Also in question is Section 902 which deals with the scope of HEW's termination authority. Can HEW terminate all Federal financial assistance received by an educational institution which is found to be in violation of the law, only that financial assistance which goes directly to a specific program which discriminates, or can HEW terminate funds to any program which is affected by the overall discrimination in the institution.

Two excellent legal memoranda, one from the American Law Division of the Library of Congress and the other from the Center for National Policy Review at the Catholic University of America's School of Law address the interpretation of Sections 901 and 902. They discuss the similarity between Sections 901 and 902 and Title VI of the Civil Rights Act of 1964. Because almost identical statutory language is used, it seems clear that Title IX would provide the same kind of coverage as Title VI and that the interpretation of Title VI should be a guide for the interpretation of Title IX.

Title VI has been interpreted as prohibiting racial discrimination in all aspects of the educational program in a school district receiving Federal aid. Therefore, in Title IX the term "education program" should also be interpreted in its broadest sense to encompass the entire education program offered by an education institution receiving Federal financial assistance.

Title IX was legislated to "provide equal access to men and women to the educational process and the extracurricular activities of the school: (117 Cong. Rec. 30407) by prohibiting discrimination in employment, admissions with certain exceptions, and in access to the programs and activities of the institution.

The intent of Congress would be defeated by anything but a broad interpretation. A narrow interpretation-that the law prohibits discrimination only in programs directly receiving Federal aid would be virtually impossible to enforce. Federal money in many cases simply can not be traced down to a specific program. Federal revenue sharing funds permeate educational institutions providing direct and indirect aid to all educational programs including athletics. The Commissioner of Basic Education in Pennsylvania said that it was impossible to trace revenue sharing funds and he had to work on the assumption that all educational institutions in the state received some.

If the money could be traced and only programs receiving direct aid were prohibited from discriminating, enforcement would be difficult, if not impossible. For example, Federal money is used to buy a piece of school equipment. Would every class using that particular piece of equipment be obliged not to discrim inate while adjacent classes not using the equipment be allowed to discriminate? Suppose the class used the equipment one semester and not the other. Could they discriminate one semester, but not the other? Imagine the kind of enforcement and record-keeping involved in such a situation!

Many programs not directly receiving Federal monies benefit indirectly from Federal assistance given to institutions for construction programs, development of programs and student aid. Money released because of Federal funding may be reallocated. For example, a school district receives a grant to develop an individual, flexible course of study in high school. Part of teachers and administrative salaries involved in that project could be recaptured and returned to the general funds or be diverted to other programs.

Congress in Section 901 provided a broad general prohibition against sex discrimination in education and then limited its scope by exempting certain institutions from the admission requirement-one aspect of the total program. If Congress had intended the scope of Section 901 to be limited, there would be no need to mention the admission exemptions.

Section 902 of Title IX deals with the scope of authority in terminating funds. Again, the same language is used in this section as in Title VI. In the court case of the Board of Public Instruction of Taylor County, Florida v. Finch, 44 F. 2d (5th Cir. 1969) interpreted Title VI to mean that funds should be cut off to programs directly receiving Federal aid and any other part of the total program which is "infected" by discrimination. The concept of "infection" is discussed in the legal memoranda I mentioned earlier. This concept is as relevant to sex discrimination as it is to race discrimination.

Thus we have in section 901 a general prohibition of sex discrimination and in section 902 a narrowing of the fund termination to those areas where discrimination has affected the program or activity. Any other interpretation would make equal opportunity for girls and women almost impossible to achieve under Title IX.

Athletics: No other area of the Title IX regulations have provoked as much comment, discussion, publicity, and emotion as the section which pertains to athletics. One sports commentator said that Title IX the biggest thing to hit athletics since the invention of the whistle. That will indeed be true if it results in first class citizenship for women in athletics. In no other area of the educational program has the progress toward equal opportunity been more difficult and the inequities more apparent than in interscholastic and intercollegiate athletics.

WEAL has conducted studies of interscholastic sports programs in several states and found that girls programs were grossly underfunded, girls could use the facilities only when not needed or wanted by boys, and there was little inclination to change the situation.

For example: A survey of Pennsylvania, excluding Philadelphia, revealed that 50% of the secondary schools (junior and senior high schools) offered no interscholastic sports programs for girls. In those that did, there was an average of 7 sports offered for boys each year compared to 2.5 for girls. There were no interscholastic programs for girls in the junior high schools although the average junior high school offered 4 interscholastic sports for boys during the year.

A detailed study of one school district in a middle class university community revealed that ten times as much money was spent on the boys as on the girls programs, $74,874 for boys athletics and $7,704 for girls. The junior high schools in that area did not allow girls to use the gyms after school at all because they were used for boys programs. Only when it was pointed out that the school district was in probable violation of the law was any progress made. Girls in Pennsylvania certainly wanted more opportunities. The assistant to the Secretary of Education wrote as early as 1972, "We have been swamped with complaints about girls' lack of access to athletic programs, facilities, equipment and teams."

A study of sex discrimination in the Waco Independent School District of Texas revealed that $250,000 was allocated annually for boys athletics in the junior and senior high schools. The girls program was allocated $970-four tenths of one percent of the boys. Girls were prohibited use of stadiums, athletic fields, equipment and gymnasiums. No interscholastic, intercity or intramural girls' teams were permitted in Waco. An athletic committee was appointed by the school board to recommend changes in athletic policies. They recommended and received approval for an expansion of the boys' programs with an estimated increase of $154,000 annually for that program and no allotment for a girls' athletic program! The need and desire for a girls' program was demonstrated by public protests by several parents' groups and the attempt to organize informally some girls' basketball teams at the junior high level.

The American public has supported athletic programs because it is convinced such activities help develop sound minds and bodies. Yet, half of the studentsgirls and women-are largely excluded. They are deprived the benefits of active sports participation including the opportunity to establish life-time habits of exercise which promote an increased level of good health in adult life.

If participation in competitive sports programs are as beneficial to women as they are to men, why has there been such difficulty in increasing opportunities for women in this area? In large part the answer lies in a statement from the NCA to collegiate athletic directors.

"Finally hammer the impossibility of meeting the requirement of overall program equity for men and women without severe curtailment of men's programs which you have built carefully over the years. . ." It appears that the NCAA is as opposed to the law itself which requires equity as it is opposed to the regulations which determine how equity is to be achieved.

Those of us who have worked directly with school administrators have often heard the same thought. "We can't take anything from the boy's program and there's no money to develop one for girls." Of course, when boys have had virtually all of the money and facilities, sharing will be difficult. Going from preferential treatment to equal treatment will be something of a shock. However, this may be an appropriate time for educational institutions to reassess their total athletic program taking into account the goals of education as well as the interests and needs of all of its students.

It is highly unlikely that women's competitive sports programs will approach the expenditures that the men's programs now enjoy. Equal expenditures for male and female programs are not required by the regulations, only that those females who have an interest be given an equal opportunity at her ability level.

Money is one of the major obstacles in approving the athletic section of the regulations. Therefore, it is important to remember that most of the money now supporting men's sports in colleges and universities throughout the country come from either student activities fees or the educational dollar. According to the March 15, 1974 New York Times, only one athletic department in ten makes a profit. The other nine run at a deficit.

According to the NCAA, the annual deficit of its members in conducting intercollegiate athletic programs in 1974 was $49.5 million. That fact, more than equal opportunity, may "destroy intercollegiate athletics as we have known it".

The NCAA advocates that if all else fails, at least exempt revenue from revenue-producing sports from the requirements of Title IX. Certainly this would be one way to ensure the perpetuation of the status quo.

If an institution were one of the few fortunate ones which makes a profit in a sport as basketball, it could, with such an exemption, award up to about 18 scholarships plus monthly allowances for players, provide recruiting expenses, tutoring and training meals for the team. Awards such as rings, jackets or blankets could be given to players. They could fly the team, bands, families and others to games. Equipment and facilities would be limited only by the amount of profit. Any extravagant expenditure directly or in-directly related to the sport would be allowed. All of this could be done, not because it builds sounder minds and bodies, but because the sport earns money. In contrast, the women's basketball team continues to operate in the same old way-often with no scholarships, certainly no monthly allowances, no recruiting expenses, no tutoring nor training meals. Busing would be provided as well as limited equipment and training facilities. The difference is the women's team doesn't earn a profit. Supporting an exemption for intercollegiate athletic programs because they earn money seems to say that when dollars come in, principle goes out!

Congress has already dealt with this aspect of the regulations. Senator Tower introduced an amendment to the Education Amendments of 1974 specifically exempting revenueproducing intercollegiate athletics from Title IX. It passed the Senate, but was deleted by conference committee and was replaced by the "Javits Amendment" calling for reasonable regulations governing intercoliegiate athletics.

Achieving equal opportunity for women in sports has been further complicated by the differing physiology of women and men. That there are differences we are certain, but if, when and how much those differences should affect the participation of men and women in competitive athletics is not so certain. Research on the physiology of women in sports is relatively recent and many questions are still unanswered. Cultural attitudes and physiological factors have not yet been thoroughly separated. We are entering a largely untested area. There are many different predictions about the best way to achieve equal opportunity in athletics. Experience and measurable results will identify those programs which are most effective.

The courts have given some direction and in general the regulations are compatible with those decisions. The flexibility allowed in the regulations regarding mixed and single-sex competitive athletics may be prudent at this stage.

WEAL believes that, taken as a whole, the Title IX regulations provide a reasonable framework within which Title IX can be implemented and urge that Congress allow these regulations to become effective in July. Then the long overdue and much needed enforcement can begin.

More than 100 years ago at a conference in Pennsylvania, women called for equal educational opportunities for their daughters-a goal not yet achieved. The Title IX regulationse will be a giant step toward that goal!

STATEMENT OF NATIONAL WOMEN'S POLITICAL CAUCUS, WASHINGTON, D.C. The National Women's Political Caucus endorses the final Title IX regulations as released by HEW on June 3, 1975. While disappointed that several of the provisions, particularly with regard to athletics, have been weakened, the Caucus also recognizes that the regulations as they stand are, on the whole, satisfactory. Furthermore, too much time has already passed since passage of Title IX in 1972. If enforced in the true spirit of the Act, the net result of the regulations could be far reaching and beneficial in mitigating the subtle and all-pervasive effects of sex-discrimination in American culture. The Caucus admonishes HEW to remember, however, that the subtle nature of sex discrimination requires a positive and

affirmative role on the part of the Office for Civil Rights in enforcement of the regulations. Clearly, the self-examination on the part of educational institutions suggested by Mr. Weinberger in his June statement, while a highly important aspect of enforcement, cannot begin to identify a process of discrimination which is not only largely unconscious but has long been encouraged and upheld by our American social institutions.

To summarize, the N.W.P.C. stands in support of the June Title IX regulations and hopes that the Office for Civil Rights will enforce them “in a spirit that fully embraces the real purposes of the law."

The N.W.P.C. cannot, however, similarly support HEW's proposed Consolidated Procedural Rules for Administration and Enforcement of Certain Civil Rights Laws and Authorities (45 CFR 81). While recognizing the expanded statutory responsibilities and increased work load of the OCR since the 1960's, the Caucus does not then conclude that HEW would more efficiently meet its responsibilities by being absolved of an essential provision of its original mandate: direct response to individual complain. Indeed, this solution is a simplistic and naive remedy for a highly complex and sophisticated problem.

Furthermore, committed to the proposition that, in a democracy, the law should be responsive to the individual, the Caucus strongly believes that individual citizen complaint is an indispensable and irreplaceable source of information. It is a source from which a civil rights enforcement agency ethically cannot divorce itself. Response to individual complaint should, in fact, serve HEW well in its enforcement responsibilities, for without the subtle threat that a single individual complaint could automatically bring down a full compliance review, educational institutions will not be easily coerced into self-examination and cleansing. Further, individual complaint is the foundation of the time-tested tradition of influence-by-precedent-case. These cases never start as "precedents," but rather find their origin in the common individual grievance. It is well known how quickly some of these cases have become the cornerstone of opinion; merely referring to such a case becomes substantive argument in later cases. Thus, rather than being a wasteful use of staff time and energy, as suggested by the Rules, such individual cases can serve the Department well in time and money saved.

In spite of the obvious need for a balanced combination of complaint response and general compliance reviews for an effective program of enforcement, however, HEW's Rules reveal a discouraging lack of respect for the value of meritorious individual or group complaint. Referring to complaints occasionally as “specious,” "not broadly representative," "disproportionate," and "skewed" in the direction of sex discrimination, the apparent effort is to discredit all individual complaints; while Mr. Holmes himself has stated that almost 50% of the complaints received by the Office for Civil Rights are meritorious.

The Rules state that "individual complaints will continue to be an important factor in scheduling and conducting compliance reviews," but it is difficult to believe that there will be any complaints directed to the Department under these circumstances. It is not difficult to foresee that aggrieved citizens will cease to send letters of complaint to a Department which can offer only a hope that perhaps sometime in the next twelve months the Department may conduct a general compliance review which may or may not take into consideration the individual's specific complaint. This is as much as the drafted Rules require of the Department.

Without individual complaints, what are HEW's alternative sources of information for possible non-compliance? It is not at all clear in the Rules. Educational institutions are admonished to cleanse themselves, institutions are required to develop and maintain their own data to be submitted to the Director on request; but there is no indication of when or on what basis the request will be made. In fact, there is little or no accountability for the methods and responsibilities of either HEW or the institutions in this respect. How are institutions to be chosen for review? On what schedule? We are told only that relieving HEW of its obligation to respond to individual complaints (an original mandate of the Act, but apparently only a problem since Adams v. Weinberger) will allow HEW to take "a more assertive role in planning and effectuating overall civil rights objectives." This Act requires more than a planning and analysis project for enforcement!

Mr. Weinberger is clearly telling us that HEW cannot fulfill its mandates under current Title IV enforcement procedures. The N.W.P.C. agrees that reorganization of HEW's methods, priorities and objectives is clearly in order,

but not at the sacrifice of the Act itself. The Caucus therefore urges Mr. Weinberger to withdraw the drafted Rules as presently submitted, and to re-evaluate HEW's original responsibilities in terms of the full spirit of the Act.

The Caucus suggests that the Office for Civil Rights would profit by consultation on the restructuring of these Rules with one or several of the highly qualified, professionally staffed women's organizations: they, more than anyone, are familiar with the subtleties of sex discrimination.

THE NATIONAL FEDERATION OF BUSINESS AND
PROFESSIONAL WOMEN'S CLUBS, INC.,

Hon. AUGUSTUS F. HAWKINS,

June 20, 1975.

Subcommittee on Equal Opportunities, Committee on Education and Labor, House Office Building Annex, Washington, D.C.

DEAR MR. HAWKINS: We appreciate this opportunity to present our views on the regulations issued by the Department of Health, Education and Welfare for enforcement of Title IX of the Education Amendments of 1972.

Enclosed is our brief statement in which we urge that the regulations be adopted so that implementation of this most important piece of legislation can finally begin.

You have also asked for our views on H.E.W.'s new proposed procedural regulations for handling civil rights complaints. We are still in the process of examining these proposals and are unable to give you a comprehensive answer at this time.

However, our initial reaction is one of great concern about the virtual elimination of individual complaint investigation and resolution by H.E.W.'s Office of Civil Rights.

While we understand that OCR is operating under a very heavy work load, we nevertheless believe it would be a great mistake for individual complaints to be neglected or relegated to second class treatment. If individuals cannot go to the Federal government for enforcement of Federal laws which affect them, then what meaning do these laws have?

We agree with Senator Birch Bayh's recent comment that compliance reviews, if they are conducted thoroughly and enforced properly, can be helpful in attacking systematic discrimination, but they are not a guarantee that justice is being met for an individual or for a particular set of individuals in a given case. Thus, we urge that your Subcommittee exert every effort to get the Department of Health, Education, and Welfare to withdraw these proposed procedural regulations.

We will be happy to supply you with a copy of our formal response to the proposed regulations when it is completed.

Again, thank you for giving us this opportunity to express our opinions to you and your Subcommittee.

Sincerely,

Enclosure.

MARIE B. BOWDEN,
National President.

STATEMENT OF THE NATIONAL FEDERATION OF BUSINESS AND PROFESSIONAL

WOMEN'S CLUBS, INC.

The National Federation of Business and Professional Women's Clubs, Inc., is pleased to have this opportunity to present its views on the final regulations for enforcement of Title IX of the Education Amendments of 1972.

Our organization is composed of nearly 170,000 working women who reside in every one of the 50 states, the District of Columbia, Puerto Rico, and the Virgin Islands.

Ever since our inception in 1919, the National Federation has placed equality of educational opportunity high among its goals. One of our four major Federation objectives is directly related to this subject: To extend opportunities to business and professional women through education along lines of industrial, scientific, and vocational activities.

Many of our members are actively involved in rooting out sex discrimination where it exists in education, and in promoting the development of new opportunities for women to put them on an equal basis with men.

The elimination of sex discrimination in education is a major item on our National Legislative Platform, and we strongly supported passage of Title IX. Because many of our members are teachers and educators, our interest includes equality of educational employment as well as equality of educational opportunity.