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CONTENTS

STATEMENTS SUBMITTED TO THE SUBCOMMITTEE ON EQUAL OPPORTUNITI

Bowden, Marie B., national president, Business and Professional Women's

Clubs, Inc., Washington, D.C., letter to Hon. Augustus F. Hawkins,

dated June 20, 1975..

Brown, Dr. Janet W., president-elect, Federation of Organizations for

Professional Women, letter to Chairman Hawkins, dated June 20, 1975.

Caplan, Marvin, director, Washington Office, Leadership Conference on

Civil Rights, Washington, D.C., letter to Chairman Hawkins, dated

June 20, 1975__

Fagan, Clifford B., executive secretary, National Federation of State High

Schools Association, Elgin, Ill., mailgram to Chairman Hawkins..

Fouke, Harry H., president, National Association of Collegiate Directors of

Athletics, Cleveland, Ohio, letter to Chairman Hawkins, dated June 19,

1975..

Harris, James A., president, National Education Association, prepared

statement of..

Ireland, George M., director of athletics, Loyola University of Chicago,
Chicago, Ill., letter to Hon. Augustus F. Hawkins, dated June 16, 1975..
Lambright, Maxie T., athletic director, Louisiana Tech University, inter-
collegiate athletics, Ruston, La., letter to Hon. Augustus F. Hawkins,
dated June 18, 1975---

Lasday, Dorothy, chairwoman, National Affairs Committee, National
Council of Jewish Women, New York, letter to Chairman Hawkins,
dated June 20, 1975___.

McCall, Abner V., president, Baylor University, Waco, Tex., letter to
Chairman Hawkins, dated June 18, 1975__

Murphy, Walter Y., executive vice president, Florida Southern College,
Lakeland, Fla., letter to Chairman Hawkins, dated June 23, 1975........

National Women's Political Caucus, Washington, D.C., prepared state-

ment of

Raffel, Norma, chair, education committee, Women's Equity Action

League, Washington, D.C., letter to Hon. Augustus F. Hawkins, dated

June 26, 1975_-.

Scott, Michael, Cox, Langford and Brown, Washington, D.C., letter to
man Hawkins enclosing statement of Bill Foster, Duke University.
Taylor, William L., director, Center for National Policy Review, Catholic
University of American Law School, Washington, D.C., letter to Chair-
man Hawkins, dated June 20, 1975-

Wiley, Roger C., president, American Alliance for Health, Physical Educa-
tion, and Recreation, letter to Chairman O'Hara, dated June 19, 1975-
Willenz, June A., executive director, American Veterans Committee,
Washington, D.C., letter to Hon. Augustus F. Hawkins, dated June 20,

1975

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57

HEARING ON HOUSE CONCURRENT RESOLUTION 330

(Title IX Regulation)

MONDAY, JULY 14, 1975

HOUSE OF REPRESENTATIVES,

SUBCOMMITTEE ON EQUAL OPPORTUNITIES

OF THE COMMITTEE ON EDUCATION AND LABOR,

Washington, D.C. The subcommittee met, pursuant to notice, at 9:45 a.m. in room 2175, Rayburn House Office Building, Hon. Augustus F. Hawkins (chairman) presiding.

Members present: Representatives Perkins, O'Hara, Hawkins, Clay, Benitez, Miller, Hall, and Buchanan.

Staff present: Susan D. Grayson, staff director; William Higgs, legislative assistant; Carole Schanzer, clerk; and Richard Mosse, assistant minority counsel.

Mr. HAWKINS. The Subcommittee on Equal Opportunities is called to order. The Chair has an opening statement which will be read at this time.

Mr. O'Hara, we will somewhat delay the proceeding until Mr. Buchanan, who is on the way, arrives. Possibly after I have read my opening statement, it may be that he will have arrived. This is the reason for the short delay.

The subcommittee is convened this morning to hear testimony on House Concurrent Resolution 330, disapproving certain provisions of the regulation implementing title IX of the Education Amendments of 1972.

The subcommittee is acting upon a vote on July 9, by the Committee on Education and Labor, to refer House Concurrent Resolution 330 to the Subcommittee on Equal Opportunities for its consideration for 3 legislative days.

Under section 431(d) of the General Education Provisions Act, Congress has 45 days to review the regulation to determine whether it is consistent with the authorizing legislation. Upon a finding of inconsistency, Congress may, by concurrent resolution, disapprove the regulation.

The concurrent resolution before us cites three provisions of the title IX regulation as inconsistent with the statute: Section 83.3 (c) and (d), requiring recipient institutions to conduct self-evaluation and maintain records; section 86.8, requiring the institutions to adopt a grievance procedure; and section 86.12 (b), requiring religious institutions to submit a statement identifying the provisions of the regulation which conflict with a specific religious tenet in order to claim an exemption.

(1)

Though none of us is entirely satisfied with all the provisions of this regulation implementing title IX, our duty is to examine the provisions, in particular the three cited as inconsistent in the concurrent resolution, to determine their consistency with the authorizing statute.

[Text of H. Con. Res. 330 follows:]

CONCURRENT RESOLUTION

[H. Con. Res. 330, 94th Cong., 1st sess.]

Whereas the Secretary of Health, Education, and Welfare on June 4, 1975, submitted to the President of the Senate and the Speaker of the House of Representatives certain regulations for the implementation of certain sections of title IX of the Education Amendments of 1972, pursuant to the Secretary's duty under section 431 of the General Education Provisions Act; and Whereas the Congress, in the exercise of its authority under article I of the Constitution and in accordance with the procedure established by said section of the General Education Provisions Act for the safeguarding of that authority, has reviewed said regulations and finds certain of them inconsistent with the Act from which they must derive their authority, as follows:

(1) subsections 86.3 (c) and (d), requiring each recipient educational institution to conduct a self-evaluation and maintain records thereof, are inconsistent with the Act since there is no authority contained in the Act for such a requirement,

(2) section 86.8, requiring each recipient to adopt and public grievance procedures providing for resolution of student and employee complaints is inconsistent with the Act, since there is no authority contained in the Act for such a requirement, and

(3) section 86.12 (b), requiring an educational institution to claim a religious exemption is inconsistent with the Act, since section 901 (a) (3) specifically exempts educational institutions from coverage under subsection (a) and would not require an institution to be forced to petition or claim such exemption from the Department of Health, Education, and Welfare: Now, therefore, be it

Resolved by the House of Representatives (the Senate concurring), That those regulations, submitted to the Congress on June 4, 1975, proposing to add subsections 86.3 (c) and (d) and section 86.8 and section 86.12 (b), part 86 to title 45 of the Code of Federal Regulations, for the implementation of title IX of the Education Amendments of 1972, are disapproved by the Congress on the grounds of their inconsistency with the Act from which they derive their authority, as set forth in the preamble to this resolution, and are returned to the Secretary of Health, Education, and Welfare to be modified or otherwise disposed of as provided in section 431(e) of the General Education Provisions Act.

Mr. HAWKINS. As our first witness this morning, the subcommittee welcomes the chairman of the Subcommittee on Postsecondary Education, and the author of House Concurrent Resolution 330, Mr. James G. O'Hara, the Representative from the 12th District in Michigan. Mr. O'Hara, I am quite sure that Mr. Buchanan will be joining us very shortly. Unless you wish to delay the start of hearing until he arrives, I would certainly welcome at this time your statement in support of the resolution.

STATEMENT OF HON. JAMES G. O'HARA, U.S. REPRESENTATIVE

FROM MICHIGAN

Mr. O'HARA. Thank you very much, Mr. Chairman, for this opportunity. I will proceed now, and I certainly will be happy to answer any questions that Mr. Buchanan might have with respect to matters about which I will have testified before his arrival.

Mr. Chairman, I appreciate this opportunity to appear at your subcommittee's hearing on House Concurrent Resolution 330. This concurrent resolution deals with an important subject matter in and of itself, but the procedural and constitutional questions involved are even more significant. So I will turn my attention first to those issues. House Concurrent Resolution 330 is the first example of the exercise by Congress of a new procedure, created by law in the summer of 1974, designed to safeguard the exercise by the Congress of its most fundamental constitutional duty.

The very first sentence of the Constitution of the United States says: "All legislative powers herein granted shall be vested in a Congress of the United States, which shall consist of a Senate and House of Representatives."

That Constitution, which we have taken an oath to protect and defend, gives the executive branch the duty to see that the laws are faithfully executed, and it gives to the judiciary the right to determine cases and controversies arising under those laws.

But to the Congress, and to the Congress alone, it gives the right to make law.

This was not an accident, Mr. Chairman. The men who wrote the Constitution knew from bitter experience that the authority to make law had to be kept jealously guarded in the hands of those who could be held responsible to the people.

They did not assume that the Congress would be necessarily possessed of greater wisdom than the employees of the executive branch, or the judges. They did not believe that the Members of the Congress would be more benevolent, more understanding, more selfless than their fellow citizens. It was not for any of these reasons that they gave the exclusive and unshared legislative power to the Congress.

They gave that authority to the Congress because the Congress is answerable, at very frequent intervals, to the people from whom all government power is borrowed, and to whom its use must always be accountable.

That fundamental constitutional concept of separation of powers has frequently been under attack. And for most of the time any of us have been in this Congress, it has been under unremitting attack. The attacks were not begun in this administration, nor in its ill-fated predecessor. But the efforts of the executive branch to assume the power to make the law, to rise above the law when its policies suggested it, and to violate the law when it thought it was doing so in a good cause, certainly rose to a crescendo in the last 6 years-and led directly to the constitutional crisis which was so narrowly avoided less than a year ago.

The attack on the right of the Congress to make the law, and on the duty of the executive branch to abide by the law, did not, of course, take the form of a violent coup d'etat. There were no 7 days in some recent May, with armed hordes of GS-12's charging Capitol Hill to oust the Representatives and Senators from their work. It didn't even take the form of flamboyant defiance of the express prohibitions of the law.

The assault was more insidious and more difficult to resist than an outright confrontation. The bureaucracy doesn't simply tell us to buzz off while they do what they think is right. No: very politely and with a great outward show of deference, they take the laws and busily

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