Supreme Court’s Decision in North Haven v. Bell

Following is the text of the U.S. Supreme Court’s decision in North Haven Board of Education v. Bell. Single asterisks in brackets, [

• ], denote footnotes that have been omitted; double asterisks, [
• ], denote legal citations omitted. The footnotes marked by number may be found at the end of the text. The text begins with the opinion of the six-Justice majority and concludes with the dissenting view of Justices Powell and Rehnquist, and Chief Justice Burger. Because the complaint in the case was first filed in 1978 with the former Department of Health, Education, and Welfare (HEW), and because “many of the relevant actions in this case were taken by HEW prior to its reorganization,” references in the text, the Justices note, are always to “HEW” rather than to the subsequently established Education Department.

The Supreme Court’s Decision in North Haven v. Bell

Our starting point in determining the scope if Title IX is,of course, the statutory language. [Its] broad directive that"no person” may be discriminated against on the basis ofgender appears, on its face, to include employees as well asstudents. Under that provision, employees, like other"persons,” may not be “subjected to discrimination under"education programs receiving federal financial support.

The Majority Opinion

Justice Blackmun delivered the opinion of the Court.

At issue here is the validity of regulations promulgated by the Department of Education pursuant to Title IX of the Education Amendments of 1972, Pub. L. 92-318, 86 Stat. 373, 20 U.S.C. 1681 et seq. These regulations prohibit federally funded education programs from discriminating on the basis of gender with respect to employment.

I

Title IX proscribes gender discrimination in education programs or activities receiving federal financial assistance. Patterned after Title VI of the Civil Rights Act of 1964, Pub. L. 88-352, Stat. 252, 42 U.S.C. 200d et seq., Title IX, as amended, contains two core provisions. The first is a “program specific” prohibition of gender discrimination:

“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..."901(a).

Nine statutory exceptions to 901(a)'s coverage follow. See 901(a)(1)-(9).

The second core provision relates to enforcement. Section 902 authorizes each agency awarding federal financial assistance to any education program to promulgate regulations ensuring that aid recipients adhere to 901(a)'s mandate. The ultimate sanction for noncompliance is termination of federal funds or denial of future grants. Like 901(a), 902 is program-specific:

"[S]uch termination or refusal shall be limited to the particular political entity, or part thereof, or other recipient as to whom such a finding [of noncompliance] has been made, and shall be limited in its effect to the particular program, or part thereof, in which such noncompliance has been so found. ...”

In 1975, the Department of Health, Education, and Welfare (HEW) invoked its 902 authority to issue regulations governing the operation of federally funded education programs. These regulations extend, for example, to policies involving admissions, textbooks, and athletics. See 34 CFR pt. 106(1980). Interpreting the term “person” in 901(a) to encompass employees as well as students, HEW included among the regulations a series entitled “Subpart E,” which deals with employment practices, ranging from job classifications to pregnancy leave. See 34 CFR 106.51--106.61 (1980). Subpart E’s general introductory section provides:

“No person shall, on the basis of sex, be excluded from participation in, be denied the benefits of, or be subjected to discrimination in employment, or recruitment, consideration, or selection therefore, whether full-time or part-time,under any education program or activity operated by a recipient which received or benefits from Federal financial assistance.” 106.51(a)(1).[

• ]

II.

Petitioners are two Connecticut public school boards that brought separate suits challenging HEW’s authority to issue the Subpart E regulations. Petitioners contend that Title IX was not meant to reach the employment practices of educational institutions.

A. The North Haven case. The North Haven Board of Education (North Haven) receives federal funds for its education programs and activities and is therefore subject to Title IX’s prohibition of gender discrimination. Since the 1975-1976 school year, North Haven has devoted between 46.8% and 66.9% of its federal assistance to the salaries of its employees; this practice is expected to continue.[

• ]

In January 1978, Elaine Dove, a tenured teacher in the North Haven public school system, filed a complaint with HEW, alleging that North Haven had violated Title IX by refusing to rehire her after a one-year maternity leave. In response to this complaint, HEW began to investigate the school board’s employment practices and sought from petitioner information concerning its policies on hiring, leaves of absence, seniority, and tenure. Asserting that HEW lacked authority to regulate employment practices under Title IX, North Haven refused to comply with the request.

When HEW then notified petitioner that it was considering administrative enforcement proceedings, North Haven brought this action in the United States District Court for the District of Connecticut. The complaint sought a declaratory judgment that the Subpart E regulations exceeded authority conferred on HEW from attempting to terminate the school district’s federal funds on the basis of those regulations. The parties filed cross-motions for summary judgment, and on April 24, 1979, the District Court granted North Haven’s motion. [

• ] Agreeing with petitioner that Title IX was not intended to apply to employment practices, the court invalidated the employment regulations and permanently enjoined HEW from interfering with North Haven’s federal funds because of noncompliance with those regulations.

B. The Trumbull case. The Trumbull Board of Education (Trumbull) likewise receives financial support from the Federal Government and must therefore adhere to the requirements of Title IX and appropriate implementing regulations. In October 1977, HEW began investigating a complaint filed by respondent Linda Potz, a former guidance counselor in the Trumbull school district. Potz alleged that Trumbull had discriminated against her on the basis of gender with respect to job assignments, working conditions, and the failure to renew her contract. In September 1978, HEW notified Trumbull that it had violated Title IX and warned that corrective action, including respondent’s reinstatement, must be taken.

Trumbull then filed suit in the United States District Court for the District of Connecticut, contending that HEW’s Title IX employment regulations were invalid and seeking declaratory and injunctive relief. On the basis of its decision in North Haven, the District Court granted Trumbull’s motion for summary judgment on May 24, 1979.[

• ] [
• ] The court subsequently amended the judgment, on Trumbull’s request, to include injunctive and declaratory relief similar to that ordered in North Haven’s case. [
• ]

C. The appeal. The two cases were consolidated on appeal, and the Court of Appeals for the Second Circuit reversed. North Haven Bd. of Ed. v. Hufstedler, 629 F. 2d 773 (CA2 1980). Finding the language of 901 inconclusive, the court examined the legislative history and concluded that the provision was intended to prohibit employment discrimination. The court also found the Subpart E regulations consistent with 902, which the court read as directing only that “any termination of funds be limited to the particular program or programs in which noncompliance with 901 is found. ...” 629 F. 2d, at 785 (emphasis added). Section 902, the Second Circuit held, does not circumscribe HEW’s authority to issue regulations prohibiting gender discrimination in employment and does not require the Department “to specify prior to termination which particular programs receiving financial assistance are covered by its regulations.” Ibid. Because HEW had not exercised its 902 authority to terminate federal assistance to either North Haven or Trumbull, the court declined to decide whether HEW could do so in these cases. The court remanded the cases to the District Court to determine whether petitioners had violated the HEW regulations and, if so, what remedies were appropriate.

Because other federal courts have invalidated the employment regulations as unauthorized by Title IX,[

• ] we granted certiorari to resolve the conflict. 450 U.S. 909 (1981).

III (A)

Our starting point in determining the scope if Title IX is, of course, the statutory language. [

• ] Section 901(a)'s broad directive that “no person” may be discriminated against on the basis of gender appears, on its face, to include employees as well as students. Under that provision, employees, like other “persons,” may not be “excluded from participation in,” “denied the benefits of,” or “subjected to discrimination under” education programs receiving federal financial support.

Employees who directly participate in federal programs or who directly benefit from federal grants, loans, or contracts clearly all within the first two protective categories described in 901(a). [

• ] In addition, a female employee who works in a federally funded education program is “subjected to discrimination under” that program if she is paid a lower salary for like work, given less opportunity for promotion, or forced to work under more adverse conditions than are her male colleagues. [
• ]

There is no doubt that “if we are to give [Title IX] the scope that its origins dictate, we must accord it a sweep as broad as its language.” United States v. Price, 383 U.S. 787, 801 (1966). [

• ] Because 901(a) neither expressly nor impliedly excludes employees from its reach, we should interpret the provision as covering and protecting these ''persons” unless other considerations counsel to the contrary. After all, Congress easily could have substituted “student” or “beneficiary” for the work “person” if it had wished to restrict the scope of 901(a).

Petitioners, however, point to the nine exceptions to 901(a)'s coverage set forth in 901(a)(1)-(9). [

• ] The exceptions, the school boards argue, are directed only at students, and thus indicate that 901(a) similarly applies only to students. But the exceptions are not concerned solely with students and student activities: two of them exempt an entire class of institutions--religious and military schools--and are not limited to student-related activities at such schools. [
• ] Moreover, petitioners’ argument rests on an inference that is by no means compelled; in fact, the absence of a specific exclusion for employment among the list of exceptions tends to support the Court of Appeals’ conclusion that Title IX’s broad protection of “person[s]” does extend to employees of educational institutions.[
• ]

Although the statutory language thus seems to favor inclusion of employees, nevertheless, because Title IX does not expressly include or exclude employees from its scope, we turn to the Act’s legislative history for evidence as to whether Congress meant somehow to limit the expansive language of 901.

III (B)

In the early 1970’s, several attempts were made to enact legislation banning discrimination against women in the field of education. Although unsuccessful, these efforts included prohibitions against discriminatory employment practices.[

• ]

In 1972, the provision ultimately enacted as Title IX was introduced in the Senate by Senator Bayh during debate on the Education Amendments of 1972. In addition to prohibiting gender discrimination in federally funded education programs and threatening termination of federal assistance for noncompliance, the amendment included provisions extending the coverage of Title VII and the Equal Pay Act to educational institutions. Summarizing his proposal, Senator Bayh divided it into two parts--first, the forerunner of 901(a), and then the extensions of Title VII and the Equal Pay Act:

“Amendment No. 874 is broad, but basically it closes loopholes in existing legislation relating to general education programs and employment resulting from those programs. ... [T]he heart of this amendment is a provision banning sex discrimination in educational programs receiving Federal funds. The amendment would cover such crucial aspects as admissions procedures, scholarships, and faculty employment, with limited exceptions. Enforcement powers include fund termination provisions--and appropriate safeguards--parallel to those found in title VI of the 1964 Civil Rights Act. Other important provisions in the amendment would extend the equal employment opportunities provisions of title VII of the 1964 Civil Rights Act to educational institutions, and extend the Equal Pay for Equal Work Act to include executive, administrative, and professional women.” [

• ]

The Senator’s description of 901(a), the “heart” of his amendment, indicates that it, as well as the Title VII and Equal Pay Act provisions, was aimed at discrimination in employment.

Similarly, in a prepared statement summarizing the amendment, Senator Bayh discussed the general prohibition against gender discrimination:

“Central to my amendment are sections 1001-1005, which would prohibit discrimination on the basis of sex in federally funded education programs. ...

“This portion of the amendment covers discrimination in all areas where abuse has been mentioned--employment practices for faculty and administrators, scholarship aid, admissions, access to programs within the institution such as vocational education classes, and so forth.” [

• ]

Petitioners observe that the discussion of this portion of the amendment appears under the heading “A. Prohibition of Sex Discrimination in Federally Funded Education Programs,” while the provisions involving Title VII and the Equal Pay Act are summarized under the heading “B. Prohibition of Education-Related Employment Discrimination.” Ibid. But we are not willing to ascribe any particular significance to these headings. The Title VII and Equal Pay Act portions of the Bayh amendment are more narrowly focused on employment discrimination than is the general ban on gender discrimination, and the headings reflect that difference. Especially in the light of the explicit reference to employment practices in the description of the amendment’s general provision, however, the headings do not negate Senator Bayh’s intent that employees as well as students be protected by the first portion of his amendment.[

• ]

The final piece of evidence from the Senate debate on the Bayh amendment appears during a colloquy between Senator Bayh and Senator Pell, chairman of the Senate Subcommittee on Education and floor manager of the education bill. In response to Senator Pell’s inquiry about the scope of the sections that in large part became 901(a) and (b), Senator Bayh stated:

“As the Senator knows, we are dealing with three basically different types of discrimination here. We are dealing with discrimination in admission to an institution, discrimination of available services or studies within an institution once students are admitted, and discrimination in employment within an institution, as a member of a faculty or whatever.

“In the area of employment, we permit no exceptions.” [

• ]

Although the statements of one legislator made during debate may not be controlling, [

• ] Senator Bayh’s remarks, as those of the sponsor of the language ultimately enacted, are an authoritative guide to the statute’s construction. [
• ] And, because 901 and 902 originated as a floor amendment, no committee report discusses the provisions; Senator Bayh’s statements--which were made on the same day the amendment was passed, and some of which were prepared rather than spontaneous remarks--are the only authoritative indications of congressional intent regarding the scope of 901 and 902.

The legislative history in the House is even more sparse. H R 7248, 92d Cong., 1st Sess. (1971), the Higher Education Act of 1971, contained as part of its Title X, a general prohibition against gender discrimination in federally funded education programs that was identical to the corresponding section of the Bayh amendment and to 901(a) as ultimately enacted. But 1004 of Title X, like 604 of Title VI, see 42 U.S.C. 2000d-3, provided that nothing in Title X authorized action “by any department or agency with respect to any employment practice ... except where a primary objective of the Federal financial assistance is to provide employment.” The debate on Title X included no discussion of this limitation.

When the House and Senate versions of Title IX were submitted to the Conference Committee, 1004 was deleted. The Conference Reports simply explained:

"[T]he House amendment, but not the Senate amendment, provided that nothing in the title authorizes action by any department or agency with respect to any employment practice of any employer, employment agency, or labor organization except where a primary objective of the Federal financial assistance is to provide employment. The House recedes.” [

• ]

Expressly a conscious choice, therefore, the omission of 1004 suggests that Congress intended that 901 prohibit gender discrimination in employment.

Petitioners and the dissent contend, however, that 1004 was deleted in order to avoid an inconsistency: Title IX included provisions relating to the Equal Pay Act, [

• ] which obviously concerned employment, and 1004 conflicted with those portions of the Act. See Sex Discrimination Regulations: Hearings before the Subcommittee on Postsecondary Education of the House Committee on Education and Labor, 94th Cong., 1st Sess,. 409 (1975) (1975 Hearings) (remarks of Rep. O’Hara) (arguing that Title IX was a “cut and paste job,” using “a Xerox” of Title VI, and that 1004 “got in through a drafting error.”). As the Court of Appeals observed, however, the Conference Committee could easily have altered the wording of 1004 to make clear that its limitation applied only to 901 or could have noted in the Conference Reports that the omission was necessitated by the apparent inconsistency. Instead, by stating that "[t]he House receded,” the Reports suggest that the Senate version of Title IX, which was intended to ban discriminatory employment practices, prevailed for substantive reasons. [
• ] Identical language--"The House recedes” or “The Senate recedes"--appears in the Conference Reports with respect to all other changes made in Title IX during the conference. [
• ]

Petitioners insist additionally that a specific exclusion for employment, such as that contained in 1004, was unnecessary to limit the scope of 901. Pointing our that Title IX was patterned after Title VI of the Civil Rights Act of 1964, the school boards contend that the addition of 604 to Title VI was not viewed by Congress and diminishing the scope of the Act; rather, petitioners argue, it was agreed that Title VI would not prohibit employment discrimination even before 604 made the exclusion explicit.

This focus on the history of Title VI--urged by petitioners and adopted by dissent--is misplaced. It is Congress’ intention in 1972, not in 1964, that is of significance in interpreting Title IX. [

• ] The meaning and applicability of Title VI are useful guidelines in construing Title IX, therefore, only to the extent that the language and history of Title IX do not suggest a contrary interpretation. Moreover, whether 604 clarified or altered the scope of Title VI,[
• ] it is apparent that 601 alone was not considered adequate to exclude employees from the statute’s coverage. If Congress had intended that Title IX have the same reach as Title VI, therefore, we assume that it would have enacted counterparts to both 601 and 604. For although two statutes may be similar in language and objective, we must not fail to give effect to the differences between them. [
• ]

In our view, the legislative history thus corroborates our reading of the statutory language and verifies the Court of Appeals’ conclusion that employment discrimination comes within the prohibition of Title IX.

III (C)

The postenactment history of Title IX provides additional evidence of the intended scope of the Title and confirms Congress’s desire to ban employment discrimination in federally financed education programs. Following the passage of Title IX, Senator Bayh published in the Congressional Record a summary of the final version of the bill. That description expressly distinguishes Title VI of the Civil Rights Act of 1964 with respect to employment practices:

“Title VI ... specifically excludes employment from coverage (except where the primary objective of the federal aid is to provide employment). There is no similar exemption for employment in the sex discrimination provisions relating to federally assisted education programs.” [

• ]

Then, in June 1974, HEW published proposed Title IX regulations pursuant to 902. [

• ] Included among these regulations was Subpart E, containing provisions prohibiting discriminatory employment practices in federally funded education programs. During the comment period, nearly 10,000 formal responses to the regulations were submitted, reputedly the most HEW had ever received on one of its proposals. [
• ] But not one suggested that 901 was not meant to prohibit discriminatory employment practices.

On June 4, 1975, HEW published its final Title IX regulations ... [

• ] and submitted the regulations to Congress for review. This “laying before” provision was designed to afford Congress an opportunity to examine a regulation and, if it found the regulation “inconsistent with the Act from which it derives its authority ...,” to disapprove it in a concurrent resolution. If no such disapproval resolution was adopted within 45 days, the regulation would become effective.

Resolutions of disapproval were introduced in both Houses of Congress. The two Senate resolutions, which did not mention the employment regulations, were not acted upon.[

• ] In the House, the Subcommittee on Postsecondary Education of the House Committee on Education and Labor held six days of hearings to determine whether the HEW regulations were “consistent with the law and with the intent of the Congress in enacting the law.” 1975 Hearings 1 (remarks of Rep. O’Hara). One witness expressed opposition to the employment regulations, interpreting the legislative history much as petitioners have. [
• ] Senator Bayh testified, however, that the regulations, “as the Congress mandated, call for equality in admissions ... and in the case of teachers and other educational personnel, employment, pay, and promotions.” 1975 Hearings 169. And HEW Secretary Weinberger stated that he did not see “any way you can find that employees do not participate in education programs and activities receiving Federal assistance, and, therefore, they are within the protected class. [
• ]

Following the hearings, members of the Subcommittee on Postsecondary Education introduced concurrent resolutions disapproving certain portions of the HEW regulations, but not referring specifically to the employment regulations.

Representatives Quie and Erlenborn introduced an amendment to H.R. Con. Res. 330 that explicitly sought to disapprove the employment regulations as inconsistent with Title IX. Neither resolution was passed, and HEW’s regulations went into effect on July 21, 1975.

Admittedly, Congress’ failure to disapprove the HEW regulations does not necessarily demonstrate that it considered those regulations valid and consistent with the legislative intent. [

• ] But the postenactment history of Title IX does indicate that Congress was made aware of the Department’s interpretation of the Act and of the controversy surrounding the regulations governing employment, and it lends weight to the argument that coverage of employment discrimination was intended. [
• ] And the relatively insubstantial interest given the resolutions of disapproval that were introduced seems particularly significant since Congress has proceeded to amend 901 when it has disagreed with HEW’s interpretation of the statute.[
• ] While amending these other portions of 901, however, Congress has not seen fit to disturb the Subpart E regulations.

In fact, Congress has refused to pass bills that would have amended 901 to limit its coverage of employment discrimination. On the day the 45-day review period for the HEW’s regulations expired, Senator Helms introduced a bill that would have added a provision to Title IX stating that "[n]othing in [901] shall apply to employees of any educational institution subject to this title.” [

• ] No action was taken on the bill. Similarly, Senator McClure sponsored an amendment to S2657, 94th Cong., 2d Sess. (1976), the Education Amendments of 1976, which would have restricted the meaning of the term “educational program or activity” in 901(a) to the “curriculum or graduation requirements of the institutions ...’' receiving federal funds. [
• ] Senator Bayh successfully opposed the amendment, in part on the ground that it “would exempt those areas of traditional discrimination against women that are the reason for the Congressional enactment of title IX[,]” including “employment and employment benefits.” [
• ] The McClure amendment was rejected. [
• ]

Although postenactment developments cannot be accorded “the weight of contemporary legislative history, we would be remiss if we ignored these authoritative expressions concerning the scope and purpose of Title IX. ...” Cannon v. University of Chicago, 441 U.S., at 687, n. 7. Where “an agency’s statutory construction has been ‘fully brought to the attention of the public and the Congress,’ and the latter has not sought to alter that interpretation although it has amended the statute in other respects, then presumably the legislative intent has been correctly discerned.” [

• ] These subsequent events therefore lend credence to the Court of Appeals’ interpretation of Title IX.

IV

Although we agree with the Second Circuit’s conclusion that Title IX proscribes employment discrimination in federally funded education programs, we find that the Court of Appeals paid insufficient attention to the “program-specific” nature of the statute. The court acknowledged that, under 902, termination of funds “shall be limited in its effect to the particular program, or part thereof, in which ... noncompliance has been ... found,” but implied that the Department’s authority to issue regulations is considerably broader. [

• ] We disagree.

It is not only Title IX’s funding termination provision that is program-specific. The portion of 902 authorizing the issuance of implementing regulations also provides:

“Each Federal department and agency which is empowered to extend Federal financial assistance to any education program or activity ... is authorized and directed to effectuate the provisions of section 901 with respect to such program or activity by issuing rules, regulations, or orders of general applicability which shall be consistent with achievement of the objectives of the statute authorizing the financial assistance in connection with which the action is taken.” (Emphasis added.)

Certainly, it makes little sense to interpret the statute, as respondents urge, to authorize an agency to promulgate rules that it cannot enforce. And 901(a) itself has a similar program-specific focus: it forbids gender discrimination “under any education program or activity receiving Federal financial assistance. ...”

Title IX’s legislative history corroborates its general program-specificity. Congress failed to adopt proposals that would have prohibited all discriminatory practices of an institution that receives federal funds. [

• ] In contrast, Senator Bayh indicated that his 1972 amendment, which in large part was ultimately adopted, was program-specific. [
• ] Finally, we note that language in 601 and 602 of Title VI, virtually identical to that in 901 and 902 and on which Title IX was modeled, has been interpreted as being program-specific. We conclude, then, that an agency’s authority under Title IX both to promulgate regulations and to terminate funds is subject to the program-specific limitation of 901 and 902. [
• ]

Examining the employment regulations with this restriction in mind, we nevertheless reject petitioners’ contention that the regulations are facially invalid. Although their import is by no means unambiguous, we do not view them as inconsistent with Title IX’s program-specific character. The employment regulations do speak in general terms of an educational institution’s employment practices, but they are limited by the provision that states their general purpose: “to effectuate title IX ...[,] which is designed to eliminate (with certain exceptions) discrimination on the basis of sex in any education program or activity receiving Federal financial assistance. ...” [

• ]

HEW’s comments accompanying publication of its final Title IX regulations confirm our view that Subpart E is consistent with the Act’s program-specificity.[

• ] The Department recognized that 902 limited its authority to terminate funds to particular programs that were found to have violated Title IX, and it continued:

“Therefore, an education program or activity or part thereof operated by a recipient of Federal financial assistance administered by the Department will be subject to the requirements of this regulation if it receives or benefits from such assistance. This interpretation is consistent with the only case specifically ruling on the language contained in title VI, which holds that Federal funds may be terminated under title VI upon a finding that they are ‘infected by a discriminatory environment ...’ Board of Public Instruction of Taylor County, Florida v. Finch [

• ].

By expressly adopting the Fifth Circuit opinion construing Title VI as program-specific, HEW apparently indicated its intent that the Title IX regulations be interpreted in like fashion. So read, the regulations conform with the limitations Congress enacted in 901 and 902.

Whether termination of petitioners’ federal funds is permissible under Title IX is a question that must be answered by the District Court in the first instance. Similarly, we do not undertake to define “program” in this opinion. Neither of the cases before us advanced beyond a motion for summary judgment, and the record therefore does not reflect whether petitioners’ employment practices actually discriminated on the basis of gender or whether any such discrimination comes within the prohibition of Title IX. Neither school board opposed HEW’s investigation into its employment practices on the grounds that the complaining employees’ salaries were not funded by federal money, that the employees did not work in an education program that received federal assistance, or that the discrimination they allegedly suffered did not affect a federally funded program. Instead, petitioners disputed the Department’s authority to regulate any employment practices whatsoever, and the District Court adopted that view, which we find to be error. Accordingly, we affirm the judgment of the Court of Appeals but remand the case for further proceedings consistent with this opinion.

It is so ordered.

Section 901(a)(1) provides that, with respect to admissions, 901(a) applies only to institutions of vocational education, professional education, and graduate higher education, and to public institutions of undergraduate higher education. Specific exceptions are made for the admissions policies of schools that begin admitting students of both sexes for the first time, 901(a)(2); religious schools, 902(a)(3); military schools, 901(a)(4); the admissions policies of public institutions of undergraduate higher education that traditionally and continually have admitted students of only one gender, 901(a)(5); social fraternities and sororities, and voluntary youth service organizations, 901(a)(6), Boys/Girls State/Nation conferences, 901(a)(7); father-son and mother-daughter activities at educational institutions, 901(a)(8); and scholarships awarded in “beauty” pageants by institutions of higher education, 901(a)(9).

Funding may not be terminated, however, until after the agency determines that [compliance] cannot be achieved by voluntary means; the recipient is given a hearing before an administrative law judge, who makes a recommendation subject to administrative and judicial review; and a report is filed with the appropriate House and Senate committees and no action is taken on that report for 30 days. [

• ]

In construing a statute, this Court normally accords great deference to the interpretation, particularly when it is longstanding, of the agency charged with the statute’s administration. [

• ] But the administrative interpretation of Title IX has changed, and a split has occurred between the federal agencies responsible for promulgating Title IX regulations. On July 27, 1981, respondent Bell, Secretary of Education, wrote to the Attorney General expressing his dissatisfaction with the existing Subpart E regulations and his belief that they were ultra vires. The Secretary sought to amend the regulations to make them parallel with the Department of Education regulations implementing Title VI of the Civil Rights Act of 1964. [
• ] Specifically, Secretary Bell proposed to have the regulations cover employment practices “only when the complaint shows a clear nexus between the alleged employment discrimination and discrimination against the students, or when the complaint shows that the complainant is a beneficiary of a program in which a primary objective of the Federal financial assistance is to provide employment."[
• ] In response, the Attorney General, to whom the President has delegated the authority given him by 902 to approve regulations promulgated pursuant to Title IX, refused to approve the Department’s suggestion and continues to defend the existing regulations. [
• ]

The Department of Education has withdrawn its request to the Attorney General pending this Court’s decision in this case. Because the Subpart E regulations therefore are still in effect, respondent Bell’s changed view does not moot the litigation. It, however, does undercut the argument that the regulations are entitled to deference as the interpretation of the agency charged with Title IX’s enforcement. [

• ]

Senator Bayh’s 1971 proposal, did not include provisions amending Title VII and the Equal Pay Act. His statements that the 1971 amendment nevertheless would prohibit employment discrimination thus rebut petitioner’s contention that the Senator’s discussion of employment discrimination during debate on the 1972 version of his amendment referred solely to the provisions regarding Title VII and the Equal Pay Act.

The Court of Appeals suggested the following language: “Nothing in 901 shall apply to any employees of any educational institution subject to this title except where a primary objective of the Federal financial assistance is to provide employment.” [

• ]