Congress and Civil Rights
RAVITCH 7, DIANE
MISSING DEFINITIONS Congress and Civil Rights BY DIANE RAVITCH Congress has moved rapidly on the Civil Rights Act of 1984, intended to give added force to Federal statutes banning discrimination...
...MISSING DEFINITIONS Congress and Civil Rights BY DIANE RAVITCH Congress has moved rapidly on the Civil Rights Act of 1984, intended to give added force to Federal statutes banning discrimination on the basis of sex, handicap, age, race, and national origin...
...This part of the Court's decision represented a sweeping expansion in coverage, because it provides a rationale for extending the civil rights statutes to private institutions that receive indirect Federal benefits (like nonpublic schools...
...Increasingly, charges of civil rights violations have been based not on proof of intent, but on statistical demonstrations of differences among groups...
...Rather it is Congress' failure to confront controversial practices...
...we have found no persuasive evidence suggesting that Congress intended that the Department's regulatory authority follow Federally aided students from classroom to classroom, building to building, or activity to activity...
...Where Grove City College was concerned, said the majority opinion, only the financial-aid program was covered...
...The Rehabilitation Act of 1973 requires public and private agencies to provide equal treatment for handicapped persons in Federally-funded programs and activities...
...Instead of becoming a nation where each person is treated as an individual without regard to such characteristics as race, national origin and gender, we are developing an increasingly pervasive social policy of using these qualities as conditions of entry to education and employment...
...In 1979 the Supreme Court turned down the plea of a deaf woman who sued to enter a nursing program in a North Carolina college, and in 1982 it held that a school district in New York State was not required to hire a sign-language interpreter for a deaf fourth-grader...
...In the last days of the Carter Administration, a test for Diane Ravitch, a frequent New Leader contributor, is Adjunct Professor of History and Education at Teachers College, Columbia University, and the author most recently of The Troubled Crusade: American Education, 1945-1980...
...Two years ago, in an employment discrimination case called North Haven Board of Education v. Bell, the Court wrote at length on that very point...
...Grove City College's quiet nonengagement did not escape the attention of the Department of Health, Education, and Welfare...
...Contrary to popular impression, the Supreme Court's ruling was a distinct setback for Grove City College...
...In a case now before the Supreme Court, a Texas school district is appealing a lower court's order to accept responsibility for catheterizing a handicapped student's bladder...
...The problem with the Civil Rights Act of 1984, in short, is not the principle it enunciates...
...Nor should discrimination due to race, gender, handicap, religion, or national origin be permissible in any aspect of American life...
...Civil Service administrators was abolished because the passing rate differed among racial groups...
...In 1977 the college was directed to sign a Title IX Assurance of Compliance...
...Title IX prohibits sex discrimination "under any education program or activity receiving Federal financial assistance...
...The case involved a small coeducational, liberal arts college in Pennsylvania that for over a century had refused all financial involvement with the state or Federal government...
...If this result is what Congress intends by enacting the Civil Rights Act of 1984, then it should take responsibility for its actions...
...The new bill's principal sponsors—Senators Edward M. Kennedy (D.-Mass) and Bob Packwood (R.-Ore...
...In the process, the original intent of the Civil Rights Act of 1964 seems to have been transformed into something quite different...
...This changed after demands for revision of the civil rights laws were spurred by critics' complaints that the Court had "cut the guts" out of Title IX, the law banning sex discrimination...
...If it did not, the Department declared, its students would lose their Federal aid...
...But since the question at the heart of the subsequent controversy has concerned Congress' intent—did it mean to apply the laws to specific programs receiving Federal funds or to entire institutions receiving Federal funds?— clarifying Congressional action is entirely justified...
...Perhaps more helpful, however, would be an unambiguous declaration from Congress explaining what the civil rights provisions permit and forbid...
...Should statistical disparities among racial groups, ethnic groups, religious groups, and the sexes on tests or in the workforce serve as proof of discrimination...
...The proponents of the Civil Rights Act of 1984 insist that the civil rights laws must not be "program-specific," and that an institution getting Federal money, whether directly or indirectly, must be entirely covered in all of its parts, personnel, programs, and activities by the full panoply of statutes barring discrimination...
...But administrative officials at the Board of Education ruled that the teacher could not be ousted for his mental illness because mental illness is a handicap, and discrimination against handicapped persons is illegal...
...With each passing year, though, the challenges under this law have become more complex...
...In holding that Title IX covered employees as well as students, a majority of the Court (with Chief Justice Warren E. Burger and Justices Lewis F. Powell Jr...
...Will the new law cover private and parochial schools (almost all of which receive direct and indirect Federal dollars...
...Uncertainty about how to interpret the civil rights laws sometimes leads to extreme decisions by administrators...
...If not, then it should make its positions plain for those who will write the regulations and interpret the laws...
...Thus the meaning of the law was plain...
...Justice Byron R. White stated...
...ON THE MERITS, it is difficult tO argue that Grove diluted the nation's civil rights laws, for the Supreme Court had previously considered them to be " program-specific.'' Moreover, the Court here extended the reach of the civil rights laws to cover all direct and indirect recipients of Federal aid, a definition wide enough to include every public agency, every tax-exempt institution, and virtually every private organization as well...
...An administrative law judge ruled against Grove City College, but stated: "It should...
...Each new challenge to the civil rights laws has raised difficult issues, and each case that has been litigated has turned on the question of Congressional intentions . Until the Grove decision last February, the legislators had been happy to leave the hard cases for the courts to resolve...
...Contesting the order to sign the statement, the college and four of its students sued in Federal court...
...Second, if Grove City is a recipient, is the entire institution affected or only the specific "program or activity" receiving Federal dollars...
...be noted that there is not the slightest hint of any failure to comply with Title IX, save the refusal to submit an executed Assurance of Compliance with Title IX...
...It was the latter part of the decision that provoked outraged claims of the nation's civil rights laws having been placed in jeopardy...
...insist that it introduces no fundamental changes, that its only purpose is to restore the rights placed in jeopardy by the Supreme Court's Grove City College v. Bell ruling...
...In particular, feminists worry that an emphasis on the "program-specific" nature of Title IX would remove Federal pressure on schools and colleges to assure equal funding for men's and women's sports, which are not direct recipients of government funding...
...By the time the case reached the Supreme Court, there were two major issues to be decided: First, is Grove City College a recipient of Federal aid, despite its not accepting any Federal grants or contracts...
...The Court ruled unanimously that the college is a recipient of Federal assistance, and that student financial aid could be terminated if it failed to file an Assurance of Compliance with Title IX...
...They argued that the college was not "receiving" Federal aid, and that the government should not cut off assistance to needy students merely because the college refused to sign the Assurance of Compliance...
...Will the new law promote or prohibit quotas based on race, gender, age, handicap, and national origin...
...Several Congressmen promptly declared their readiness to override the ruling, and 62 senators have agreed to cosponsor the new act...
...What exactly did the Supreme Court do to arouse this heated campaign...
...The banning of discrimination against the handicapped has led to other kinds of problems...
...The sponsors of the new legislation stress that it will break no new ground, but they have an obligation to clear up the old ground—to settle many of the issues that have clogged court calendars in recent years...
...A New York Times story later reported that the teacher had been repeatedly hospitalized for mental illness...
...it also declined to participate in any Federal programs that would have made it responsible for assessing students' eligibility for assistance...
...When the original Civil Rights Act of 1964 was passed, many states and private institutions were engaged in overtly discriminatory practices—excluding persons from participation in publicly-funded programs, for example, solely because of their race or national origin...
...In New York City, a Federal judge invalidated a written test for city policemen as racially discriminatory because a larger proportion of whites than blacks passed the test...
...In January, after he shoved a third-grade student's head against a desk in the classroom, the principal sought to dismiss him...
...Not only did Grove City College reject any direct institutional support...
...If anything, therefore, the decision broadened the reach of the laws by defining so anomalous an institution as Grove City College a "recipient" of Federal money, even though it never directly received a Federal grant, loan or contract...
...Although that is not an accurate reading, the view has led to a tidal wave of support for strengthening the antidiscrimination laws...
...and William H. Rehnquist dissenting) agreed that "an agency's authority under Title IX both to promulgate regulations and to terminate funds is subject to the program-specific limitations" of the Act...
...Although Grove seems to have been massively misinterpreted, the new Civil Rights Act could help to eliminate some inconsistencies in enforcement...
...As it happens, the Supreme Court's definition of the "program-specific" nature of Title IX is not new...
...In March 1983, for instance, a New York City public school teacher was arrested and charged with pushing a woman to her death in the path of a subway train...
...This placed Grove City College in a position comparable to that of professors in the 1950s who were fired for not signing a loyalty oath, even though no questions were raised about their loyalty...
...Will all tax-exempt institutions be considered recipients of Federal assistance...
...In the absence of an unambiguous declaration of Congressional intent on these kinds of issues, the regulation writers and the judiciary have moved steadily toward establishing what Nathan Glazer has described as "affirmative discrimination...
...On the second issue, the Court divided 6-3 in holding that the coverage of Federal regulations applied strictly to the "program of activity" benefiting from Federal support...
...Will the new law permit or prohibit competency tests for employment or graduation if people of different races pass in different proportions...
...Currently, the Federal Department of Education is charging the university system of Georgia with racial discrimination because more white students than black students pass a state-required graduation test of reading and writing skills...
...According to critics of the Grove decision, it leaves institutions free to discriminate in any program or activity that does not receive direct Federal funding...
...At a minimum, this means providing physical access through ramps and elevators for the wheelchair-bound, and other kinds of special aids for those who are deaf and blind...
...In the same city, a physical test for fire fighters was banned as sexually discriminatory because few women could pass it...
...In other words, should the fact that some students receive Federal grants and loans subject the entire institution to the full battery of Federal regulations regarding affirmative action in employment, athletics, counseling, housing, admissions, grievance procedures, and reporting requirements...
...Some of its students received Federal loans and grants through the "Alternate Disbursement System," which put the students directly in touch with the Federal government and eliminated the college's role as middleman...
...Will all institutions, agencies, and businesses covered by the new law be required to prepare an ethnic census and to adopt affirmative action personnel policies...
...Since that time the Federal Courts, government agencies and institutional administrators have frequently arrived at conflicting interpretations, resulting in unending confusion and contention...
...There is no valid reason why an institution should receive Federal funding in one program, yet be free to discriminate against women or blacks or handicapped persons in another program that has no Federal funding...
...The college claimed that it was not a recipient, and that the government could not compel it to sign an Assurance of Compliance...
Vol. 67 • May 1984 • No. 69
