"North Haven" and "Dougherty": Narrowing the Scope of Title IX.

(Excerpt) Since 1975 when the former Department of Health, Education and Welfare (hereinafter referred to as HEW) initially promulgated regulations pursuant to Title IX of the Education Amendments of 1972 (hereinafter referred to as Title IX), four Courts of Appeals and numerous District Courts have declared invalid the Title IX regulations governing the employment practices and policies of educational institutions. In an attempt to avoid administrative chaos resulting from enforcement inconsistencies, the Justice Department petitioned the Supreme Court to review the decisions of the First, Sixth and Eighth Circuits. This petition was denied on November 26, 1979, thereby letting the appeals court decisions stand. Interested parties on both sides of the issue have awaited a circuit court opinion upholding the regulations. Dissonance among the circuits probably would persuade the Supreme Court to grant certiorari on a future petition and thereby reach closure on the issue of Title IX and employment discrimination. Two recent Court of Appeals opinions, North Haven Board of Education v. Hufstedler and Dougherty County School System v. Harris may well provide the Court with the necessary impetus to review not only the issue as to the validity of the Title IX employment regulations but also the broader issue as to the scope of the new Department of Education's power to regulate under Title IX in general. The latter issue presents far-reaching implications for civil rights enforcement in the educational areas including sex, race and handicap discrimination. This article will discuss the Second and Fifth Circuit opinions in view of their analysis of the legislative intent of Title IX as compared to the analysis engaged in by the earlier courts declaring the Title IX employment regulations invalid. A middle approach will be proposed similar in effect to the Fifth Circuit ruling which upheld employment coverage under Title IX but narrowed the scope of the regulations as promulgated by HEW. However, in contrast with that opinion which relied upon the limitations in enforcement powers under §1682, modeled after the pinpoint provision in Title VI of the Civil Rights Act of 1964 (hereinafter referred to as Title VI), to justify the limitation of regulatory powers, the proposed model is based upon a comparison of statutory and regulatory language.