPICU Br. 10). Neither the landlord nor the neighborhood tavern "operates an education program or activity" (34 C.F.R. 106.2(h)). Nor can food stamps, unlike BEOGs, be considered "Federal financial assistance * * * extended directly or through another recipient" to some "education program or activity" (ibid.; emphasis added). The very purpose of BEOGs, unlike food stamps, is to pay the cost of students' education. /16/ In the case of other forms of federal student aid disbursed by the school, the money may be simply credited to the students' account with the institution. See, e.g., 34 C.F.R. 674.16(f)(2) (National Direct Student Loans); 34 C.F.R. 676.16(c)(2) (Supplemental Educational Opportunity Grants); 34 C.F.R. 690.78(a) (BEOG -- Regular Disbursement System). The 1981 regulations cited by petitioners (Br. 5 n.9), which broadened the allowable costs of attendance, have been revoked. 46 Fed. Reg. 37862 (1981). /17/ Petitioners state at one point (Br. 21) that "students' use of their grant funds at educational institutions are payments for services rendered rather than assistance" -- as if this distinguished BEOGs from other federal funds received by a college. But petitioners' proposal is really only another way of saying that Congress expected a certain kind of return on the federal investment in education, and that characterization aptly describes any kind of federal "assistance." When a school receives federal money for "chemistry research" (Pet. Br. 20), Congress wants the school's chemistry faculty to devote time and effort to chemistry research. When Congress gives money to the states for vocational education, and the states pass it on to counties, cities, or school districts, Congress intends that the ultimate recipients will "develop and carry out * * * programs of vocational education * * * ." 20 U.S.C. 2301(3); cf. 110 Cong. Rec. 13126-13128, 13130 (1964) (remarks of Sen. Ribicoff); id. at 13418 (remarks of Sen. Keating) (local government subrecipients of financial aid to education are subject to Title VI). The issue is no different when Congress supplements a college's financial aid program with BEOG money that flows back to the school: Congress's purpose is that the money be used for the education of the student beneficiaries. /18/ The government's brief in the court of appeals, filed shortly before this Court's decision in North Haven, supra, argued that the Title IX "regulations are program specific. * * * (T)he regulation implicitly provides that the mere receipt of some federal assistance by an educational institution does not necessarily subject all of its practices to the prohibitions of Section 901 of Title IX and the implementing regulations. Questions may arise in particular cases concerning how to define 'program or activity' with respect to particular practices * * * . However, those issues are not present here." Brief for the Appellees-Cross-Appellants at 30 (emphasis in original). /19/ Coverage is instead limited by the "program or activity" rule, which confines coverage to the assisted portion of the school's operations. /20/ The court of appeals suggested (Pet. App. A32 n.28) that that draconian conclusion might be avoided if schools were to adopt "financial Chinese wall(s)" to channel the flow of federal monies within their operations. We think it unlikely, however, that if Congress had intended institution-wide coverage, it would have countenanced evasion of that obligation by the simple expedient of a change in accounting systems. /21/ In addition to BEOG funds under RDS, this is true for the following types of asssistance: Supplemental Educational Opportunity Grants, 20 U.S.C. (& Supp. V) 1070b, 1070b-2(b); National Direct Student Loans, 20 U.S.C. (Supp. V) 1087aa, 1087cc(a); Fellowships for Graduate and Professional Study, 20 U.S.C. (Supp. V) 1134d, 1134f; and College Work Study Programs, 42 U.S.C. (Supp. V) 2751, 2753. /22/ Moreover, the fact that there are limited opportunities to discriminate in handling BEOGs under ADS is simply a consequence of the regulations now in effect. As we noted above (note 7), Congress assumed that colleges would be involved in the administration of BEOGs, and left the details of that involvement up to the Department. /23/ For this reason, petitioners read the phrase "program or activity" too narrowly when they argue (Br. 20) that "the concept of a recipient program or activity under Title IX must be co-extensive with the scope of the underlying grant statute." In fact, the language of the statute unmistakeably refers in Section 901 to the relevant "program or activity" at the school. Thus it speaks of "any education program or activity receiving Federal financial assistance" (20 U.S.C. 1681(a); emphasis added); of "any program or activity of any secondary school or educational institution" (20 U.S.C. 1681(a)(7)(B); emphasis added (cf. id. section 1681(a)(7)(A) ("(a)ny program or activity of the American Legion") (emphasis added)); and of "any federally supported program or activity" (20 U.S.C. 1681(b); emphasis added). This point also sheds light on why the court of appeals erred in reading the "program or activity" language too broadly. The court argued that North Haven, supra, "implicitly adopt(ed) an institutional approach to the concept of program" (Pet. App. A25; footnote omitted). The Third Circuit relied, for that conclusion, on a footnote in Justice Powell's dissent criticizing the majority for extending coverage beyond "employees who directly participate in a federal program, i.e., teachers who receive federal grants" (456 U.S. at 542 n.3). As the text above makes clear, however, coverage of such employees by no means entails "an institutional approach to the concept of program * * * ." If the federal government subsidizes the chemistry program by paying for the construction of a chemistry building, the recipient school may not discriminate against female chemistry teachers even if their salaries are all paid out of the school's own funds. It is, on the other hand, equally inconsistent with Title IX's "program or activity" language to say that the federal grant for the chemistry building makes the entire college a covered "program." /24/ Title IX applies generally to the admissions policies of professional and graduate schools, and public undergraduate schools. 20 U.S.C. 1681(a)(1); see also 20 U.S.C. 1681(a)(2) and (5); Mississippi University for Women v. Hogan, No. 81-406 (July 1, 1982). Grove City College's admissions policies would thus be exempt. /25/ See Rice v. President & Fellows of Harvard College, 663 F.2d 336, 339 n.2 (1st Cir. 1981), cert. denied, 456 U.S. 928 (1982) ("One who is discriminated against in seeking admission is denied access to all educational programs and activities within an institution, and the entire body of programs within the school is tainted."); Board of Public Instruction v. Finch, 414 F.2d 1068, 1078 (5th Cir. 1969) (Title VI) ("If the funds provided by the grant are administered in a discriminatory manner, or if they support a program which is infected by a discriminatory environment, then termination of such funds is proper."); Othen v. Ann Arbor School Board, 507 F. Supp. 1376, 1387-1388 (E.D. Mich. 1981); Bob Jones University v. Johnson, supra (Title VI). Some courts have extrapolated from this principle of an admissions-veto the more general theory that discrimination in one program or activity can "infect" other programs -- including federal student aid programs. Iron Arrow Honor Society v. Heckler, 702 F.2d 549 (5th Cir. 1983), petition for cert. pending, No. 83-118. That is, of course, not a matter that the Court need reach in this case. /26/ Representative Griffiths cited figures on federal financial assistance from a report by the National Science Foundation, Federal Support to Universities and Colleges, Fiscal Year 1968, No. NSF 69-32 (Sept. 1969). /27/ See, e.g., 1970 Hearings, supra, Pt. 1, at 31 (Statement of Jean G. Ross); id. at 185, 187 (Fabian Linden, Women in the Labor Force); id. at 217-218, 231 (Ann Scott, The Half-Eaten Apple); id. at 301, 306 (statement of Bernice Sandler); id. at 313-314 (letter from Nancy Dowding to George Schultz); 1970 Hearings, supra, Pt. 2, at 645-656 (testimony of Peter Muirhead); id. at 801-804 (Women in the University of Chicago, Report of the Committee on University Women). /28/ H.R. 7248 was amended in several respects, passed by the House (117 Cong. Rec. 39354, 39374 (1971)), and laid on the table when S. 659, amended by substitution of the House language, was passed in lieu. 117 Cong. Rec. 39374 (1971). This bill was sent back to the Senate, referred to its Committee on Labor and Public Welfare, and reported back to the Senate with recommendations for further amendments. S. Rep. No. 92-604, 92d Cong., 2d Sess. 1-2 (1972). /29/ In the Education Amendments of 1980, Congress redesignated the "basic educational opportunity grants" as "Pell grants." 20 U.S.C. (Supp. V) 1070a(a)(1)(C). /30/ Petitioners quote this same exchange in support of their claim that student aid was not considered to be "Federal financial assistance (Br. 24-25). It is true that Senator Bayh went on to say that "this would not be directed at specific assistance that was being received by individual students, but would be directed at the institution" (117 Cong. Rec. 30408 (1971)). But it seems clear from the context that Senator Bayh meant simply that the student would be free -- as he is fee today -- to receive federal financial assistance in order to attend another university, even if the institution to which he first applied was denied the benefit of such funds because it discriminated. See pages 33-34, infra. /31/ Senator Bayh, appealing the Chair's ruling, said (117 Cong. Rec. 30412 (1971)): This amendment relates directly to the central purpose of the bill being debated. The bill deals with equal access to education. Such access should not be denied because of poverty or sex. * * * * * /32/ The Senate Committee on Labor and Public Welfare, after considering the House's amendments to S. 659 (see note 28, supra), reported the bill out on February 7, 1972 with recommendations for further amendments. S. Rep. No. 92-604, 92d Cong., 2d Sess. (1972). As reported out of committee, S. 659 was entitled "The Education Amendments of 1972." /33/ Senator Bayh's 1972 amendment took the same view of "receiving Federal financial assistance" as his 1971 amendment. Schools whose students' education is paid for with BEOGs are still considered recipients. On the other hand, the scope of coverage of recipient schools was significantly altered by the new "program or activity" limitation. The 1972 amendment provided, in terms identical to the language ultimately enacted, that "termination * * * shall be limited to the particular political entity, or part thereof, or other 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" (118 Cong. Rec. 3938 (1972)). As Senator Bayh stated (id. at 5807), "(M)y amendment * * * would prohibit discrimination on the basis of sex in federally funded education programs. * * * The effect of termination of funds is limited to the particular entity and program in which such noncompliance has been found * * * ." See North Haven, supra, 456 U.S. at 537-538. This conscious change to a rule of program specificity would have been nothing more than a formal exercise if one adopted the court of appeals' conclusion that "the 'program' here must be defined as the entire institution of Grove City College" (Pet. App. A31). The prevalence of BEOGs (created by the very Act to which Title IX was appended) and other forms of federal student aid means that there are few -- if any -- cases involving higher education to which the "program or activity" limitation could apply if unearmarked student financial aid triggered institution-wide coverage. /34/ Senator McGovern had noted the same issues several weeks earlier (118 Cong. Rec. 274 (1972)). /35/ See also National Commission on the Financing of Postsecondary Education, Financing Postsecondary Education in the United States 148 (Dec. 1973). /36/ This section was made applicable to Title IX regulations by Section 431(f) of the same statute. 20 U.S.C. (1970 ed. & Supp. IV 1974) 1232(f). /37/ Representative O'Hara, chairman of the subcommittee, stated (1975 Hearings, supra, at 412): I always used to think, until I became chairman of this subcommittee, that student assistance was student assistance, and after I proposed changes in it and started to hear from institutions I discovered it was a disguised institutional assistance and not student assistance. * * * (T)here is an institutional aid aspect, because when ever someone proposes changing a program a little bit they immediately hear from institutions saying: Wait a minute, your change will hurt our kind of institution or would help some other kinds of institutions. /38/ Secretary Weinberger was referring to Bob Jones University v. Johnson, supra, which construed the parallel provisions of Title VI in an analogous context. There 221 of some 4500 students in the university were receiving Veterans Administration ("VA") benefits. Like Grove City, Bob Jones refused to execute an Assurance of Compliance required by the VA before approving the university's educational program as one towards which VA benefits could be applied. The university contested coverage on the ground that it was not itself a direct recipient of federal financial assistance, since benefits were paid by the VA directly to students in a way similar to the Alternate Disbursement System for BEOGs. The district court rejected that argument. 396 F. Supp. at 603. /39/ Senator Bayh later defended the Department's conclusion that colleges are recipients of "Federal financial assistance," opposing an amendment which would effectively have removed student aid from the reach of Title IX. See pages 35-36, infra. /40/ Approximately four months after the regulations went into effect, Congress amended 20 U.S.C. (1970 ed. Supp. IV) 1232(d)(1), to say that failure to adopt a concurrent resolution disapproving a final regulation should not "be construed as evidence of an approval or finding of consistency necessary to establish a prima facie case, or an inference or presumption, in any judicial proceeding." Pub. L. No. 94-142, Section 7(b), 89 Stat. 796. But as this Court noted in North Haven, "the postenactment history * * * does indicate that Congress was made aware of the Department's interpretation of the Act * * * ." /41/ Hillsdale College, an amicus in this case, was found by the Department after an administrative hearing to have violated Title IX by refusing to sign an Assurance of Compliance. Like Grove City, Hillsdale does not apply for federal aid, but one-fourth of its students in 1978 financed their education through the use of Federal grants and loans. Hillsdale College v. Department of Health, Education, & Welfare, supra, 696 F.2d at 420. On appeal of the fund termination order, the Sixth Circuit agreed with the Department that Hillsdale is a recipient of federal financial assistance (696 F.2d at 424, 430). It nevertheless found the Assurance of Compliance form, as interpreted and applied by the Department, to be invalid (id. at 430). The court therefore reversed the Department's order terminating assistance (ibid.). /42/ Senator Bayh was referring to Bob Jones University v. Johnson, supra note 38. /43/ An index of such statements and testimony is attached at App. C, infra. /44/ Opponents of Title VI noted this omission. 110 Cong. Rec. 9084, 9094 (1964) (remarks of Sen. Gore); id. at 13382, 13415 (remarks of Sen. McClellan). /45/ Secretary Celebrezze stated that "(a)ll our payments are to the institution, and if the institutions are going to be segregated * * * we will not give them funds." 1963 Hearings, supra, at 1541. He then assented to Rep. Rodino's statement that Title VI gave "broad and sweeping power" to "withhold funds in most any program that you administer where there is direct or indirect financial assistance" (id. at 1542). Petitioners note (Br. 29-30) the omission of the language "direct or indirect" in the bill that emerged from the committee after Celebrezze's testimony. Petitioners cite nothing in the legislative history to support their interpretation of this change. At least one Senator commenting on the bill approved by the House expressly rejected petitioners' contention that the bill excluded indirect funding from Title VI. See 110 Cong. Rec. 9084 (1964) (remarks of Sen. Gore). /46/ See, e.g., 110 Cong. Rec. 13131 (1964) (list prepared by Library of Congress and introduced by Sen. Gore); id. at 13381-13382 (list prepared by the Department of Justice and introduced by Sen. McClellan); id. at 7085 (list of affected education programs presented by Sen. Sparkman); see also H.R. Rep. No. 914, supra, at 104-106 (Separate Minority Views of Reps. Poff and Cramer). /47/ 110 Cong. Rec. 6545 (1964) (Sen. Humphrey); id. at 10076 (Attorney General Kennedy). /48/ See page 4, supra. Petitioners claim (Br. 33) that Title VI was not intended to apply to the War Orphans' Educational Assistance Act, Pub. L. No. 85-857, 72 Stat. 1192 (codified at 38 U.S.C. 1701 et seq.). But it is by no means clear that Senator Humphrey's statement cited by petitioners (110 Cong. Rec. 11848 (1964)) refers to the educational benefits provided by the Act. It is in fact more likely that Senator Humphrey had in mind a number of provisions for unrestricted payments directly to individuals that are analogous to Social Security payments. See 38 U.S.C. (1958 ed. & Supp. V 1959-1963) 401 et seq. (dependency and indemnity compensation to widows, children, and parents for service-connected death of veteran); 38 U.S.C. (1958 ed. & Supp. V 1959-1963) 531-543 (payment of pensions for non-service-connected disability or death to children or widow of veteran). Even if Senator Humphrey had referred to the War Orphans' Educational Assistance Act, it is open to doubt whether his conclusion of Title VI's inapplicability was universally shared. The Veterans Administration determined that Title VI applied to this program in regulations issued in 1968. 33 Fed. Reg. 10516 (1968). And in Bob Jones University v. Johnson, supra, the court affirmed the Veterans Administration's reliance on these regulations to conclude that a university was subject to Title VI if it enrolled veterans receiving educational benefits analogous to those provided by the War Orphans' Educational Assistance Act. /49/ The Court in North Haven concluded (456 U.S. at 538) that the employment regulations were not "inconsistent with Title IX's program-specific character" because they were limited by 34 C.F.R. 106.1 (1980), which states their general purpose: to effectuate title IX(,) * * * which is designed to eliminate (with certain exceptions) discrimination on the basis of sex in any education program or activity receiving Federal financial assistance * * * . The Court also noted that "HEW's comments accompanying publication of its final Title IX regulations * * * indicated its intent that the Title IX regulations be interpretated in" a program-specific fashion. 456 U.S. at 538-539. /50/ As we stated in our response to Hillsdale College's petition for a writ of certiorari in No. 82-1538 (Brief for the Federal Respondents at 9): The Department does not contend that execution of an assurance acknowledges Title IX coverage of an entire institution regardless of the nature of the federal financial assistance. Rather, the Department agrees with the court of appeals that Title IX's nondiscrimination requirements apply only to those educational programs and activities of an institution that receive federal financial assistance. Accordingly, assurances of compliance must also be written and construed in a program-specific manner. /51/ See, e.g., 7 C.F.R. 15.4 (DOA); 14 C.F.R. 1250.104 (NASA); 22 C.F.R. 141.4 (DOS); 22 C.F.R. 209.5 (AID); 29 C.F.R. 31.6 (DOL); 38 C.F.R. 18.4 (VA); 40 C.F.R. 7.6 (EPA); 45 C.F.R. 611.4 (NSF); 49 C.F.R. 21.7 (DOT). /52/ 34 C.F.R. 106.71 adopts certain Title VI regulations, including one that requires a recipient to keep records and provide access to records by Department officials involved in an investigation. 34 C.F.R. 100.6. /53/ Petitioners' argument that termination punishes innocent students for no good reason (Br. 47) proves too much. It will always be the case that termination of assistance will affect students innocent of any wrongdoing. Yet Congress determined that such a remedy was appropriate in order to ensure that federal funds were not used to support discrimination. /54/ See also United States v. New Hampshire, 539 F.2d 277 (1st Cir.), cert. denied, 429 U.S. 1023 (1976) (upholding reporting requirement as a valid enforcement mechanism under Title VII); United States v. El Camino Community College District, 600 F.2d 1258, 1260 (9th Cir. 1979), cert. denied, 444 U.S. 1013 (1980) (HEW is entitled to considerable latitude to collect data needed to fulfill its regulatory tasks under Title IV). Cf. Endicott Johnson Corp. v. Perkins, 317 U.S. 501, 507-509 (1943). /55/ Although Grove City College is affiliated with the Presbyterian Church, petitioners do not contend that the College's refusal to assure compliance with Title IX is based upon any religious tenet. /56/ For example, a state may not prohibit an individual from obtaining a private education either by making public education compulsory, Pierce v. Society of Sisters, 268 U.S. 510 (1925), or by pervasive regulation of the private school which effectively denies its right to exist, Farrington v. Tokushige, 273 U.S. 284, 298 (1927). /57/ Contrary to petitioners' assertion (Br. 41 & note 41), the Title IX regulations do not become illegally ambiguous merely because they do not spell out which of Grove City's programs or activities is covered by Title IX. Unlike Pennhurst State School & Hospital v. Halderman, supra, in this case the statute and regulations clearly apply to all programs or activities receiving federal financial assistance. /58/ A decision of that question would require considerably more specific allegations of the nature of federal interference than petitioners have offered. Petitioners contend that "the Department asserts control over the College's day-to-day operations, threatening to destroy its autonomy and eliminate its unique characteristics" (Br. 47). But all that the Department has asserted in this case is that the College must sign Form 639 and comply with Title IX and its regulations insofar as they apply -- i.e., in the operation of the College's student financial aid program. It is unlikely that those duties would touch in any way upon the College's ability to maintain freedom of teaching, research, and publication. Nor is the requirement that the College not discriminate on the basis of sex inconsistent with the school's professed ideals. See Pet. Br. 48. Thus, it may be doubted whether this case -- even if it involved straightforward regulation rather than conditions attached to federal assistance -- would involve any substantial issue of institutional academic freedom. See Finkin, On "Institutional" Academic Freedom, 61 Tex. L. Rev. 817 (1983). /59/ See also North Carolina ex rel. Morrow v. Califano, 445 F. Supp. 532, 535-536 (E.D. N.C. 1977), aff'd, 435 U.S. 962 (1978). Appendix Omitted