Grove City College v. Bell - Oral Argument

ORAL ARGUMENT OF DAVID M. LASCELL, ESQ., ON BEHALF OF THE PETITIONERS

Chief Justice Burger: Thank you, Mr. Justice Brennan.

We will hear arguments first this morning in Grove City College v. Bell.

Mr. Lascell, you may proceed whenever you are ready.

Mr. Lascell: Thank you, Mr. Chief Justice, and may it please the Court:

At issue in this case is whether a private college called Grove City College which seeks to avoid government entanglement, which seeks to remain independent, and which seeks to operate efficiently, must either expel students who receive federal scholarships, or must agree that it is subject to government regulation.

Grove City has never sought nor accepted any federal aid nor grants.

It therefore declined to participate in the BEOG program or any other student assistance program sponsored by state or federal governments.

Unidentified Justice: But that assumes one of the issues in the case, that you have never received any federal funds.

Mr. Lascell: That's correct, Mr. Justice White.

Unidentified Justice: Yes.

Mr. Lascell: But in terms of the statement of the case, that is the position of the college.

Unidentified Justice: All right, that's the position.

Mr. Lascell: The government acknowledged, as a matter of fact, that Grove City was not participating in the BEOG program, but it asked the college to help by supplying forms for students who might be eligible to participator in the BEOG program and by certifying attendance and costs at the college in order that those students might receive those awards.

The government now claims that what Grove City did means that the college is operating a program which receives federal financial assistance.

There is no claim in this case, nor has there ever been any claim, that Grove City discriminates in any way, nor that it claims any right to discriminate.

Now, the issues in the case can be a little confusing, and we have tried to label them for the convenience of the Court in three ways.

First, we have what we call the recipient issue, that is, whether Grove City operates a program which receives federal financial assistance because some of its students receive BEOG grants.

Unidentified Justice: They use the money to pay their tuition?

Mr. Lascell: Perhaps, but certainly not, not... that is a theoretical possibility, Justice White, but I don't think in this case, in fact, that is what happened, nor do I think that that is what could happen.

In this case the government selects the students, the Court will recall--

Unidentified Justice: But you would be here making the same argument if, even if the students were just conduits through which tuition money passed.

Mr. Lascell: --Well, I would be making the same arguments, but in fact, it seems to me that the BEOG grant statute does not contemplate that the students are conduits but instead contemplates that they are ultimate beneficiaries.

Unidentified Justice: That they could use the money for anything they wanted to.

Mr. Lascell: They can use the money for educational purposes--

Unidentified Justice: Right.

Mr. Lascell: --which could include tuition--

Unidentified Justice: Right.

Mr. Lascell: --But in this instance, the two students who are involved in this case in fact did not use that money for tuition.

You will recall that neither student received that money until well after tuition and fee payments were due at the college, and in fact, if we closely examine the BEOG program, it is very evident that that money cannot come to those students until after they are in attendance for the semester which they receive the award because the certification does not occur until after students begin classes.

Under those circumstances, at Grove City, at least, the money which the students receive would not go to the institution but would be used for other educational purposes, whether to repay loans, to take care of housing, to buy books at off-campus stores, other educational purposes allowed by the statute and the regulations.

These BEOG awards go to students who are picked by the government.

The amount of the award is determined by the government.

And in this instance, the award is paid by the government directly to the students and not to the college.

That is the first issue, the recipient issue.

Grove City claims that it is not a recipient, and if the Court agrees, it does not need to consider what we have called issues two and three.

Issue two is the program issue.

What is the program or activity to be regulated if in fact Grove City is a recipient?

Three theories have been offered to this Court.

One is that the program equals the institution, institution-wide program at Grove City or any other college.

That's the government's historical position, and it is the position which was adopted by the Third Circuit.

The second position, the second theory offered to this Court is the one that Grove City offers, that if Grove City is a recipient, the program appropriately to be regulated is the BEOG program itself.

The third theory is a new one which has been offered to this court, and that is that the entire financial aid program of a college like Grove City is that which is to be regulated, including any private money which is a part of that financial aid program.

That's the government's new position, offered for the first time to this Court and never before offered to the college.

That is the program issue, what we have called the program issue.

The third issue, which again needs to be considered only if Grove City is determined to be a recipient, is what we have called the funds termination issue: whether aid to Grove City students can be terminated solely because Grove City refused to execute an assurance of compliance which the government itself now says was overly broad when it asked Grove City to execute it, but which the government also says now can be saved by a new interpretation never before offered to the college and despite the fact that there has never been any claim of discrimination levied against this institution.

Those, therefore, are the three issues which we seek to address, the recipient issue, the program issue, and the funds termination issue.

Turning first to the recipient issue, whether or not Grove City is a recipient of federal financial assistance depends obviously, as this Court well knows, on the language of the statute itself.

Title 9 talks about receiving federal financial assistance and operating a program or activity.

It is the position of the college that receive has plain meaning.

It is not a word which any one of us would have difficulty in understanding were we not lawyers arguing about a case.

Receive has a plain meaning, and to the public and the country receive means to consciously participate, and to receive, to obtain funds.

Grove City does not do that.

In fact, it consciously has chosen not to participate in any federal aid program of any kind, despite the fact that those--

Unidentified Justice: Well, you can certainly... a legatee can certainly receive funds from a testator without having consciously participated at all, and the testator... I don't see why you put consciously participate into your definition of receive.

Mr. Lascell: --Only here, Justice, because I think that the grant program contemplates some deliberate action on the part of the college.

I don't disagree that a legatee could receive something without doing anything except being there.

But in this instance, I think that the scope of the grant statute itself contemplates some activity.

Unidentified Justice: Then you are not talking about the generic meaning of the word "receive".

You are talking about the word "receive" as it appears in the statute.

Mr. Lascell: That's correct.

That's correct.

Unidentified Justice: Is there any federal statute that the college would be violating if it announced and enforced a policy of refusing to accept any student who received federal aid?

Mr. Lascell: None of which I am aware.

I do not--

Unidentified Justice: Wouldn't that be a discrimination?

Mr. Lascell: --Well, I don't think that it's a discrimination, though, for any protected class.

I think that the college could say we choose to accept only those students who take no federal aid programs.

The difficulty with that, Mr. Chief Justice, is that of the college does that, what it would be doing would be to discriminate in one way, maybe not in a protected way, but discriminate in one way against those students who in fact the Congress chose to help by these aid programs, and certainly in this instance, those students might include minorities, particularly poor minorities who would be unable to attend a college like Grove City even... I'm sorry, without these kinds of aid programs.

That seems anomalous to us because the Congress clearly intended with these aid programs to aid such students.

Unidentified Justice: Does the record give us any breakdown on the composition of the students receiving this particular form of aid at Grove City?

Mr. Lascell: There is very little in the record about that.

Grove City has been, Justice O'Connor, co-educational since its founding, as the Court knows.

At the time that this case arose, 140 of about its 200... 2200 students, received BEOG awards under this alternate disbursal system.

There is, however, nothing in the record which indicates the proportion by which those students were divided, whether by sex, by minority, by race, by religion, by anything else.

Don't forget that that... the reason for that is that the government chooses those students; Grove City does not.

Grove City simply takes the students who were there are allows them to attend once they have received those awards.

The other important point, I think, about Grove City which we should say and which should be clear and which is a part of the record is that its efficiency and operation has resulted in very high quality educational programs at very low cost.

Its tuition fee, room and board costs at the time that this case arose were just over $4000 per year, not per semester as all of us are accustomed to seeing at high quality private, independent universities and colleges in this country.

One of the reasons that it has been able to do that has been because of its refusal to be entangled with any kind of government authority, and at the same time, its refusal as a part of its conscience and heritage, to discriminate against any class of people who wish to attend that institution.

That is something of which the college is very proud, and rightfully so, it seems to me.

Now, the recipient issue is one which we find very difficult.

The Court will recall that at the time Title 9 was enacted, there were in fact three pieces of legislation before the Congress, one a proposal from Senator Bayh, one a proposal from Congresswoman Greene, and one, an administrative proposal, and the Congress made a conscious choice about which of those proposals it chose to accept.

The position of the college is that the proposal which it chose to accept is one which includes a definition of receive which does not encompass this college operating in this way.

The Congress did not say in that statute receive or benefit or assist.

It said receive.

It is only the regulations which expanded that receipt concept to benefit or to assistance.

Unidentified Justice: Well, wasn't the legislation, Title 9, passed as part and parcel of a financial aid bill?

I mean, it was passed in connection with precisely this kind of assistance.

Mr. Lascell: We agree entirely, Justice O'Connor.

Unidentified Justice: And North Haven v. Bell of this Court indicated we give it a broad reading.

So how do you explain that?

And there are references in the legislative record that discuss the intent of the drafters of that legislation.

Mr. Lascell: I agree entirely.

Title 9 was a part of the Education Act's... Education Act of 1972.

There were 20 parts to that act.

Those parts included such things as library grants, as continuing education programs, establishment of a National Institute of Educaton, and among the other 17 which were remaining, both Title 9 and the federal financial assistance program about which we are talking.

Now, the BEOG program was just one small part of that federal financial assistance program.

There were, as the Court will recall, several other parts to that.

The statutory language, the college would agree, should be given as broad a scope as possible under the circumstances.

It is remedial legislation.

Unidentified Justice: Well, do you think then that... all right.

Do you think that the receipt cannot be indirect?

Mr. Lascell: Yes.

Unidentified Justice: Do you think it has to be direct?

Mr. Lascell: I believe that that was the choice which the Congress made.

Unidentified Justice: Well, how do you account for Senator Humphreys' statements to the contrary?

Mr. Lascell: Well, I think that Senator Humphrey's statements related to Title 6, and I think that they also related later to the proposal which Senator Bayh made in 1971, and the Court will recall that between 1971 and 1972 when the legislation was enacted, there was a dramatic change in what was proposed as Title 9.

The '71 version, for instance, applied only to public schools and to private graduate programs, and we know that in the '72 version which was eventually enacted, both those circumstances were eliminated in 1972.

We also know that the administrative proposal, the administration proposal, and the proposal from Representative Greene, were different than that which Senator Bayh had proposed in 1971.

We read that legislative history as very confusing.

It was interesting to me as I reread the briefs this weekend, to see that every one of us, both amici... every amici and every litigant, cited that legislative history from Senator Bayh as supportive of our own positions.

Now, that means to me, Justice O'Connor, that really the only thing that we can examine which shows any clear change or distinction is the differences, or are the differences between the '71 legislation and the '72 legislation which was enacted.

And it is the college's position that in that change it became as clear as we can hope that recipient under these circumstances did not mean beneficiary or did not mean... did not mean benefit or did not mean assistance.

We do not believe, by the way, that that interpretation of the statute means that discrimination will affect American higher education in ways that would be entirely improper, nor do we believe that that means the end of Title 9 enforcement.

We simply do not think that that's correct.

This Court acknowledged in North Haven the Finch reading of infection, it has done so before, and that is the position with which this college agrees.

This college does not discriminate and does not think that other colleges should, and thinks that if a program is infected by discriminatory practices, then the assistance to the federally funded program can and should be terminated.

That is a position which we will advocate for the remainder of the life of this college.

Unidentified Justice: Counsel, if the government prevails here, what will be in your view the effect upon women's colleges that are still women's colleges, like Wilson and Mt.

Holyoke, and others?

Mr. Lascell: And Wells, Your Honor.

I say that dear to my heart.

I chair the board of a women's college so that this is an argument about which I have some great personal concern.

I think if the government prevails here in this case, that the effect... that there will be no effect on women's undergraduate institutions.

The Court will of course recall that Title 9 exempts that.

Private, single-sex institutions are exempt from the enforcement provisions of Title 9 currently, and I believe as well that with a narrow reading of this Court's decision in the Mississippi College case, that that can continue, so that I don't see that that will be a problem here.

What I think is important, and what I think Congress did when it enacted Title 9, was to balance two very important concerns, exceptionally important; one, to prevent gender discrimination in post-secondary education in the United States; and at the same time, by very carefully constructing that Education Act of 1972, by attempting to preserve diversity in American higher education.

Not everyone, Justice Blackmun, would think that a single-sex college is appropriate.

Not everyone would think that what Grove City believes is appropriate.

But the significance of those events, the significance of that diversity in American higher education I believe is what Congress carefully chose to do as it balanced those interests in 1972.

The second issue, of course, if the Court determines that Grove City is a recipient, is the program specificity issue.

Unidentified Justice: May I ask one question before you leave this?

Mr. Lascell: Yes, Justice Stevens.

Unidentified Justice: You take the position the regulation is invalid?

Mr. Lascell: Yes, I do, as it is applied.

Unidentified Justice: Right.

Mr. Lascell: The second issue is the program specificity issue.

There are, as I mentioned in the beginning, three theories which have been propounded to the Court, one, that the program equals the institution; second, that the program is the BEOG program itself; and third, the new government position that the entire financial aid program, including private money, is the program which is to be regulated if Grove City is a recipient.

The program, so far as we can tell from our examination of Title 9 and from the contemporaneous history and from the statements of the commentators, the program is defined and limited by the purpose of the underlying grant statute.

That is what determines what is to be regulated.

And I think that we find support in that if we examine the funds termination provision.

The Court will recall that the funds termination provision includes a section which says that before funds can be terminated, the committee, the congressional committee having responsibility for the program must be notified of that proposed termination.

We think that that linkage is significant.

The committee having responsibility must be notified in order for the program funds to be terminated.

We think that the statute and this Court's interpretation in North Haven mean that the program itself is to be regulated, and that the program is defined by the grant statute involved.

Here the grant statute is the BEOG program statute, and it is therefore the college's position that it is that program which is to be regulated.

The third issue is the funds termination issue.

Unidentified Justice: Well, what's the upshot of your second argument, that that's the program that should be regulated?

Mr. Lascell: That if the college, Justice... I'm sorry, if the Court determines that Grove City College is a recipient of federal financial assistance--

Unidentified Justice: I get it now.

Mr. Lascell: --Then the program which is appropriately regulated is only the BEOG program.

Unidentified Justice: And therefore?

Mr. Lascell: And therefore that the regulations and the enforcement of the regulations which the government propounds which says that that entire college is to be regulated, is incorrect.

Unidentified Justice: Well, you would say, though, that the college could be forced to, if we get this far, that the college could be forced to execute some kind of a piece of paper--

Mr. Lascell: I would say that--

Unidentified Justice: --With respect to that program.

Mr. Lascell: --That's correct.

If there were a program specific assurance of compliance correctly drafted, which we say that the one involved in this case is not, then the college could be required to execute that with respect to its operation--

Unidentified Justice: Well, the government seems to think that its request was overbroad in the first place.

Mr. Lascell: --I think that's correct.

That's the first time, of course, that that has been said as we came through the Third Circuit--

Unidentified Justice: But they... but they still insist on something broader than you think is necessary, even if you are a recipient.

Mr. Lascell: --I think that's exactly correct, exactly correct.

The third issue is the funds termination issue.

The claim of the government is that it can terminate the funds of these students even though Grove City doesn't discriminate and even though there is this overly admittedly broad, or admittedly overly broad assurance of compliance.

The position of the college is that that is fundamentally unfair to the beneficiaries of this grant statute.

There has never been a claim of discrimination here.

There is an admittedly overly broad assurance of compliance, and yet the government still claims a right to terminate this assistance.

Unidentified Justice: Well, what if... what if you're a recipient, and what if the program is the grant program and you then refuse to executel the proper kind of a piece of paper limited to that program?

Could the government then terminate the funds to the student?

Mr. Lascell: I think that the contemplation of the Congress has been that funds termination is to be exercised only as a last resort.

Unidentified Justice: Well--

Mr. Lascell: A last remedy.

Unidentified Justice: --So what if they got to the last resort?

Mr. Lascell: Well, I don't think what the Court has just suggested to me is the last resort.

There could be a proceeding before that--

Unidentified Justice: Well, it may be, but all of that is out of the way, and we get down... your position is--

Mr. Lascell: --Then the answer to the question is yes.

Unidentified Justice: --And I thought your position was that fund termination would never be proper in case of a refusal to execute this piece of paper.

Mr. Lascell: No, if it were a last resort which the Court has now suggested in its hypothetical, then I think it would be appropriate, after the other proceedings have been exhausted.

Thank you, Mr. Chief Justice.

I will reserve some time for more questions.

Unidentified Justice: May I ask because I don't really understand, I don't find any... there is really nothing to your third argument, then, is there?

If you were wrong on the first two arguments, you wouldn't really even make the third argument.

Mr. Lascell: That's absolutely correct, Justice Stevens.

Unidentified Justice: So we can really just ignore that third argument.

Mr. Lascell: Well, I hope that you won't because I think it's unfair to the students who are involved here.

[Laughter]

Unidentified Justice: But only if you're right on one of the other two.

Mr. Lascell: That's correct.

Unidentified Justice: In which event we don't need to reach it.

Mr. Lascell: They are absolutely intertwined and interrelated.

Unidentified Justice: Okay.

Mr. Lascell: Thank you.

Chief Justice Burger: Mr. Bator?

ORAL ARGUMENT OF PAUL M. BATOR, ESQ., ON BEHALF OF THE RESPONDENT

Mr. Bator: Mr. Chief Justice, and may it please the Court:

The government's position in this case is that Grove City College does conduct an education program or activity that receives federal financial assistance within the meaning of Title 9.

Title 9 doesn't say that the college has to receive funds.

It says it has to conduct a program that receives financial assistance.

The purpose of Title 9 is to assure that education programs that are subsidized by federal money will not discriminate.

We think that the government's BEOG grants, whether they funnel through the college or whether they go directly to the students, directly and unequivocally subsidize a financial aid program and scholarship program at Grove City.

Unidentified Justice: What if a person is on some kind of a welfare program, any kind of a program that funnels federal funds, and they are received by an individual, and that individual then decides to go to the local secretary school to learn to become a secretary, is that institution then receiving federal funds, the secretarial school?

Mr. Bator: If the money that goes out is like Social Security funds or some other kind of totally un... not directed, that is, not... it's purpose is not to subsidize a feature of the educational program, we would think that it would be rather difficult, although there might be close cases, Mr. Chief Justice, depending on the situation.

There are complicated or mixed cases.

Unidentified Justice: Well, what would be close about a Social Security recipient?

Mr. Bator: The Social Security recipient... just because a Social Security recipient goes to college would not mean that the college is receiving federal financial assistance.

Unidentified Justice: Are food stamps used to pay for the food in the cafeteria?

Mr. Bator: No.

I think that would be a very... I don't think that that would be covered.

The big thing about the BEOG program--

Unidentified Justice: Well, it is certainly subsidizing... if you want to talk just about resultant aid, I don't know how you distinguish that case.

Mr. Bator: --We are talking about a mix of result and purpose.

The purpose of the BEOG program is to subsidize something that colleges are in the business of doing, which is to provide financial aid in order to better improve their admissions program.

It is... it is as conventional a feature of an educational enterprise to have a scholarship program as it is to have an athletic program--

Unidentified Justice: Well, colleges provide dormitories, they provide food, and a person uses Social Security money to pay for his... to pay his board and room to the college.

Mr. Bator: --Your Honor, the Social Security money that the federal government is sending out does not have as a constituent purpose the purpose of subsidizing an educational program.

Unidentified Justice: It certainly includes that.

It certainly includes that as long as people are free to use it to pay board and room to a college.

Mr. Bator: It may have that economic effect.

Unidentified Justice: May?

It certainly does.

How can you say it doesn't?

Mr. Bator: But, Your Honor, the difficulty is that if we... if we interpret--

Unidentified Justice: I know it's difficult--

[Laughter]

Mr. Bator: --If we interpret this statute as encompassing the ripple effects of every federal intervention in the economy, the statute will go way beyond what Congress was contemplating as to some extent.

Unidentified Justice: I agree with you.

That sometimes happens with acts of Congress, doesn't it?

[Laughter]

Mr. Bator: I think we can walk the plank here on a middle line.

We can say that this statute, Title 9, which as Justice O'Connor said was enacted in the content of Congress' creating the BEOG program at a time when Congress, as the legislative history shows, was extremely concerned about discrimination in the provision of financial aid and scholarships, that was not a marginal concern.

That was a central concern.

Unidentified Justice: Mr. Bator, my hypothetical question did not focus on Social Security or anything of that kind but on a straight welfare grant.

Social Security is something to which contributions are made, and I would distinguish it.

Do you take that position with respect to an unlimited, voluntary grant by the federal government for which the recipient has tendered no consideration by way of contributions?

Mr. Bator: No, Your Honor, we cannot go that for.

That is, we cannot say that every time the federal government gives somebody money and that person buys something with that money, that that is financial assistance to the vendor.

Unidentified Justice: You are pretty close... the federal government is pretty close to it right here.

Mr. Bator: No, Your Honor, we think that the key limiting conception here must be whether the federal money subsidizes a program and is designed to subsidize a program that is a part, that is designed to aid that program.

Unidentified Justice: So an aid to dependent children that is keyed to whether a person is in school or not is... you get it if you are in school and you don't get it if you aren't.

Mr. Bator: If it is... if the federal government gives scholarship money to dependent children--

Unidentified Justice: It isn't scholarship money.

It is just that you get... there's aid provided to the family if this child is in college, and it isn't provided if he isn't.

Mr. Bator: --If the money is restricted so that it must be used for purposes of an education, then we think it is assistance to the educational institution.

Justice White, I think that Grove City way overstates its distance from this program, even though the program is channelled to the students.

To read to--

Unidentified Justice: What about the answer to Justice White's question?

Supposing that someone is enrolled in college and as a result of that they get Aid to Dependent Children, now, would that result... would that mean that the college was regarded as federally... receiving federal funds?

Mr. Bator: --No.

I think the answer is no.

Justice White's question I think hypothesized a variant of Aid to Dependent Children that is earmarked for spending that money--

Unidentified Justice: No, you just get it, no, you just get... the money is paid to the family if a child is in school, and--

Mr. Bator: --If it is totally unrestricted money--

Unidentified Justice: --and isn't paid if it isn't.

But the person has to be in college to get it.

And this is unrestricted money.

Mr. Bator: --But that distinguishes it from BEOGs.

That is really the point I was about to make.

It is not the case, as Grove City seems to be saying, that the federal government just sends this money out and the students are free to do whatever they want with it.

the purpose of these grants is to finance students' education at Grove City.

The amount is measured by the cost of education, tuition, food, lodging, books.

The federal government limits the amount, but the cost is figured on the basis of the actual expenses at the actual college.

If the student just takes this money off and... Grove City has to certify that this student is a student at Grove City.

It is not really quite accurate to say that the federal government chooses the students.

The students have to be admitted to Grove City.

That is the relevant population.

That is, the federal government cannot say we are hurling a student at you.

The admissions program is run by Grove City.

Now, I want to make one other point about Grove City's admission in this case, and we do respect their sincerity in saying that they want to stay out of the clutches of the federal government, and they say it is harsh and unfair that we who do not want federal aid have to be engulfed in this federal embrace just because our students show up here with federal dollars in their pockets.

I think the answer to that, Your Honor, is that it is quite easy for Grove City to stay out of the federal embrace.

All they have to do is to say to their students, don't take federal scholarship money; we will give you our scholarship money.

That's exactly what they would have had to do before '72 when there was federal scholarship money.

They would have had to go to their own alumni and support groups--

Unidentified Justice: Do you think that the college would violate any federal statute if it announced and enforced a program of refusing to admit any student or retain any student who accepted federal aid?

Mr. Bator: --Your Honor, it certainly would not be if it gave equivalent scholarship aid of its own.

If it didn't have that--

Unidentified Justice: No, that's not my hypothetical.

Mr. Bator: --I understand.

Unidentified Justice: They simply say we aren't going to get entangled with the federal government, and any student that gets federal aid is out.

Mr. Bator: I think it has got to be our position and is our position that the college must be free to opt out in that way.

It must be free to opt out in that way.

Unidentified Justice: Because you in effect tell them either file this piece of paper or expel the students.

Mr. Bator: Your Honor, it isn't really that we are expelling the students.

We are saying that Grove City is free to go back to the pre-federal aid days, which is exactly where it says it wants to be.

Unidentified Justice: Well, you also say it is free to expel the students.

Mr. Bator: Prior to '72 Grove City was in a position in which if a student couldn't get private scholarship aid, there wasn't any government aid, you couldn't come to college.

Unidentified Justice: Mr. Bator, you have been addressing primarily whether this program is fair to the college, but what do you think about the fairness with respect to the student who may be foreclosed the opportunity to attend the college of his or her choice?

Mr. Bator: That is true, it has that effect, that the student either has to find scholarship money elsewhere or go to a different college.

Unidentified Justice: Does that deprivation of liberty seem unfair to the government of the United States?

Mr. Bator: Well, Your Honor, it does not seem unfair to us in light of what we are asking Grove City to do.

Unidentified Justice: But we are not just talking about Grove City.

Perhaps Grove City is unique.

It certainly has never discriminated against anybody according to the record, and it seems to me that--

Mr. Bator: Your Honor, we are asking Grove City to certify that it is not discriminating in its scholarship program.

Now, that seems to us not to be a harsh quid pro quo in return for the federal government subsidy of that program.

Now, if Grove City does not want to be harsh to its students, it can go to private sector and raise its own scholarship money.

Unidentified Justice: --The certificate, though, the certificate though would make the college confess that it is subject to this law.

Mr. Bator: The assurance of compliance simply asks the college to say that insofar as the law is applicable, we assure that we will comply with it.

Unidentified Justice: Yes, but it would also involve that then the federal government could invoke all the rigamarole of the statute against the college if it happened to think it was discriminating.

Mr. Bator: Your Honor, our position is... and this leads us to the second branch of this case... that the coverage of Grove City's financial aid and scholarship program, including its own, does not automatically trigger college-wide coverage.

It is at that stage of our submission that we try to meet Congress' other purpose in this statute.

Unidentified Justice: Well, are you suggesting the regulation is invalid?

Mr. Bator: No, Your Honor.

Unidentified Justice: To any extent?

Mr. Bator: Your Honor, we think that this Court should do here exactly what it did in North Haven, and which is what the government is doing.

Unidentified Justice: You mean construe it.

Mr. Bator: To construe it according to its terms.

Unidentified Justice: Construe it... well, I hadn't thought your position was this prior to now.

Has the government--

Mr. Bator: Our position has not been a monolith.

Unidentified Justice: --You've been defending the regulation in its broadest reading.

Mr. Bator: We are not defending the regulation in its broadest possible reading.

We are defending the regulation as we think it ought to be read in light of this Court's language in North Haven, and we are really doing exactly what the Court itself did in North Haven, which is to say to read this regulation not in order to render it invalid, but to render it valid in light of the Court's reading of the statute.

Unidentified Justice: What has been the agency's position?

Mr. Bator: The agency's position--

Unidentified Justice: That issue the regulation.

What is their position?

Mr. Bator: --Historically, the agency's position for a certain time in the mid-'70s was that financial aid triggers collegewide coverage.

Unidentified Justice: Collegewide, and that was a contemporary construction.

Mr. Bator: No, Your Honor, that was a '75-'76 construction.

Unidentified Justice: Well, it was early, anyway.

Mr. Bator: Right.

Unidentified Justice: Earlier than now.

Mr. Bator: It was before this Court's opinion in North Haven.

But I don't want to quibble with you, Justice White, there has been here a restudy and a reconsideration of this matter.

What led us to that, I think, is exactly what led the Court to its language in North Haven which is that the contrary position, that is, that if one student with one dollar of BEOG money shows up at this college, that triggers collegewide coverage.

The difficulty with that--

Unidentified Justice: So tell me again, what coverage do you think is triggered by the acceptance of these monies, the entire grant program of the college?

Mr. Bator: --We think that the entire scholarship and grant program of the college is covered.

Unidentified Justice: And therefore the college could not discriminate in giving out those grants.

Mr. Bator: In any way in dispensing scholarship aid.

Unidentified Justice: How about hiring people who dispense the scholarship aid?

Mr. Bator: That would also be covered.

Hiring, of course, would be covered independently on a non-program specific basis in any event because Title 7 applies.

Unidentified Justice: Yes.

Could you tell us what would not be covered?

You said the entire grant aid program would be covered, but if a student, for example, has a loan and that student attended, as usually happens, 20 or 30 classes in different areas of learning during his four years, would each of those classes be covered simply because a student attended it?

Mr. Bator: No, Your Honor, we, we... uncomfortable as it is, our position is that the--

Unidentified Justice: What would the limits be?

Mr. Bator: --the money does not follow the student around to every activity the student engages in.

Unidentified Justice: What would the limits be?

Mr. Bator: Our submission, Your Honor, is that the central question to ask is what program does the federal government subsidize here?

Now, we think the program is the scholarship program and not the math department and the athletic department.

Unidentified Justice: Well, in practical terms, you are the president of the university, what do you do?

Mr. Bator: In practical terms, if I am trying to limit--

Unidentified Justice: Yes.

Mr. Bator: --The federal coverage as much as possible--

Unidentified Justice: Yes.

Mr. Bator: --I would execute the assurance of the compliance and insist that the federal regulatory intervention be limited to investigations of the scholarship and financial aid program.

Unidentified Justice: Well--

Mr. Bator: We also, I should add, just to complete the statement of the government's position, that it is also the government's position that presumptively, at least, discrimination in admissions is a form of discrimination that infects all of the activities of the college so that wherever federal aid goes, discrimination in admissions--

Unidentified Justice: --What about discrimination in employment, the city... the school janitor?

Mr. Bator: --Looking only at Title 9, our position is, as the Court said in North Haven, that Title 9 deals with employment discrimination only on the same program-specific basis.

But that problem is dissolved by the fact that Grove City, whoever wins this case, is in any event covered by Title 7 and may not in any way discriminate in its employment.

Unidentified Justice: When you... I take it, then, you say that even though you are supposedly limiting your submission to the entire grant-in-aid program, that includes the entire admissions program.

Mr. Bator: In effect, our position is that unless Congress has--

Unidentified Justice: With respect to any student who receives any of this aid.

Mr. Bator: --Yes.

Your Honor, that has a special application in the case of Grove City and private undergraduate colleges.

That is, the government's position is that unless the statute explicitly exempts admissions from Title 9, discrimination in admissions infects the entire operation.

Now, it happens that private undergraduate colleges are explicitly exempted in their admissions so that Grove City does not have to, as it were, is not swept up in this aspect of the government's position.

Unidentified Justice: You have already told us, Mr. Bator, that Grove City College could announce and enforce a policy of rejecting any student who accepts aid.

Now, that would hit a certain category of people who can't afford to pay their own way.

Wouldn't that be a discrimination in itself?

Mr. Bator: Your Honor, in a sense, empirically it is a discrimination, but we are caught here in this dilemma, that it's the kind of discrimination that existed before the federal government created this program.

That is, you either got private scholarship money, or if you couldn't afford it, you couldn't go.

Now, the federal government has come into this situation with this special kind of statute provision that says we will held finance scholarship aid for you, but what we want in return is an assurance that you do not put your scholarship program on a discriminatory basis.

Now, we don't think that that is a harsh or terrible thing.

In fact, we are being cudgeled also on the ground that that doesn't go far enough because we are being told that that leaves open the possibility that there will be discrimination in other parts of the college, and many of the amici asked the question, well, how can it be that Congress would have wished a student with federal money to show up in a college which discriminates in certain of its parts?

And I think our answer to that must be, Your Honor, that Congress in '72 was not thinking of this statute as whether you are for or against discrimination.

It seems to me we must say and it is clear that Congress opposed discrimination in all its forms, but--

Unidentified Justice: Could you give me an example of what a discrimination in the grant program might consist of?

Mr. Bator: --Well, as the '72 and '71--

Unidentified Justice: It certainly couldn't be with respect to someone who is getting federal aid.

I take it the federal government wouldn't be discriminating.

Mr. Bator: --Well, Your Honor, even with respect to the dispensing of federal aid, if the college's certification of students, if it used a... I mean, this would be a sinister case--

Unidentified Justice: Yes.

Mr. Bator: --But if the college in its certification of the question whether the student is in good standing, if it used different rules for men and women, that would affect even the federal program.

But what is really at issue here is what Congress found historically to have been occurring at universities prior to '71 and '72.

Unidentified Justice: May I ask a specific question?

Supposing they gave football scholarships but no scholarships for female athletes?

Mr. Bator: If men students get more scholarship aid than women students--

Unidentified Justice: My specific example, football scholarships, and they only have men on the football team, would that be covered by your submission?

Mr. Bator: --That would be covered.

That is, athletic scholarships cannot be a device for favoring men over women.

That is clearly a part of our submission?

And Congress in '71 and '72 found that one of the major problems of discrimination in American education was that men were getting higher scholarships and better financial aid than women, and that's what Congress wanted to end.

Unidentified Justice: May I ask one other question?

You said... I think you said that you would say the regulations are all valid as they stand, including the definition of recipient and all the other provisions?

Mr. Bator: Your Honor, we think that the regulations as currently construed and as we understand we would enforce them are all valid.

Unidentified Justice: As currently written.

Mr. Bator: Yes, that is our submission.

Unidentified Justice: If we construe them as you suggest.

Mr. Bator: The regulations have this funny circularity in them in that they say... in effect, they say this regulation applies insofar as it is valid.

That's built into the regulation.

So there is, if you will, a circularity in the regulation that permits some--

Unidentified Justice: But you wouldn't have to reach that.

You would just construe it narrowly.

Mr. Bator: --Right.

Unidentified Justice: So you would never have to wonder whether it is valid or not.

[Laughter]

Mr. Bator: The regulation says that Grove City must comply with Title 9 insofar as it applies.

Unidentified Justice: That can't be invalid, can it?

Mr. Bator: No, no, no.

[Laughter]

That's the pithy way of putting it.

Unidentified Justice: In the government's opposition to the petition for certiorari, it said that the proper interpretation of the program-specific question was not at stake in the Court of Appeals and we shouldn't reach it.

Now the government has briefed it and is arguing it.

Suppose that the Court were to agree with the government's position as to who is a recipient, what should the Court do with the program-specific question which I thought the government had argued we shouldn't reach?

Mr. Bator: Your Honor, there is a part of it which the Court has to reach in view of Grove City's argument.

It is the case that we in our opposition said that the Court does not necessarily have to define the relevant program, if Grove City is a recipient, it doesn't have to completely answer the question of the relevant program.

I think the Court does have to at least say that there is a relevant program that is receiving federal financial assistance, so the Court does at least have to say that the financial aid program or some part of it is a relevant program.

The Court does not have to go on and say whether there is broader spillover coverage in this case.

We felt after our opposition the Court did grant cert, and one of the questions presented was this question of the relevant program.

So we did feel duty-bound to brief and indicate what the government's enforcement philosophy with respect to Grove City would be.

Unidentified Justice: Would they comply with your demand for a certificate if they executed a piece of paper that said we are in compliance with Title 9 insofar as it applies?

[Laughter]

Validly applies.

Mr. Bator: Your Honor, in effect, if you read the compliance certificate that was offered to them, which is printed in the Appendix to the Petition, that in effect is what it says.

Unidentified Justice: So your answer is yes, that would be all they have to do.

Mr. Bator: That is really all that is at stake here.

They took the position, and they have a little bit, I think, put a slightly different--

Unidentified Justice: I thought at the close of your opponent's argument he in effect said he would be willing to sign that certificate.

Mr. Bator: --They certainly were unwilling to sign it when they thought that the government's interpretation of that would be that it would lead to institutionwide coverage.

Your Honor, on the other hand, we are not willing to live with the proposition that only the federally financed BEOG program is the relevant program.

Actually, in their brief and in the Court of Appeals, the petitioners here have argued that there is no relevant program at Grove City, that it is not conducting any program.

Unidentified Justice: Well, that's part of the recipient.

Mr. Bator: No, no, even on the program specificity point, they are saying there is no, no relevant program.

That is why that is an interesting feature of this case, Your Honors, that the Court of Appeals in Grove City came into this court more or less saying its all or nothing: there is either no program or the whole college is the program.

Now, that then led them to diametrically opposite conclusions.

Grove City said it's got to be nothing because if it's all, that destroys program specificity.

The Court of Appeals said it's got to be all because if it's nothing, it leads to this weird conclusion that the broader the grant, the less the coverage.

Now, it is that dilemma that the government seeks to dissolve by attacking its premise, which is that it's got to be all or nothing.

I want to go back to what it seems to me, at least in my thinking and emotions about this case, is a difficult point.

It is the one that I was led to by Justice Powell's questions, which is how can we suppose that Congress created a statute which would permit discrimination to continue in some part of an institution which had students with federal scholarships?

Our answer to that is that although Congress was opposed to discrimination in all its forms, what Congress was thinking about in '72 was not whether to be for or against discrimination in the abstract, but bow broad a federal regulatory intervention should be authorized, because regulation is... always has an element of overkill and overenforcement.

And what Congress decided in that statute... and there was a very definite shift from '71 which was institutionwide, to '72, Congress decided in '72 that the regulatory intervention should be this more surgical intervention.

Now--

Unidentified Justice: Well, they had some concern about, I suppose, about their authority to intervene, if the... I take it that if... you suggest or seem to concede that if Grove City just wouldn't accept any students accepting federal funds, federal intervention would be nil, except for the Title 7.

Mr. Bator: --I think, Your Honor, they were worried about that, but they were also worried about the breadth of intervention on the Court of Appeals theory of this case, which is a dollar of federal aid anywhere sets up this economic ripple effect and leads to regulation on a pervasive basis.

And we think that Congress, the size of the gap that is left by the government's theory should not be overstated because subsidized programs are covered, we think admissions are covered unless explicitly exempted.

Congress had in mind, too, that there are other laws in play here, Title 7, the Constitution is in play in the case of public institutions, as we learned from Justice O'Connor's opinion in the Mississippi Nursing case, state law is in play, and there are fundamental ethical laws here that are in play that for some of us, I hope a lot of us, mean that we don't discriminate, whatever the statute says.

What we are trying to do here is to reconcile a complex assortment of purposes.

Congress wanted to end discrimination in the handing out of financial aid.

There is no doubt about that.

Unidentified Justice: Why wouldn't the purposes of Congress be satisfied if the application of these restraints or limitations were confined to benefits received by the college for which the college had made an application, an affirmative application?

Mr. Bator: Your Honor, I think we think that if the college benefits in the sense of this subsidy, that it has to do more than just refrain from the formality of an application.

It is really required to undergo a greater abnegation here.

It is required, in effect, I think it is required to go to its own supporters and to put its own money where its mouth is, which is to raise private scholarship funds.

Unidentified Justice: Well, if a student's family receives food stamps, that maybe relieves the student of the necessity for taking part time jobs, and therefore there is an indirect federal aid, is there not?

Mr. Bator: In terms of the cash economic effects.

We don't think that it counts as federal assistance to an educational program or activity.

Unidentified Justice: Mr. Bator, I am somewhat surprised about... wasn't Title 9 re-enacted at some point?

Mr. Bator: Your Honor, I don't believe so, no.

Unidentified Justice: There was no re-enactment?

Mr. Bator: No.

Unidentified Justice: Were there any amendments?

Mr. Bator: There was, as far as... there were amendments which excluded certain categories of activity.

Unidentified Justice: Well, how about re-enactment of the grants legislation?

Mr. Bator: The BEOG legislation?

I'm not on absolutely certain grounds on that, but I assume that that has been re-enacted from time to time, yes, Your Honor.

Unidentified Justice: At a time when it was perfectly clear how those grants were being looked upon by the Title 9 administrators?

Mr. Bator: I think that from the beginning the Department has assumed that all BEOG grants, whether direct or this alternative system, do trigger Title 9 enforcement.

That has been a... on that one at least we have been consistent, Justice White.

Unidentified Justice: Okay, thank you.

Professor Bator, I did not quite understand what you said the government's position was with respect to the unisex private colleges?

Mr. Bator: That on their... that--

Unidentified Justice: With respect to this case.

Does this case have any effect on that?

Mr. Bator: --Your Honor, the statute, Title 9--

Unidentified Justice: Yes.

Mr. Bator: --Very carefully spells out the rules of the game on when undergraduate institutions and graduate institutions may continue to be unisex institutions.

It says that private undergraduate institutions, as far as this statute goes, may continue to be unisex institutions.

Public undergraduate institutions have this rather more ambiguous formula that their admissions may be restricted to one sex if there is a tradition of one sex attendance at that school, and that, of course, was the statute that created the statutory and of course constitutional problem in the Mississippi Nursing.

Unidentified Justice: And the graduate schools of unisex private colleges would be covered?

Mr. Bator: Graduate schools cannot, if they get any kind of federal aid under Title 9, whether private or public, graduate schools may not continue to be unisex colleges.

That is our understanding of the statute.

If there are no further questions--

Chief Justice Burger: Mr. Lascell, do you have anything further?

ORAL ARGUMENT OF DAVID M. LASCELL, ESQ., ON BEHALF OF PETITIONERS -- REBUTTAL

Mr. Lascell: Just one short comment, Mr. Chief Justice.

I remain confused about the government's position with respect to these regulations.

I thought that I had understood it before this argument, but I am not certain that I do once again.

It is clear, Justice Stevens, that the assurance of compliance which this college was asked to execute did more than simply say we will agree to abide by Title 9 to the extent that it applies to us.

The government's consistent position has been that that assurance of compliance is not only institutionwide but contractually binds that institution, Justice White, forever and ever to the federal government.

It is that with which this college disagrees.

Unidentified Justice: Yes, but haven't they said since then they will accept a lesser certificate?

Mr. Lascell: And what will they say tomorrow?

Unidentified Justice: Is the certificate they have said they will accept in the record?

Mr. Lascell: The only certificate is in... the only assurance of compliance ever propounded is in the record, yes.

It is in the Joint Appendix.

Unidentified Justice: But their proposed substitute has not been--

Mr. Lascell: That's correct.

Unidentified Justice: --reduced to writing.

Mr. Lascell: That is only a part of their brief and what we have heard here this morning.

We suggest, however, that this Court should not interpret these regulations, that these regulations are operating in a very sensitive area, and that they ought to be clearly stated and clearly understood so that those colleges like Grove City can operate at something less than peril.

Unidentified Justice: Has the... weren't these grants created by an amendment to Title what, Title 9?

Mr. Lascell: There were... this was in the Education Act of 1972.

It was a whole grant statute... it was a whole education amendment statute.

Unidentified Justice: But was there an amendment to Title 9?

Mr. Lascell: No.

Title 9 was a part of that, Justice Brennan.

Unidentified Justice: Just a part of that.

Mr. Lascell: That's correct.

The initial Title 9 was a part of that.

It was amended in 1976.

Unidentified Justice: What was?

Mr. Lascell: Title 9.

Unidentified Justice: Well, now, how about this, the grant statute?

Mr. Lascell: The grant statute was extended during the life of the BEOG awards.

Unidentified Justice: So it has been re-enacted.

Mr. Lascell: That's correct.

Unidentified Justice: And it was re-enacted at a time when... was it still in the same legislative basket with Title 9?

Mr. Lascell: Yes, yes.

Unidentified Justice: So that the regulations under Title 9 saying that receipt of these... not the receipt, but the--

Mr. Lascell: This whole proposition.

Unidentified Justice: --The whole proposition.

Mr. Lascell: Yes.

Unidentified Justice: This agency interpretation of the regulations was well known at the time.

Mr. Lascell: Well, it was known in 1975 when there were some studies done of it, that's correct.

Unidentified Justice: Well, and since then, since then the grant legislation has been re-enacted.

Mr. Lascell: No, no, that has not occurred.

The regulations have not been examined since 1975, and--

Unidentified Justice: Well, I know, but has the grant program been?

Mr. Lascell: --It has been extended, but the regulations--

Unidentified Justice: With the regulations on the books.

Mr. Lascell: --Yes.

Unidentified Justice: With the meaning that the agency had been giving to it.

Mr. Lascell: With the meaning that the agency has been giving to it since 1975, that's correct.

Unidentified Justice: Do you think that re-enactment against that background is really just post-legislative history or post-enactment history, or is it not?

Mr. Lascell: I think it is, at best, post-enactment legislative history, and I am very uncomfortable suggesting to the Court just what that means in this instance.

Unidentified Justice: Well, I think it's... isn't it something you have to deal with?

Mr. Lascell: Oh, yes, I don't disagree with that because as this--

Unidentified Justice: These regulations were presented to Congress under a now invalidated procedure, and--

Mr. Lascell: --Well, two invalidated--

[Laughter]

We have two invalidated procedures here, of course.

We not only have the procedure which this Court invalidated--

Unidentified Justice: --In any event, neither house rejected this interpretation of the regulations.

Mr. Lascell: --That's correct, that's correct.

In 1975, that's correct.

Unidentified Justice: And nevertheless extended the grant program which was part of Title 9.

Mr. Lascell: That's also correct.

And that, of course, is what this Court examined in North Haven.

We do not think that precisely the same issues are involved in this instance as were in North Haven, but we recognize that as a problem.

Thank you, Mr. Chief Justice.

Chief Justice Burger: Thank you, gentlemen.

The case is submitted.

We will hear arguments next in Consolidated Rail v. LeStrange.