Anna Scanlon, a 6 1/2-year-old Fairfax County child, has been barred from the soccer team she has played on for the last two years because league rules prohibit integrated teams for children over the age of 6. The team practices on public school grounds, and there is every likelihood the school receives federal impact aid. Up until a year ago yesterday, she might have been protected under a federal law barring discrimination in any educational institution that receives federal money. That remedy no longer exists.
Anna's lack of protection is but one example of the impact of the U.S. Supreme Court's decision in Grove City College v. Bell, in which the high court ruled that Title IX of the Education Amendments of 1972 forbade gender discrimination only in specific educational programs or activities that receive federal funding, not the entire institution.
The ruling reversed longstanding federal interpretation of the statute and, almost immediately after the court ruled, a major effort was launched in Congress to pass the Civil Rights Act of 1984, which would have reversed the ruling and brought institutionwide enforcement of Title IX.
The language narrowly interpreted by the court was precisely the same language that was used in three other laws prohibiting discrimination on the basis of race, national origin, disability and age. As a result of the Grove City College decision, protections for those groups were narrowed as well. The Civil Rights Act of 1984 would have amended all four laws to broaden the scope of coverage to any "recipient" of federal funds.
The act was passed overwhelmingly by the House but was filibustered in the waning days of the Senate session by conservatives who used the word "recipient" to argue that the measure would go much further than previous legislation, not merely restore coverage to the pre-Grove City College status.
This week, on the first anniversary of the Grove City decision, five legal and advocacy organizations released a study on the impact of the ruling and found that "at least 63 cases in the Department of Education have been closed, limited or suspended . . .
"The decision has created absurd results in many instances," the study found. "Complaints are not investigated because the alleged discrimination took place in a building not constructed or renovated by federal funds. When complaints are investigated, the whole process takes longer because the federal government has to search for federal money connected with a specific program."
The study cites numerous cases, taken from the Office for Civil Rights docket, which were dropped or put on hold during the past year. An example: a student filed a Title IX complaint, alleging that her university failed to redress a sexual harassment complaint and had no grievance procedure, as required by Title IX. "Prior to the Grove City College decision, OCR only had to determine that the university received federal funds," the study noted. "Now OCR must find whether federal funds go to the program in which discrimination is charged. In this case, it was the Economics Department located in Lake Hall.
"But OCR decided that it could not investigate the complaint because Lake Hall, where the alleged discrimination occurred, was not built or renovated with federal loans." The university had, however, received $2.2 million in federal loans to renovate housing and another $9.9 in student aid for the 1983-1984 school year. Had the alleged sexual harassment occurred in the dorms, the Office for Civil Rights could have investigated.
The Civil Rights Restoration Act of 1985, introduced in both the House and Senate, would overturn the Grove City College ruling and bar discrimination on the basis of sex, origin, age or disability in any "program or activity" of any state or federal agency or any educational institution, if any part of it receives federal funds. Senate Majority Leader Robert Dole (R-Kan.) has introduced the Civil Rights Bill of 1985, which would also overturn the Grove City College ruling, but which backers of the Restoration Act say is too restrictive in other respects.
The point of any legislation that comes out of Congress ought to be to restore civil rights enforcement to the breadth of coverage and commitment that existed before the Grove City College decision. The House was able to see its way clear to do that, and promptly. Surely, it cannot be a semantic task too awesome for all the legal talent in the Senate.