Mr. BUCHANAN. Just so that there will be one lonely voice on the other side, I am not certain that you have been tough enough. I think that it is OK to have nuns only or monks only as faculty, or to have a boys' school or a girls' school; we tried to provide for this, I believe. I think that if you got much beyond that, you are getting into real questions of how much one can use religious beliefs to foster policies in educational institutions receiving Federal funds, which practices may be in violation of the Federal law.

I am not sure that you have to give the people's money to an institution that, on the basis of a religious belief, would insist on racial segregation, for example.

I think that you have a little different situation under title VI, because you definitely have the 14th amendment, and you have clear constitutional coverage basis to cover anything that the legislation may not cover as to what you do about discrimination with regard to

race.

You don't necessarily have that under title IX, because the Equal Rights Amendment has not been passed on that. I am not a lawyer, and I don't know whether there is any difference in these two situations or not.

Let us suppose that I should be the president of an institution, and there are some, that believe that the Bible taught segregation by race. It would be wrong for my institution to fail to do other than to segregate by race. If I were to ask HEW to support, with Federal money, my institution, which segregated by race as a matter of religious belief, would you do it?

Ms. GREGORY. The Bob Jones University case, where the university refused to sign an assurance of compliance with title IX for that reason. Therefore, their funds were terminated, and they are no longer receiving Federal funds. The case involved veterans' benefits, so they are no longer qualifiable for veterans.

There is certainly a dual issue here. One is the "establishment of religion" issue by giving funds to a religious institution, and the other is the intrusion of the Federal Government into religious practices by telling them that they cannot do this, or they cannot do that, and examining their religious tenets. We are not getting into that particular issue.

Mr. BUCHANAN. I am against the funding of sectarian institutions with Federal money.

Beyond that, I gather that we are making some kind of distinction between discrimination by sex and discrimination by race because, as I understand your regulations, there are not any sanctions in your regulations. The only sanction you would have, if you had any, I assume would be to cut off the money.

Yet, I assume that if this were a title VI matter, you would do something about an institution that was seeking Federal funds, or seeking to continue to receive Federal funds, which wrote you and said: "It is against our religion to desegregate."

Ms. GREGORY. Title VI does not include the religious exemption that title IX includes. The provision that is the subject of the concurrent resolution is merely an implementation of the specific exemption in the legislation itself.

There was no need for such language in the regulation implementing title VI for the reason that there was not an exemption specifically set forth in that statute.

Mr. BUCHANAN. Thank you very much. This is all, Mr. Chairman. Mr. HAWKINS. Let me see whether or not Mr. O'Hara has any questions.

Mr. O'HARA. Just a very quick one, Mr. Chairman.

If I understand your position, if the concurrent resolution of disapproval were to be agreed to, in the form that you now have it before you, within the time permitted, it is your position that it would certainly not affect those parts of the regulation that were not disapproved and on which you would move ahead with immediate implementation.

While you have no final decision on the question of what you would do with those parts of the regulation that were disapproved, it is your impression that you would probably move ahead with immediate enforcement of them as well.

Ms. GREGORY. At least with the self-evaluation and the grievance procedure. That is a fair interpretation.

Mr. O'HARA. So the contention that has been heard, which was heard here last week, that adoption of the concurrent resolution of disapproval would delay the implementation of the title IX regulations, is not correct.

Ms. GREGORY. I think that there might have been some misinterpretation of the Secretary's statement in that regard. What we meant was that although we, as a department, would continue to attempt to implement the regulation, the problem arises when you get to an institution, a school district, or a college, and you quote the regulation, and cite them for noncompliance, and try and resolve the matter.

The college says: "The Congress says that we don't have to do that." You get that sort of a problem in our enforcement effort.

Mr. O'HARA. With respect to those grievance procedures and the self-evaluation, but not with respect to any of the others.

Ms. GREGORY. That is correct.

Mr. O'HARA. Finally, Mr. Chairman, I want to thank the witnesses for the statement. It sets forth the point of view of the Department very well, I believe, but I would like to point out that the real problem that we are dealing with is what happens to the laws after we enact them.

I think that the interpretation that the counsel has placed on 431(d), a tortuous interpretation in my opinion, in order to achieve--to read it in a way that is most in keeping with their own views of what we should have said, is just another example of the kind of thing that we are trying to combat here.

I am very sorry that the whole question came up in the context of discrimination against women, or discrimination on the basis of sex. I wish that it had come up in connection with a less emotional subject. But, perhaps, if my assessment is right, and we fail on the time-table problem on this point, I am sure that HEW will do me the courtesy of sending over some equally bad regulations before long on some other subject. I will take it up then.

I thank the Chairman.

Mr. BUCHANAN. Do I understand your position to be that where we have authorized and directed you to do something, that is to end dis

crimination in education programs that are federally funded, that you feel your position would be unlawful if you did not, by regulation, make it broad enough to fulfill that obligation under the law?

The concern that we have expressed is that you, in your grievance procedures and self-evaluation, have exceeded the law. You have done that which the law provides you cannot do. Do I understand that to be your position, that under the law, in order to fill our direction you have so acted. I don't want to put words in your mouth.

Ms. GREGORY. If I understand your question correctly, I don't think that we are saying necessarily that under the grievance and self-evaluation procedure that we have to have a provision on that in the regulation, otherwise we will be in violation of the title IX. I don't think that we are saying that at all.

However, because of our questions with regard to the constitutionality of 431(d), the concurrent resolution of disapproval requiring us to remove these provisions from title IX, we would feel that it would not have the force and effect of law. Therefore, it would leave us with a policy determination as to whether or not to leave them in.

That is the policy determination that has not been officially made at this point.

Mr. BUCHANAN. The grievance and self-evaluation proceduresMs. GREGORY. They are not contained in the title VI regulation. The title VI regulation, as Mr. O'Hara has mentioned, is not as comprehensive for the reason that we did not have the knowledge that we have now.

Certainly, had we known what we know now at the time we passed the regulations, they would have been more comprehensive I am sure. I might add that we have had a substantial amount of comments from the public as to the proposed regulations which did not include those provisions, especially with regard to self-evaluation, requesting us to put the self-evaluation provision in the regulation.

As a matter of fact, those comments requested something much more strong than the self-evaluation requirements that we have in there now. Mr. BUCHANAN. I think that it is a useful initiative.

Ms. GREGORY. It is explicit in the statute. How else can you voluntarily comply, if you have not looked at your policies to determine whether you are in compliance?

Mr. BUCHANAN. I would praise your intent.

Thank you, Mr. Chairman.

Mr. HAWKINS. Thank you, Mr. Buchanan.

We do not have enough members of the subcommittee who favor the resolution. At the same time, we do not want to take action to block consideration of the resolution by the full committee because it would be useless, since the full committee can withdraw the resolution anyway. The Chair recognizes Mr. Benitez.

Mr. BENITEZ. Mr. Chairman, I wish to ask that House Concurrent Resolution 330 be reported to the full committee with recommendation that it not be passed.

Mr. HAWKINS. The motion is seconded by Mr. Perkins that the resolution be reported to the full committee with a recommendation that it not be passed.

Mr. BUCHANAN. Mr. Chairman, I would third the motion, or have a rollcall vote, because I want to be clearly on the record in line with the gentleman's motion.

Mr. HAWKINS. Without objection, the motion is adopted unanimously. The committee stands adjourned.

[Material submitted for inclusion in the record follows:]

THE LIBRARY OF CONGRESS, CONGRESSIONAL RESEARCH SERVICE, Washington, D.C., July 14, 1975.

To: House Subcommittee on Equal Opportunities.
From: American Law Division.

Subject: Self Evaluation and Grievance Procedures Prescribed by HEW Regulations Under Title IX.

Reference is made to your inquiry of July 11, 1975 relative to the above. Specifically, you inquire as to the validity of the proposed regulations of the Department of HEW under Title IX of the 1972 Education Act Amendments (20 U.S.C. 1681 et. seq.) insofar as they would require educational agencies to undertake programs of self evaluation and establish internal grievance procedures for processing complaints under the Act. Briefly, section 86.3 (c) of those regulations would require recipient institutions to evaluate their current policies and practices with a view to ascertaining their compliance posture and modify any offending policies or practices. Section 86.8 would require the recipient to adopt and publish grievance procedures for the resolution of student and employee complaints of violation of the Act.

Since Title IX affords little express guidance on the matter, the validity of these procedures would seem to depend on whether they are somehow inconsistent with the express provisions statute or might reasonably be implied from its terms. Section 902 grants the agency authority to issue rules and regulations consistent with the objectives of Title IX and agency discretion is expressly limited only with respect to the termination of assistance. Thus, before taking action to eut off aid, HEW must notify the recipient; afford opportunity for hearing; make an express finding of noncompliance; file a written report with both Houses of Congress; and wait thirty days from the filing of this report. In each instance, however, these requirements appear designed to insure against arbitrary exercise by the Department of the ultimate sanction prescribed by the Act and do not seem at odds with HEW's exercising its rule making authority to prescribe other means of securing voluntary compliance short of terminating assistance.

Moreover section 902 specifically provides as an additional safeguard that some form of voluntary compliance effort be undertaken. That is, the agency is required to satisfy itself that "compliance cannot be achieved by voluntary means." While the methods contemplated by this latter requirement are spelled out neither in the statute or the legislative history, it would seem to at least impliedly authorize the means chosen by the Department.

Additionally, it should be noted that the establishment of such procedures in the absence of express statutory authorization is not without some precedent in the current law. Title IV of the Public Health Services Act, which makes funds available to the States for the construction and modernization of hospitals, requires assurances from the State that such facilities be made available to all persons in the community and, further, that a reasonable volume of services be made available to those unable to pay. 42 U.S.C. 291e (e). The statute is otherwise silent on the matter. The regulations issued by HEW, however, require that the States enforce these assurances by annual evaluation of compliance by facilities and that they establish procedures for investigation of complaints that the assurances are being violated. 42 C.F.R. 53.111 (i); 53.113 (f). It is hoped that this will assist in your consideration of this matter.

CHARLES V. DALE,
Legislative Attorney.

OFFICE OF GOVERNMENT LIAISON,
Washington, D.C., July 10, 1975.

Hon. AUGUSTUS F. HAWKINS,
Chairman, Subcommittee on Equal Opportunities, Committee on Education and
Labor, U.S. House of Representatives, Washington, D.C.

1

DEAR MR. CHAIRMAN: On behalf of the United States Catholic Conference, I would like to express our views on the Concurrent Resolution dealing with the Regulation governing the implementation of Title IX of the Education Amendments of 1972 (P.L. 92-318). It is my understanding that H. Con. Res. 330 as

amended (Erlenborn-Quie Amendment) by the Subcommittee on Postsecondary Education has now been referred by action of the full Committee for further consideration by your Subcommittee.

The United States Catholic Conference supports the retention of the Erlenborn-Quie Amendment to disapprove Sec. 86.12 (b) which might be interpreted as requiring an educational institution to claim the religious exemption granted to them in the Act by Sec. 901(a)(3). Since the Act clearly exempts these institutions, there is no necessity to devise an administrative procedure which would, in effect, force such institutions to petition the Department of Health, Education and Welfare to enjoy that exemption.

Furthermore Section 86.12 (b) requires the institution to submit in writing the "specific tenet" of the religious organization which is in conflict with any provisions of the Regulation. This procedure could require all educational institutions controlled by a religious organization to somehow justify their religious tenets to a governmental agency and would surely create some serious First Amendment constitutional problems concerning the separation of Church and State.

Therefore, we think that the elimination of any such procedure from the regulations would significantly improve these regulations.

I am also enclosing copies of some recent correspondence on this same subject to all of the members of the Committee on Education and Labor as well as our comments on the proposed Title IX regulations. These documents will provide you with more detailed information about our concerns.

I am requesting that this letter and the attached documents be entered into the record of your Subcommittee's hearings on this matter. Sincerely,

Hon. JAMES G. O'HARA,

JAMES L. ROBINSON,

Director.

OFFICE OF GOVERNMENT LIAISON,
Washington, D.C., June 30, 1975.

Chairman, Subcommittee on Postsecondary Education, Committee on Education and Labor, U.S. House of Representatives, Washington, D.C.

DEAR MR. CHAIRMAN: On behalf of the United States Catholic Conference, I would like to express our views on certain aspects of the recently promulgated Regulation to implement Title IX of the Education Amendments of 1972 (P.L. 92-318).

This Regulation provides for an exemption for educational institutions which are controlled by a religious organization "to the extent application of this part would not be consistent with the religious tenets of such organization." (Sec. 86.12) It is our understanding that this exemption applies to any requirements of this Regulation which are inconsistent with the religous tenets of a religious organization that operates an educational institution. We feel that this was clearly the intent of Congress in creating this exemption and that there should be no ambiguity about this in either the Regulation or in any new amendments to title IX which the Congress might enact.

There are two situations which this Regulation does not address directly and which should be clarified by any new legislative amendments. One involves the appointment of teachers or administrators within an educational institution who are either clergy or members of a religious order. If the operation of an educational institution is part of the religious mission or apostolate of a religious order, preference in personnel appointments is often given to members of that religious order. In such a case, this preference is based on membership or nonmembership in that religious order and not on the sex of the persons involved. However, since all religious orders are comprised exclusively of either males or females, one might argue, for example, that the preference for a female member of a religious order rather than a male layman for a school principalship would in fact constitutee sexual discrimination.

In a situation such as that described above, it would frustrate the fulfillment of the religious apostolate of the members of the religious order if the school was required to place a man in charge of the school which they are operating. This is not a proprietary consideration but one which directly relates to the maintenance of religious orders and their religious mission.