By Dr. John Sparks

We wrote earlier about the Grove City College Supreme Court case (Grove City College v. Bell) in which the High Court ruled that any “financial assistance” used by students and their families to pay for their education at Grove City College made the college a “recipient.” What did this mean and what were the implications?

Being a “recipient” required Grove City College to be in compliance with Title IX of the Education Amendments that prohibited sex discrimination for entities receiving federal monies. As the Court emphasized, Grove City College had not actually engaged in discrimination based on sex, but it still had to deliver a signed assurance that it was in compliance. The Supreme Court said, however, that only the particular “program or activity” receiving the federal funding would be required to comply with federal regulations. That restrictive language, “program or activity,” was actually in the original Education Amendments.

Liberal legislators were pleased with the portion of the Court’s decision holding that the receiving of federal funds, no matter how indirect, made colleges “recipients.” However, they strongly disagreed with the Court’s “program specific” holding — that is, the part of the decision that limited the reach of the federal government to that part of the college’s operations that actually received the federal monies. They believed that if an institution of higher education received any federal dollars to support any portion of its program, the whole institution should be required to comply with federal law. It was no surprise that Sen. Edward Kennedy proposed new “corrective” legislation, entitled the Civil Rights Restoration Act of 1987, to reverse that part of the Supreme Court’s holding in the Grove City College v. Bell case that the big-government political Left did not like.

Dubbed in the press the “Grove City Bill,” it changed Title IX and other federal civil rights legislation. As Congress had originally passed it, Title IX limited the reach of federal bureaucrats into institutions that received federal monies by restricting the application of regulations to only that portion of the institution receiving the funds. Suppose for example that a regular four-year educational institution received a special federal grant to allow it to retrain displaced workers (non-traditional students). Only that program had to comply with federal regulations, not the whole school. However, the Civil Rights Restoration Act boldly redefined what “program or activity” meant — and thereby, in the process, making nonsense of the original language. The Restoration Act said that program and activity, from there on, should be read to mean all of the operations of the recipient institutions, schools, governments, or businesses in their entirety.

The Civil Rights Restoration Act went even further. It redefined similar “program specific” language in other federal acts, including the Rehabilitation Act of 1973, the Age Discrimination Act of 1975, and the Civil Rights Act of 1964. The result would be the same as in the Education Amendments. An entity, school, business or state government that took any federal money for even a small part of its activities would be covered institution-wide by these laws and regulations.

President Ronald Reagan saw the threat to freedom and the substantial compliance burden that could result from the Restoration Act. On March 16, 1988, he returned the proposed Grove City Bill unsigned, exercising his veto power and stating his reasons for the veto.

First, he said the bill would have an adverse effect upon the independence of religious institutions. If a church or synagogue received even a small amount of federal aid for a program for the poor or needy, the presumption would be that its total operation would be covered. Although private schools that were “controlled by a religious organization” were exempt, schools that adhered to religious tenets, but were not regarded as “controlled” by a denomination, would not be exempted if any part of their program received federal dollars. That would have been the case with Grove City College and many other Christian schools that were not directly under the control of a religious order.

Secondly, businesses that received federal monies for job training, for example, would have their operations covered in their entirety — perhaps, ironically, leading the businesses to withdraw from the federal program.

Thirdly, state and local governments, often receiving small amounts of federal funds for particular programs, would now find their entities covered by a plethora of regulations further undermining traditional principles of federalism.

Fourthly, compliance costs for those newly covered schools, businesses, and local governments would rise. They would rise because of compliance with ever-changing regulations and their interpretations. These schools and businesses and other entities would be required to either employ or retain compliance experts, to prepare for on-site visits, and to defend lawsuits that could arise.

Therefore, rightly concluded President Reagan, even though vetoing a bill with “civil rights” in the title would subject his administration to a considerable political risk and the likelihood of being misunderstood, the dangers of this Restoration Act outweighed the political firestorm that would and did swirl around him. Unfortunately, the House and Senate overrode his veto and the Civil Rights Restoration Act became law.

Grove City College had wisely removed itself from the expected costly and intrusive results of the legislation by refusing federal funds directly or indirectly.

Just as President Reagan had predicted, Title IX regulations and the Office of Civil Rights (OCR), mostly under the Obama administration, “catalyzed the establishment of gigantic and costly campus bureaucracies” dealing with alleged sexual discrimination. The OCR issued letters prescribing the requirements for internal campus investigations, even mandating the lowest standard of proof necessary for a violation to be found. In a recent article, one commentator summarizes the situation this way: “At its worst, Title IX is now a cudgel with which the government and school administrators enforce sex rules too bluntly, and in ways that invite abuse.”

Grove City College’s plucky stance in Grove City College v. Bell and President Reagan’s courageous veto were brave efforts to preserve a private sector in American higher education. However, after the Civil Rights Restoration Act, most colleges and universities, as recipients of federal monies, are gradually being compelled to turn over the governance of their institutions, in essential respects, to federal agencies and their unpredictable regulations.

Dr. John A. Sparks is the retired dean of Arts & Letters at Grove City College and a fellow for The Center for Vision & Values. He is a graduate of the University of Michigan Law School and a member of the State Bar of Pennsylvania. He is a frequent contributor of articles based upon U.S. Supreme Court developments.