Mr. O'HARA. Mr. Chairman, I am very glad that you brought that up. I should have thought of bringing that up.

Mr. HAWKINS. But you did not.

Mr. O'HARA. That is an exact analogy to the Morning v. Family Publications case. The recipient institution cannot evade the requirements of title IV by selling or otherwise transferring property financed, in whole or in part, et cetera, for instance, to a private academy, or an institution run, perhaps, by a religious order, or something of that nature, and thereby evade the coverage of the statute of the activities that you are carrying on, which are ones that the Congress intended to cover.

This is analogous to Morning v. Family Publications, which is a publications outfit saying that they were not exerting any finance charge, but said that they were just charging those people what they would have paid anyway, but, in fact, they were frontloading on the price.

The authority of the regulation is unlike Morning v. Family Publications. They have not only done this sort of thing, which I think is OK, but in addition to refraining from discriminating, which is what the law requires, you must do these other things besides.

They impose new duties on the recipient institutions which the law did not impose.

Mr. HAWKINS. The Chair at this point has a definition of "inconsistent," as defined by Black's Law Dictionary as being mutually repugnant, or contradictory, contrary one to the other so that one cannot stand; establishment of the one implies the abrogation or the abandonment of the other as in speaking of inconsistent defenses. Certain citations are made.

Without objection, I would like to have that definition entered into the record as being a fairly reasonable definition of "inconsistent."

BLACK'S LAW DICTIONARY

"Inconsistent-Mutually repugnant or contradictory; contrary, the one to the other, so that both cannot stand, but the acceptance or establishment of the one implies the abrogation or abandonment of the other; as in speaking of 'inconsistent defenses' or the repeal by a statue of 'all laws inconsistent herewith.'" Borough of Oakland v. Board of Conservation and Development, 98 N.J. L. 99, 118 A. 787, 788. Berry v. City of Fort Worth, Tex., Civ. App., 110 S.W.2d 95, 103. Mr. HAWKINS. Thank you, Mr. O'Hara.

Mr. O'HARA. Thank you, Mr. Chairman. I have very much enjoyed our conversation.

Mr. HAWKINS. Mr. Buchanan.

Mr. BUCHANAN. Mr. Chairman, I would like to join with the chairman in commending our colleague, the chairman of the Postsecondary Education Subcommittee, for the excellence of his statement.

He so eloquently and powerfully defended his point of view that to tell you the truth I was almost persuaded.

Mr. O'HARA. I may talk a little more, then.

Mr. BUCHANAN. I was almost convinced, but my leader in this subcommittee has raised some very interesting questions, I think, and I have a couple of others.

I think that you have clearly made some distinctions here. In the first place, we have the basic question of whether sections 431 (d) and

(e) are something that would stand up in the courts. I rather wish that we could have a test of it.

There is some real question about the validity because it appears to be an attempt to amend or clarify the constitutional prerogatives of the President without constitutional amendment, and I have a question as to whether that could be done.

In a similar vein, I am not certain that we can legislate in this way, through concurrent resolution. You have done it carefully believing that it would stand on constitutional grounds, but don't you agree that the courts would have to clarify that?

Mr. O'HARA. I am sure that Secretary Weinberger was speaking truly when he said that if we tried to disapprove any of the regs, he would try to enforce them anyway. Then, some recipient institution against whom a disapproved reg had been enforced, would have to take the matter to court.

That would get you a judicial determination of the validity of the section 431 procedure. I just want to say to my friend from Alabama that the only way we can get a court test is by adopting the concurrent resolution of disapproval.

Mr. BUCHANAN. I understand that, and I say to my friend that we are in the right place at the wrong time, however.

Mr. O'HARA. I wish that it would have been with a less emotional subject that we had had our first test of section 431(d) and (e), because there are some people who are not prepared to listen when you say: "Well, look, I am not complaining about the objectives to be reached by the regulations. I am complaining about the way in which the regulation writer has conducted his responsibilities."

There are some who feel so very, very strongly about the substantive question that they cannot really look at the procedural question, and that has caused us most of the difficulty that we have had on these regulations.

Mr. BUCHANAN. I rather feel strongly that this is an area where we are dealing with a majority of the population, 40 percent of the work force at the present time, and an area where there appears to be widespread discrimination built into the institutions and traditions and customs of our society.

So, in this kind of situation, you would have virtually all institutions needing to do a self-evaluation, and perhaps establish grievance procedures to be sure you are covering everyone.

I have always believed that racial discrimination was far more widespread than any of us seemed to think when we started out zeroing in on the Southeast, where, of course, we had a problem.

I always felt that this was a more widespread problem than we always indicated it to be by legislative and executive decision in this area. Would you agree that this is an area where we have a widespread problem, where many, or most, institutions might need some kind of self-evaluation?

Mr. O'HARA. I think that perhaps they do, although I really think that it sort of assumes something, where we say that every institution in America is suspect, because we require all of them to do a selfevaluation program.

I am not sure that I want to assume that they have all been doing wrong. I know that a lot of them have. I know that sex discrimination

has been widespread, and maybe the Congress ought to consider requiring institutions to conduct self-evaluation, but it should be the Congress and not the regulation writer that does it.

Mr. BUCHANAN. Since we are dealing with an unclear area, at least one where there is no clear court decision, to my knowledge, as to whether or not we can proceed with concurrent resolution of disapproval, I wonder if we do not have the alternative, as the gentleman said, when we take up legislation to amend title IX, to consider the inclusion of self-evaluation in that legislation and also the grievance procedures, perhaps. Would that option not be before us?

Mr. O'HARA. Yes, it would. I have been considering that route. In addition, I have been considering the question of whether or not a Member of Congress might have standing to sue in these particular circumstances. That is an area in which there has been some recent development in the law.

So I am looking into other options, because very frankly, as the gentleman from Alabama knows, I think that there is practically a zero chance of getting this resolution adopted in time to disapprove those regulations, even if the full committee were to meet tomorrow and report the resolution. Any member is entitled to 3 days in which to compose and file additional views. I am sure that someone would claim the right, and that action would, in itself, take us beyond the time in which we must act.

Mr. BUCHANAN. Would my distinguished colleague agree that the most certain way for the Congress to exercise its constitutional prerogative, and for the people's branch of Government to recapture its legislative powers, would be for us to clearly, specifically legislate in this or any other field.

Mr. O'HARA. Yes. You are exactly right about that. I think that the Congress was remiss in just sort of slapdashing this thing into the law without really considering some of the complicated ramifications

of it.

In particular, I think that it is so in the athletic area, where we had a responsibility to spell out our intentions more clearly than we did.

But in this particular area, I don't think that one could have anticipated, based on the title VI regulations and we were told that what we were trying to do was to enact title VI for sex discrimination— that the regulations that we now have before us would have been presented with the ones that were disapproved.

So I think that in that regard, maybe, we are not at fault. The trouble with going the statutory route to change it is that it accepts Secretary Weinberger's thesis that when they decide that a regulation is OK, that it is final as far as the Congress is concerned, unless the Congress subsequently amends the law to say what they meant to say in the first place.

I don't want to accept that thesis, and that is why I have been hesitant about going the statutory route.

Mr. BUCHANAN. As I said, we are in the right place at the wrong time, I would like to see this tested in the courts. I doubt if it can be done, but if it can, it would be useful and innovative legislation, too.

I would strongly support the idea of amending the legislation before the gentleman's subcommittee to include the self-evaluation and maybe the grievance procedures, because I think that these things are needed.

If we need to spell it out in the law for them to have legal basis, then I would hope that we would do so when we take that up.

Mr. O'HARA. If we go into enforcement procedures, I think that we ought to review the whole question of enforcement procedures.

As the gentleman from Alabama knows, I have had serious reservations about some of these systems that involve the use of numerical goals and timetables because of the way they inevitably lead to quota systems.

As I said in my statement, I really think that internal grievance procedures in deciding complaints of sex discrimination on a case-bycase basis, is a lot better method of enforcing title IX than are some of the affirmative action procedures which I think in the end sometimes lead to injustices themselves.

However, I would want to review the whole thing, if we are going to review that. That is all I want to say.

Mr. BUCHANAN. Perhaps it would be a good idea down the road for our subcommittee.

I thank the gentleman. I would say again, Mr. Chairman, that our colleague, Mr. O'Hara, is dealing with a most important question of our time, and that is: What has happened to the power of the people's branch of the Government? I do commend his efforts to do something about it.

Mr. O'HARA. I thank the gentleman from Alabama. I have been trying to get across the fact that that is my problem, and not the internal grievance procedures, which I generally think is a good idea. Mr. HAWKINS. One final question, Mr. O'Hara.

With respect to the procedural regulations which have been submitted concurrently with the title IX regulations, is it your understanding that these proposed procedural regulations that are now being circulated for comment by HEW, will have to be submitted to the Congress for their approval under section 431(d)?

Mr. O'HARA. Yes; it is my understanding that they would have to be submitted for approval under 431 (d). Secretary Weinberger has taken the position, mistakenly in my view, that simply sending the regulations to the Congress at the same time that the notice of proposed rulemaking is printed in the Federal Register, and giving the Congress the same opportunity to respond as the general public has, except for 15 days longer, meets the requirements of 431 (d).

That was not our intention when we wrote 431 (d), and it is not my understanding of the way the law works. The way that I understand it, and I would certainly insist on this interpretation, the executive branch places in the Federal Register a notice of rulemaking under the requirements of the Administrative Procedures Act, and at that time the public must have at least 30 days.

The Secretary will review the comments made, and conduct hearings, possibly. Then they decide on their regulations, and they publish their regulations. It is at that point that 431(d) comes into effect, and it is 45 days from then that we must take action. This is my understanding, Mr. Chairman.

Mr. HAWKINS. The Chair has regret fully overlooked our colleague, Mr. Miller, who is seated so far away. Perhaps Mr. Miller would like to ask a question also..

Mr. MILLER. I have no questions, Mr. Chairman. I want to thank you for this opportunity that you have offered to the full committee to attend this hearing.

I want to commend Mr. O'Hara on his defense of the separation of powers. I do, however, have a couple of observations.

I think that the chairman was quite right when he read Black's law dictionary for the term "inconsistent." We read into this question of consistency and inconsistency the term "reasonableness."

I think that what we have to do is compare title VI with title IX, and see whether or not we have learned something in 10 years. Are these the proper tools to carry out that intent?

In terms of your analogy to the 55 miles-per-hour speed limit, I would suggest that perhaps, maybe, these regulations are more in line with the regulations requiring flight recorders on an airplane so that those who are present at the crash know what happened prior to that crash. Then, the agency which has to enforce the law, knows what took place. Those individuals who want to sue for losses and damages, and grievances, know exactly what happened.

I think that the recordkeeping, and possibly the self-evaluation process, all these tools, as the chairman pointed out, as I understand, are reasonable. That is the test on which we have to base the argument on consistency or inconsistency without an absolute prohibition in the law against such case.

I do share your concern with the license that we have seen just recently in the service contract, in this committee and other subcommittees, where I don't think that they ever read the law when they wrote the regulations. They are in absolute opposition to what the letter of the law had stated was the purpose.

So, I think that it is very important that your case be made. I think that it is a question of whether or not we accept

I want to thank you, Mr. Chairman, for making the invitation. Mr. HAWKINS. Thank you, Mr. Miller, for your contribution. Thank you, again, Mr. O'Hara.

Mr. O'HARA. Thank you.

Mr. HAWKINS. It is our intent to act on this matter today, and pos sibly file some sort of a report before the end of the day.

Mr. O'HARA. I very much appreciate that, Mr. Chairman, and I will ask for a full committee meeting tomorrow on the subject, if I can, but I am not encouraged about the timetable.

Mr. HAWKINS. The next witnesses will consist of representatives from the Department of Health, Education, and Welfare: Ms. Gwendolyn Gregory, Director of the Office of Policy Communications of the Office for Civil Rights; Mr. John B. Rhinelander, General Counsel of the Department; and Mr. Richard Hastings, Acting Deputy Assistant Secretary for Legislation of the Department.

We are very pleased to have the witnesses before us, and we look forward to their testimony.

Ms. Gregory, we do have your prepared statement, which will be entered in the record in its entirety at this point. You may either read from it, or proceed to give us the highlights, or deal with it as you so desire.

[Prepared statement of Gwendolyn Gregory follows:]