Brigham Young University’s opposition to the United States Department of Health, Education, and Welfare’s Title IX regulations, which would introduce federal government control into the affairs of private educational institutions, was applauded at the recent annual meeting of the American Association of Presidents of Independent Colleges and Universities.
The 114 members of the association resolved to seek relief “by all appropriate means” from the increasing government control over their institutions, and specifically mentioned the Title IX regulations as “the most recent and most objectionable examples of attempts to extend federal control.”
The regulations were recently published to enforce Title IX of the Education Amendments of 1972. Title IX deals with sex discrimination in federally assisted educational programs in such areas as hiring, salary, housing accommodations, and athletic programs.
The majority of U.S. educational institutions are state-run and rely heavily upon federal aid to administer their various programs. But other colleges receive financial support from their sponsoring agency, as BYU does from The Church of Jesus Christ of Latter-day Saints.
As the HEW regulations now stand, BYU and other privately operated educational institutions would have to submit to policy decisions made by HEW and could not administer their own affairs in keeping with their own religious and moral beliefs. According to HEW, if educational institutions receive federal financial aid, even indirectly, the entire college is subject to federal regulations. Although BYU does not receive federal funding, the acceptance of federal aid—such as G.I. Bill assistance or a federally backed student loan—by even one of its 25,000 students would threaten its independence as a privately operated university.
Following publication of the HEW regulations, educational institutions across the nation had ninety days in which to publicly declare their compliance or objections.
In a statement challenging the constitutionality of the HEW regulations, BYU President Dallin H. Oaks said that “Title IX (the statutory law) forbids sex discrimination in every ‘education program or activity receiving federal financial assistance.’ However, the regulations issued by the Department [of Health, Education, and Welfare] purport to dictate policies and activities in many areas of the University, whether or not such policies or activities involve ‘education’ and whether or not they concern a ‘program or activity receiving federal financial assistance.’ The regulations effectively ignore these important qualifying words in the statute. They extend government powers well beyond those granted by the statute by insisting that if any part or area of an institution receives direct or indirect federal financial assistance (such as by enrolling students who receive federal aid), then the entire institution is subject to federal regulation.
“We reject this all-inclusive interpretation, believing that many of the regulations are unlawful because they exceed the Department’s statutory authority under Title IX.”
President Oaks’ statement emphasized, “Our stand in opposition to these regulations should not be taken as defiance of the law or the federal government. We believe our position is lawful—that it is the Department of Health, Education, and Welfare that is violating the constitutional and statutory law.
“The Board of Trustees of Brigham Young University endorse the goal of equal opportunity for men and women in education and employment. Brigham Young University does not discriminate on the basis of sex among its students or employees, or among applicants for admission or employment.”
In a press conference at which the statement was released, President Oaks pointed out that some of the regulations are vague. As an example, he cited the ruling that “separate toilet, locker room, and shower facilities” for the different sexes must be “comparable.”
“We cannot believe,” said President Oaks, “that HEW would be so absurd as to require that men’s and women’s rest room facilities contain identical sanitary fixtures …”
President Oaks added, “We also believe that some of the regulations are unconstitutional as applied to a Church-related institution because they violate the prohibition against the establishment of religion and the free exercise thereof.”
Reports of BYU’s stand against the HEW regulations were carried in practically every newspaper in the country. Clippings received at BYU run into the hundreds and while the majority of the editorial opinions expressed therein are favorable, some are critical of BYU for taking any stand that is interpreted by the media as being not beneficial to women.
On the BYU campus, the University’s stand has received the full support of the students and faculty. When President Oaks presented his statement to the faculty, he received a standing ovation.
In noting that BYU challenges parts of six of the forty-three regulations issued by HEW, President Oaks has made it clear that “BYU will comply with any regulations which the courts ultimately sustain as lawful.”
The challenge to the HEW regulations apply also to Brigham Young University—Hawaii Campus; the LDS Business College, Salt Lake City; and Ricks College, Rexburg, Idaho, all Church-sponsored educational institutions.
The only other U.S. institution at this writing to announce its opposition to parts of the Title IX regulations is Hillsdale College, Hillsdale, Michigan, whose president is a member of the American Association of Presidents of Independent Colleges and Universities.
The association has also gone on record as being opposed to the “imposition of government regulatory schemes upon privately supported institutions based upon imputed tax and other indirect benefits.”
Of particular concern is the recent United States Internal Revenue Service’s ruling that threatens to remove tax exemption and deductibility of contributions from independent institutions that fail to comply with government requirements on their student admission and hiring policies.
Although association members expressed strong support for equal opportunities in higher education for all persons, regardless of race, creed, or sex, they noted that the association is committed to preserve genuinely independent higher education in the United States.
BYU’s President Oaks, who has represented the association at Congressional hearings on Title IX, was elected president of the association at the recent meeting.