Appeal from orders of summary judgment in the United States District Court for the District of Connecticut, Ellen Bree Burns, Judge, declaring regulations governing sex discrimination in employment issued by the Department of Health,Education and Welfare (now adopted by the Department of Education) invalid and enjoining the Department from withholding or threatening to withhold any federal funds under those regulations. The Court of Appeals held that the employment discrimination regulations contained in 45 C.F.R. Part 86, Subpart E (now in 34 C.F.R. Part 106, Subpart E (May 9, 1980)) were authorized under Title IX of the Education Amendments of 1972, 20 U.S.C. § 1681 et seq., and hence were valid and enforceable. Judgments reversed and cases remanded.
Before Kaufman and Oakes, Circuit Judges, and Tenney, District Judge.*fn*
Cognizant that four other courts of appeals and a number of district courts have held otherwise, we nevertheless are convinced after extreme care and consideration that regulations issued by the United States Department of Health, Education and Welfare (HEW)*fn1 concerning sex discrimination in educational employment are valid under Title IX of the Education Amendments of 1972, 20 U.S.C. § 1681 et seq., as properly construed. Accordingly, we reverse the decisions of the United States District Court for the District of Connecticut, Ellen Bree Burns, Judge, which declared those regulations invalid and which enjoined HEW from withholding educational funding from two Connecticut school districts, North Haven and Trumbull, respectively.
Two separate cases are here involved and they will be treated separately for factual purposes even though they both involve the same essential legal question.
I. North Haven North Haven receives federal financial aid for its educational programs and activities, and hence is governed by the provisions of Title IX of the Education Amendments of 1972, 20 U.S.C § 1681 et seq., barring discrimination on the basis of sex. Since the 1975-76 school year, North Haven has used between 46.8% and 66.9% of its federal financial assistance to pay salaries of its employees and is expected to continue doing so.
On January 10, 1978, in response to a private complaint alleging that the North Haven Board of Education was violating Title IX by refusing to rehire a tenured teacher who had taken a one-year maternity leave, HEW requested North Haven to provide specific information concerning its policies on hiring, leaves of absence, seniority, and tenure. North Haven did not do so, asserting that HEW lacked authority to regulate employment practices under Title IX. When HEW notified the school district that the matter had been referred to its appropriate office for possible administrative enforcement proceedings, North Haven brought this action seeking declaratory and injunctive relief. The complaint alleged that the promulgation by HEW of the regulations contained in 45 C.F.R. Part 86, Subpart E, "was in excess of the statutory authority conferred by Congress in Section 902" of Title IX, 20 U.S.C. § 1682. After HEW moved in the alternative for dismissal or summary judgment and North Haven filed a cross-motion for summary judgment, the district court granted North Haven's motion for summary judgment on April 26, 1979.
II. Trumbull Appellant Linda Potz, a former guidance counselor in the Trumbull public schools, filed an administrative complaint with HEW alleging that the Trumbull Board of Education had discriminated against her on the basis of sex by giving her inferior job assignments, by providing her with inferior working conditions, and by not renewing her contract. The Trumbull board acknowledged receiving "substantial" federal financial assistance, although it is unclear how much, if any, of that assistance was used for guidance counseling. HEW determined that Trumbull had indeed violated Title IX by requiring Potz to perform typing and to run errands not required of male counselors, by moving her office to a smaller, poorly heated, and less comfortable space in the gymnasium away from the other counselors, by asking her to change a report showing that she had seen many more students in a given week than the number seen by her male counterparts, and by not renewing her contract on the basis of her sex. On September 20, 1978, HEW notified the board that the school district was in violation of Title IX and ordered Trumbull to take corrective action including the reinstatement of Potz. Trumbull did not take such corrective action and instead filed this action for declaratory and injunctive relief against both HEW and Potz challenging HEW's authority to issue Subpart E, as in the North Haven case. The district court granted Trumbull's motion for summary judgment on May 24, 1979, based on its prior decision in North Haven, and on September 13, 1979, denied Potz's timely-filed motion to set aside the prior order of summary judgment and denied her motion for summary judgment.
In each case, the district court declared Subpart E invalid and enjoined the federal defendants from interfering with federal financial assistance to plaintiffs for any alleged noncompliance with Subpart E. In holding that the prohibitions of Title IX do not apply to employment practices of educational institutions, the district court reached the same conclusion reached by a number of other courts.*fn2
Section 901(a) of Title IX, 20 U.S.C. § 1681(a), provides:
No person in the United States shall, on the basis of sex, be excluded from participation in, be denied the benefits of, or be subjected to discrimination under any education program or activity receiving Federal financial assistance, . . . .
In first granting summary judgment to North Haven, the district court relied principally on the reasoning of another district court in Romeo Community Schools v. HEW, 438 F. Supp. 1021 (E.D.Mich.1977), aff'd, 600 F.2d 581 (6th Cir.), cert. denied, 444 U.S. 972, 100 S. Ct. 467, 62 L. Ed. 2d 388 (1979). The district court held that § 901(a) "does not cover the employment practices of educational institutions," but rather only prohibits "sex discrimination against students and other direct beneficiaries of federal educational assistance funds." Aware that Title IX was patterned after Title VI of the Civil Rights Act of 1964, 42 U.S.C. § 2000d et seq., but without a provision similar to § 604 of Title VI excluding employment from the coverage of the statute,*fn3 the district court concluded that such a provision was omitted from Title IX because it would have been inconsistent with other portions of the Title IX legislative package pertaining to Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq., and to the Equal Pay Act, 29 U.S.C. § 206(d), rather than because Congress intended that employment be covered under § 901. The court also noted that § 901(a) on its face "addressed itself only to sex discrimination against the participants in and the beneficiaries of federally assisted education programs," and that the express exclusions from coverage of § 901(a)*fn4 "relate solely to student activity or enrollment."
The court further relied on the fact that "termination of federal funds is the only sanction authorized" under Title IX and wondered whether Congress would have authorized termination of funds for a school program, thereby penalizing the students, where more effective and less costly alternative methods of prohibiting employment discrimination were readily available. See Kuhn, Title IX: Employment and Athletics Are Outside HEW's Jurisdiction, 65 Geo.L.J. 49, 61-62 (1976). Moreover, under § 902 of the Act, 20 U.S.C. § 1682, the district court noted that any termination of funds is "limited in its effect to the particular program, or part thereof, in which . . . noncompliance has been . . . found,"*fn5 and that regulation of employment practices is inherently "nonprogram specific." In ruling against appellants, the court also noted that because Subpart E prohibits discriminatory employment practices "for their own sake" these regulations cannot be upheld on the so-called "infection theory" utilized in other cases i. e., that employment discrimination has an adverse effect upon the students themselves.*fn6
Later, in a separate opinion ruling in favor of Trumbull, the district court concluded that the Supreme Court's decision in Cannon v. University of Chicago, 441 U.S. 677, 99 S. Ct. 1946, 60 L. Ed. 2d 560 (1979) (Title IX permits private right of action), did not affect its ruling, and adopted the reasoning of the court of appeals in Romeo Community Schools v. HEW, 600 F.2d 581 (6th Cir.), cert. denied, 444 U.S. 972, 100 S. Ct. 467, 62 L. Ed. 2d 388 (1979), rejecting HEW's interpretation of the legislative history of Title IX. In the district court's view, the legislative history suggested "that Title IX's focus was upon students and other direct beneficiaries."
As in any other problem of statutory interpretation we must examine the words of the statute, the legislative history, and the statutory purpose to be served. We may also be aided by examining analogous statutes or statutes in pari materia as well as by applicable canons of construction, one of which in the immediate context is to give due weight to the contemporaneous construction of a statute by the agency charged with its administration. See NLRB v. Bell Aerospace Co., 416 U.S. 267, 274-275, 94 S. Ct. 1757, 1761-2, 40 L. Ed. 2d 134 (1974); Griggs v. Duke Power Co., 401 U.S. 424, 433-34, 91 S. Ct. 849, 854-5, 28 L. Ed. 2d 158 (1971). In determining what weight is due, however, as Judge Learned Hand once put it:
it is doubtful whether in the end one can say more than that there comes a point at which the courts must form their own conclusions. Before doing so they will, of course, like the administrative tribunals themselves look for light from every quarter, and after all crannies have been searched, will yield to the administrative interpretation in all doubtful cases; but they can never abdicate.