Applicability of Certain Cross-Cutting Statutes to Block Grants Under the Omnibus Budget Reconciliation Act of 1981

• Court: Department of Justice Office of Legal Counsel
• Decided: January 18, 1982
• Status: Published

Opinion

Applicability of Certain Cross-Cutting Statutes to Block Grants Under the Omnibus Budget Reconciliation Act of 1981

Two block grant program s created by the O m nibus Reconciliation Act of 1981 are subject to four “cross-cutting” statutes barring discrim ination on grounds of race, sex, handicap, and ag e, and activities funded under those program s are subject to all of the regulatory and paperw ork requirem ents im posed by those statutes.

The language and legislative history of the four nondiscrim ination laws at issue reveal that they were intended by C ongress to be statem ents of national policy broadly applicable to all program s or activities receiving federal financial assistance. T herefore, in the absence of a clear expression of congressional intent to exem pt a particular program from the obligations im posed by the four cross-cutting law s, those laws will be presum ed to apply in full force

W hile the general purpose of the block grant concept is to consolidate and “defederalize" prior categorical aid to state and local governm ents, and to lighten federal regulatory burdens, there is no suggestion in the legislative history o f the two specific block grants at issue here that C ongress intended to exem pt program s or activities funded by them from the obligation not to discrim inate em bodied in the four cross-cutting statutes.

January 18, 1982

M EM ORANDUM OPINION FOR THE COUNSEL TO THE DIRECTOR, OFFICE OF MANAGEMENT AND BUDGET

I. Introduction

This responds to your request for our opinion concerning the applicability of four “cross-cutting”1 laws to two specific block grant programs created by the Omnibus Budget Reconciliation Act of 1981, Pub. L. N o. 97-35, 95 Stat. 357 [the Reconciliation Act], Although numerous cross-cutting laws are potentially applicable to the several block grants created by the Reconciliation A ct, you have inquired specifically about the applicability of four nondiscrimination statutes to two block grants administered by the Departments of Health and Human Services (HHS) and Education, respectively. These four nondiscrimination statutes are:

(1) Title VI of the Civil Rights Act of 1964, 42 U.S.C. § 2000d;

’ T he use of the term "cro ss-cu ttin g ” refers lo the broad applicability o f the p articu lar statutes d iscussed herein to a w ide range o f program s o r activities receiving federal financial assistan c e. Because o u r analysis rel les heavily o n the legislative history o f th ese four statutes and the public policy reflected in them , o u r conclusions m ay not necessarily apply to other cross-cutting statutes.

83 (2) Title IX of the Education Amendments Act of 1975, 20 U .S.C . § 1681; (3) Section 504 of the Rehabilitation Act of 1973, 29 U .S .C . § 794; and (4) The Age Discrimination Act of 1975, 42 U .S.C . §§ 6101-6107.

The tw o relevant block grants are the Social Services Block Grant and the Elem entary and Secondary Education Block Grant. These two block grants were enacted as part of the massive Omnibus Budget Reconciliation Act o f 1981, an unusual statute for its length, breadth, and relatively sw ift enactm ent. The legislative breadth of the Reconciliation bill was such that som e 30 committees in both Houses of Congress had jurisdiction over the bill. The Reconciliation bill adopted by the House, however, was not a product of the com m ittees but rather was an alternative known as the Gramm- Latta am endm ent. T he House considered the entire Reconciliation package in only tw o days of debate, and its vote occurred on the same day that the then 700- page G ram m -Latta amendment was made available for general distribution.2 The H ouse and Senate bills required the “ largest and most complicated conference in the history of the C ongress.” S ee 127 Cong. Rec. H5759 (daily ed. July 31, 1981) (Sum m ary of Reconciliation Conference). In only a two-week period, 184 House conferees and 69 Senate conferees held a series of 58 “m iniconferences.” T he Reconciliation Act that resulted is over 570 pages long, see 95 Stat. 357-933, and although it is prim arily a “budget” act, it necessarily m akes changes in substantive law in the num erous areas it addresses.3 The unique and complex nature of the legislation and its unprecedented legislative history are noted because they are relevant to our analysis of the Reconciliation Act and congressional intent with respect to the four cross-cutting statutes. Your memorandum expresses the preliminary view that the four non­ discrim ination statutes do not apply to the Social Services and the Elementary and Secondary Education Block Grants. This conclusion is based on several considerations: (1) the fundamental intent of Congress in enacting block grants was to free the states from all federal encumbrances and regulations not specifi­ cally im posed by the statutes; (2) as of the date of your memorandum, the block- grant regulations that had been issued by the agencies responsible for administer­ ing them were silent on applicability of the four nondiscrimination statutes to the two block grants in question; (3) six of the eight block grants applicable to the D epartm ents o f Education and H ealth and Hum an Services explicitly incorporate

2 A s a result o f the dim ensions of the legislation and its rapid m ovem ent through the legislative p ro cess, som e o p p o n en ts ex p ressed strong criticism over th e process as well a s expressing considerable confusion o v er som e asp ects o f th e pack ag e S e e .e .g . 127Cong. R ec H 3 9 I7 (daily ed June 26, 1981) (rem arks o f Rep. F bghetta) (“ I w ould not claim to know all that is in this v o lu m e of 700 pages, we only received shortly before noon today i have h ardly had a ch an ce to read it.” ), id H3920 (rem ark s o f Rep. F^netta) (“ We are dealin g here w ith over 250 pro g ram s, an d w e are d e a lin g w ith th ese changes in th is am endm ent w ith no co n sid eratio n , no com m ittee hearin g s, no co n su ltatio n , no d eb a te, and no opportunity to offer am endm ents to this kind o f broad s u b stitu te.” ) See also id. H 3924 (rem ark s o f Rep. F renzel, supporting G ram m -L atta 11) (“A ll o f us have been em barrassed by the tard in ess of th e receip t o f th e am en d m en t an d by the u n tid in ess o f the process 1 w ould invite each M em ber here . to raise his o r h er sig h ts above th e indignity o f a late, som ew hat-flaw ed, hard-to-follow bill ”) 3 T h e R econciliation A ct affected some 2 5 0 separate statutes. See 127 C o n g . Rec S 8988 (daily ed July 31, 1981) (rem ark s o f S en . D om enici)

84 nondiscrimination provisions, suggesting that the nondiscrimination require­ ments should not apply to the two block grants that omit them; (4) Congress itself deleted nondiscrim ination provisions from the original A dm inistration p ro ­ posals; and (5) except for Section 504, nonapplicability of the nondiscrimination provisions, which are largely redundant of constitutional or other statutory protections or are of minimal effect, will reduce the regulatory and paperwork aspects of enforcem ent of these rights without affecting to any significant extent the substantive obligation not to discriminate. The following additional views have also been expressed and we have consid­ ered them in our analysis:

(1) The Secretary of Health and Human Services “ interprets existing laws against discrimination in Federally assisted pro­ grams as applying to the social services block grant.” See Interim Final Rules for the Block Grant Programs, 46 Fed. Reg. 48,585 (October 1, 1981) (to be codified in 45 C .F.R ., Parts 16, 74, and 96). While your memorandum indicated that the draft HHS regu­ lations did not purport to settle the issue, and that the regulations were silent on the question except for the above quoted “advisory statem ent,” the Interim Final Rules since issued articulate the view that federal regulations related to discrimination on the basis of race, color, national origin, handicap, or age are applicable to the Social Services Block G rant.4

(2) According to your memorandum, the legal staff of the Depart­ ment of Education has expressed its view that “all cross-cutting statutes are applicable to the block grants.” The Department of Education has not published regulations for the block grants.

(3) The Civil Rights Division of the Department of Justice has forwarded to us a memorandum from Stewart Oneglia, Chief of the Coordination and Review Section, to Deputy Assistant A t­ torney General D ’Agostino. This memorandum disagrees with the position taken in your memorandum, and expresses the legal conclusion that the nondiscrimination statutes apply to the two block grants.

4 The H H S Interim Final R ules for the Block G rant Program s, 46 Fed Reg 4 8 ,5 8 5 (O ct 1, 1981), provide as follows C urrent regulations in 45 C F.R Parts 80, 81, 84. and 90. w hich relate to discrim ination o n the b asis of race, color, national origin, handicap, o r ag e , apply by their term s to all recipients o f Federal financial assistance and therefore apply to all block grants. In particular, 45 C .F.R 80 4 and 84.5 require certain assurances to accom pany applications for assistance In lieu o f the assurances required by Parts 80 and 84, the Secretary w ill accept the assurances required by the Act to be part of the applications for the preventive health and health services, alcohol and drug abuse and m ental health services, m aternal and child health services, and low -incom e hom e energy assistance block grants Those assurances incorporate the nondiscrim ination provisions pertinent to the block grants e ith er specifically o r as part of a general assurance that the applicant w ill com ply with block grant requirem ents For the com m unity services, prim ary ca re , and social services block grants, the States should furnish the assurances required by 45 C .F R . 80 4 and 84 5.

85 (4) You have provided us with a copy of a memorandum to you from Jim K elly of the Office of M anagement and Budget regard­ ing “A pplicability of Crosscutting Policy Requirements to Block G ran ts.” That memorandum recommends that Title VI, the Age D iscrim ination Act, and Section 504 should be considered to apply to all block grants, and that Title IX also should be consid­ ered to apply to the Education Block.G rant. See note 5, infra. For the reasons set forth in more detail below, we conclude that Congress evidenced no clear intent to exem pt the programs or activities funded by the two block grants from the obligations imposed by the four nondiscrimination stat­ u tes.5 In the absence of a clear indication of legislative intent to the contrary, we conclude that the block grant program s are subject to the nondiscrimination statutes.

II. The Nondiscrimination Statutes

A . C overa g es a h d Purposes

All four of the relevant nondiscrimination statutes apply generally to programs or activities receiving “ federal financial assistance.” For example, Title VI, the earliest o f these four nondiscrimination statutes, provides in broad terms: N o person in the United States shall, on the ground of race, color, or national origin, be excluded from participation in, be denied the benefits of, or be subjected to discrimination under any pro g ra m o r activity receiving F ederal finan cial assistance. 42 U .S .C . § 2000d (1976) (emphasis added). The other three nondiscrimination statutes contain sim ilar prohibitions with respect to sex (in education programs),6 ag e ,7 and handicapped status.8 T he reach of these later three statutes is somewhat narrow er than that o f Title VI as to the programs or activities covered9 or the kind o f discrim ination prohibited.10

5 A ctual application o f the nondiscrim ination statutes to specific program s o r activities m ay depend o n individual circu m stan c es. S ince Title IX applies only to education p rogram s, for exam p le, its prohibition o f sex discrim ination m ay not apply to program s o r activities funded by the Social S ervices B lock G rant This m em orandum assesses only w h eth e r the nondiscrim ination statutes as w ritten and interpreted apply to the tw o block grants on the sam e basis as they w ould to other form s o f federal financial assistance 6 [N ]o person in the U nited States sh all, on the basis o f sex, be excluded from participation in , be d en ied the benefits of, o r be subjected to discrim ination under any education program or activity receiving Federal financial assistance . . 2 0 U .S C § 1681(a) (1976) (em phasis ad d e d ) 7 [N ]o person m the U nited Stales s h a ll, on the basis of age, b e excluded from participation in , be d en ied the benefits of, o r be subjected to discrim ination under any program or activity receiving Federal financial assistance 4 2 U S .C . § 6102 (1976) (em phasis added) 8 N o otherw ise qualified handicapped individual in the U nited S tates s h a ll, solely by reason of his handicap, be excluded from th e participation in, be denied the benefits of, o r be subjected to discrim ination u n d er any program or activity receiving Federal financial assistance . 29 U S .C .A . § 794 (1980 Supp. Pamph ) (em phasis added). 9 T itle IX applies only to certain education program s. 10 T h e A ge D iscrim ination A ct prohibits o n ly “unreasonable age discrim ination "S ee H R C onf. Rep N o 670. 94th C o n g ., 1st S ess 56 (1975) (em phasis in original). S ection 504 applies only to “otherw ise qualified” han d icap p ed individuals. 29 U .S C. § 794

86 (1) Title VI

The Civil Rights Act of 1964 was a comprehensive legislative program aimed at eradicating the “moral outrage of discrim ination.” See 110 Cong. Rec. 1521 (1964) (remarks of Rep. Celler). Title VI, as part of the 1964 Act, sought to achieve that goal by ensuring “once and for all that the financial resources o f the Federal Government— the commonwealth of Negro and white alike— will no longer subsidize racial discrim ination.” See 110 Cong. Rec. 7054-55 (remarks of Sen. Pastore)." The requirement that federally assisted programs or activities be nondiscriminatory was based on Congress’ power to fix the terms by which federal funds are made available, see 110 Cong. Rec. 7063 (1964) (rem arks of Sen. Pastore), and the constitutional obligation not to discriminate. S ee Regents q f U niversity o f California v. Bakke, 438 U.S. 265, 284 (1978); note 15, infra. Title VI also had roots in a “basic fairness” concept: black citizens should not be required to subsidize with their federal tax money programs or activities that discrim inated against them . See 110 Cong. Rec. 7061 (remarks of Sen. Hart) (“we do not take money from everybody to build something, admission to which is denied to some”). Title VI represented a fundamental statement of national policy intended to apply across-the-board to all programs or activities receiving federal financial assistance. Senator Humphrey, the Senate m anager of H .R. 7152, which was to becom e the Civil Rights Act of 1964, identified in his opening statement on the bill several needs for Title VI. He noted first that Title VI was necessary because some federal statutes actually appeared to contemplate grants to racially segre­ gated institutions. Second, he noted that, although most federal agencies proba­ bly already had the authority to make nondiscrimination a condition of receipt of federal funds, “[e]nactment of Title VI will eliminate any conceivable doubts on this score and give express legislative support to the agency’s actions. It w ill p la ce C ongress squarely on record on a basic issue c f national p o lic y on which Congress ought to be on record.” Third, Title VI would “insure uniform ity an d perm anence to the nondiscrimination policy.” 110 Cong. Rec. 6544 (1964) (emphasis added). Finally, Senator Humphrey explained, enactment of Title VI would end the growing practice of having to debate nondiscrimination provisions each time a federal assistance program was before Congress:

Many of us have argued that the issue of nondiscrimination should be handled in an overall, consistent way for all Federal programs, rather than piecemeal, and that it should be considered separately from the merits o f particular programs of aid to education, health, and the like. This bill gives the Congress an opportunity to settle the issue of discrimination once and for all, in a uniform, across-

11 See also Cannon v. University c f Chicago, 441 U S. 677, 704 n 36 (19 7 9 ). 110 Cong. Rec 7058 (rem ark s o f Sen ftislore) (“ F rom birth to d eath , in sickness and in w ant, in school, in jo b training, in distribution o f surplus food, in program staffing, in jo b referral, in school lunch program s, and in higher ed ucation, the N eg ro has consistently b een subjected to gross and extensive deprivation. A nd the Federal G overnm ent has paid the bill ”).

87 the-board manner, and thereby to avo id having to debate the issue in p ie c e m e a l fashion every tim e any one c f these Federal a ssist­ an ce p ro g ra m s is before the C ongress.

Id. (em phasis added). The need to settle the issue “ once and for all” was a repeated theme of the debate surrounding Title VI. Senator Pastore, one of two Title VI “captains” on the Senate floor, referred to past occurrences of “acrimonious debate” on non­ discrim ination provisions, which had led to their defeat for fear that “if the provision prevailed, the Senate might become involved in prolonged or pro­ tracted debate, or even a filibuster, and the result might be no legislation whatever.” 110 Cong. Rec. 7061. Thus, Senator Pastore explained: “It is to avoid such a situation that Title VI w ould constitute as perm anent policy of the United States G overnm ent the principle that discrimination will not be tolerated. This would elim inate all the confusion and discussion that arise every tim e a grant bill com es before the Senate.” Id. (em phasis added). Furthermore, explained Senator Pastore, enactm ent of Title VI “ would also a vo id any b a sis fo r argum ent that the fa ilu re c f C on gress to adopt such nondiscrim ination am endm ents in connection with the particular program im plied con gression al approval of racial discrimina­ tion in that program .” 110 C ong. Rec. 7062 (emphasis added). This sam e them e was sounded in the House o f Representatives by Representa­ tive Celler, w ho was the original sponsor of H .R. 7152 and also chaired the H ouse Judiciary Committee, which had jurisdiction over the Civil Rights Act. R eferring to prior attempts to enact nondiscrimination provisions as parts of individual bills, C eller explained: “Title VI enables the Congress to consider the overall issue of racial discrimination separately from the issue of the desirability of particular Federal assistance program s.” 110 Cong. Rec. 2468 (1964). Fur­ therm ore, enactm ent o f Title V I “would tend to insure that the policy of non­ discrim ination would be continued in future years a s a perm anent p a rt of our n ation al p o lic y .” Id. (emphasis added). T hus, it is clear that Title VI was intended to address, “once and for all,” racial discrim ination in federally funded program s. It represented the desire both to make a statem ent of fundamental national policy and to avoid repeated debate over that national policy. In fact, Title VI was apparently thought to answer the contention that noninclusion of discrim ination prohibitions in particular legisla­ tion am ounted to endorsement o f discrim inatory practices. O f course, the Con­ gress that enacted Title VI could not make it permanent in the sense of its being irrevocable. N evertheless, it is clear that Title VI was intended to be applicable to all program s or activities receiving federal financial assistance, and it should therefore be considered inapplicable only when there is a clear indication that C o n g re ss d e lib e ra te ly exem pted c e rta in p ro g ram s or activ itie s from its provisions.

(2) The O ther Cross-Cutting Statutes

The legislative histories of the three other nondiscrimination statutes are less illum inating. This is probably attributable to the fact that Congress had already

88 debated the concept behind this kind of legislation when it enacted Title VI. It is clear that Title IX, Section 504, and the Age Discrimination Act were modeled after Title VI. See, e .g ., Cannon v. U niversity o f Chicago, 441 U.S. 677, 694 (1979) (Title IX patterned after Title VI); NAACP v. M ed ica l Center, Inc., 657 F.2d 1322, 1331 (3d Cir. 1981) (en banc) (§ 504 and Age Discrimination Act patterned after Title VI); Brown v. Sibley, 650 F.2d 760, 768 (5th Cir. 1981) (“Congress expressly modeled the discrimination prohibition contained in sec­ tion 504 after the prohibitory language contained in Title VI and Title IX”). Thus, the fundamental purpose of legislation like Title VI, which had been thoroughly debated when Title VI itself was adopted, was not a particular focus of the debates. Instead, Congress devoted its attention to possible areas of coverage. For exam ple, the Title IX debate focused not so much on the need to have a generally applicable prohibition of sex discrimination in federally funded educa­ tion programs but instead on which institutions would be subject to its proscrip­ tions— especially whether or to what extent religious, military, and single-sex- undergraduate institutions would be covered. Nevertheless, it is clear that Title IX was intended to operate like Title VI, although it would apply in all aspects only to certain educational institutions. Thus, Representative Green, the floor manager of H.R. 7248, explained that Title IX (then Title X in the draft bill) was “really the same as the Civil Rights Act [Title VI] in terms of race.” S ee 117 Cong. Rec. 39256 (1971). And Senator Bayh, who sponsored the draft language in the Senate bill, S. 659, explained that Title IX was intended to have comprehensive application to the covered institu­ tions, in order to rem edy “one of the great failings of the American educational system . . . the continuation of corrosive and unjustified discrimination against wom en.” 118 Cong. Rec. 5803 (1972). Like Title VI, Title IX also reflected the “fairness” notion that American taxpayers should not be required to subsidize, through their taxes, program s, or activities that discriminated against som e of them. See 117 Cong. Rec. 39257 (remarks of Rep. Green quoting Secretary of HEW quoting President Nixon) (“N either the President nor the Congress nor the conscience of the Nation can perm it money which comes from all the people to be used in a way which discrim inates against some of the people.”); id. at 39252 (remarks of Rep. M ink) (“Millions of women pay taxes into the Federal treasury and we collectively resent that these funds should be used for the support of institutions to which we are denied equal access.”). That Section 504 has roots in Title VI and Title IX is also clear. Although Section 504 of the 1973 Rehabilitation Act was enacted with virtually no legislative history, the next year the Senate Labor and Public Welfare Committee included the following statement in the legislative history of the Rehabilitation Act Amendments of 1974:

Section 504 was patterned after, and is almost identical to, the anti-discrimination language of section 601 of the Civil Rights Act of 1964, 42 U .S.C . 2000d—1 (relating to race, color, or national origin), and section 901 of the Education Amendments of 1972, 42 U .S .C . 1683 (relating to sex). The section therefore

89 constitutes the establishment of a broad government policy that program s receiving Federal financial assistance shall be operated w ithout discrimination on the basis of handicap.

S. Rep. N o. 1297, 93d Cong., 2d Sess. 39-40 (1974).12 Thus, like Title VI and Title IX , Section 504 represents a broad statement of national policy intended to have application across-the-board. As explained in the 1974 Senate Report: “It is intended that Sections 503 and 504 be administered in such a manner that a con sisten t, uniform, an d effective F ederal approach to discrim ination again st h an d ica p p ed p e rso n s would resu lt.” Id. at 40 (emphasis added). The last of the nondiscrimination provisions under consideration is the Age D iscrim ination Act of 1975, w hich was enacted as part of the Older Americans A m endm ents o f 1975, a com prehensive package directed to problems of the elderly. Representative Brademas, the House manager of the Amendments, explained of the House version: “title III . . . will clearly enunciate national policy that discrim ination against the elderly based on their age will not be to le ra te d .. . .” 121 Cong. Rec. 9212(1975). The Act was intended to have broad coverage and to apply not just to the elderly but to “age discrimination at all age levels, from the youngest to the oldest.” Id. The broad applicability of the Age D iscrim ination Act was evidenced by explicit reference to its application to the most unrestricted kind of federal funding— general revenue sharing. See 42 U .S .C . § 6101 (1976) (“It is the purpose of this chapter to prohibit unreasonable discrim ination on the basis of age in program s or activities receiving Federal financial assistance, including program s or activities receiving funds under the State and Local Fiscal Assistance Act of 1972 (31 U .S .C . 1221 et seq.).”) (em phasis added). A lthough the statute was “modeled on Title V I,” see H .R . Conf. Rep. No. 670, 94th C o n g ., 1st Sess. 56(1975), its coverage is less extensive than Title VI in one significant way: it prohibits only “unreasonable” age discrimination. Further­ m ore, C ongress provided for delayed im plem entation of regulations as well as for preparation of an age-discrimination study, because of concerns that it had too little inform ation about either th e extent or the “reasonableness” of age discrim i­ nation in federally assisted program s. See 121 Cong. Rec. 37735 (1975) (rem arks o f Senator Eagleton). N onetheless, as to “unreasonable” age discrim i­ nation, the Age Discrimination Act was m odeled after Title VI and was intended to be a statem ent o f national policy. See 121 C ong. Rec. 9212 (remarks of Rep. Brademas).

(3) G eneral Application of the Four Cross-Cutting Statutes

The legislative histories of all four nondiscrim ination statutes thus evidence a congressional intent to implement as national policy their prohibitions against

12 A lthough su b se q u en t com m ents are not a substitute fo r statem ents of legislative intent at the tim e o f enactm ent, see Southeastern Com munity College v. Davis, 442 U .S . 3 9 7 ,4 1 1 (1979), this statem ent has been regularly referred to by the c o u rts, and § 504 is consistently construed as having its roots in Titles VI and IX . See, e.g , Pushkin v Regents o f U. c fC o lo ., 6 5 8 F.2d 1372 (1 0 th Cir. 1981).

90 discrimination. While the later statutes have less extensive histories, it is clear that Title VI was intended to end the need for a program-by-program debate about the prohibition of racial discrimination. There is ample basis for concluding that Congress was implementing that same intent with the other three statutes by choosing Title VI as the model for those statutes and by enacting essentially the same broadly applicable language. Nothing in the history suggests that Congress intended later Congresses to be required to specify the applicability of these statutes to individual funding legislation— in fact, the evidence is to the contrary. That the statutes have a broad sweep is also clear from their application not just to federal categorical programs, but to all “Federal financial assistance,” “by way of grant, loan, or con tract other than a contract of insurance or guaranty,” see 20 U .S.C . § 1682;42 U .S.C . § 2 0 0 0 d - l;4 2 U .S.C . § 6103(a)(4) (adding“entitle­ ment” to list) (emphasis added). See also 29 U .S .C . § 794a(2) (providing that remedies, procedures and rights set forth in Title VI shall be available under § 794). In fact, the Age Discrimination Act makes clear that the term “Federal financial assistance” includes general revenue sharing, see 42 U .S.C . § 6101, a form of federal assistance that is essentially unrestricted as to the purposes for which it may be used. Thus, the statutes are fundamental pieces of legislation intended to remedy perceived wrongs to those discriminated against on the basis of race, sex, handicapped status, and age. Their language and legislative histories evidence a broad purpose to be given effect through across-the-board application whether or not a particular program specifically incorporates the nondiscrimination statutes.

B. Enforcement Procedures

To achieve the goal of ending discrimination on the bases prohibited by the statutes, Congress has provided for an administrative scheme of enforcem ent, which favors conciliation over termination of funds and is designed to provide certain safeguards for fund recipients. See 110 Cong. Rec. 7066 (1964) (remarks of Sen. Ribicoff). Thus, the statutes direct the issuance of rules or regulations of general applicability and prohibit termination of funds until the recipient is informed of its failure to comply and the administrative agency has determined that voluntary com pliance cannot be secured. Termination may occur only after filing a report with Congress and the expiration o f a 30-day waiting period after filing such a report. Termination is limited to the particular noncomplying program. See 20 U .S .C . § 1682; 42 U .S .C ., § 2 0 0 0 d -l; id ., § 6 1 0 4 .13 Each agency that administers federal financial assistance issues clarifying regulations as to the relevant nondiscrimination statutes, setting forth the discriminations prohibited, assurances required, and com pliance information. See, e .g ., 45 C .F.R ., Parts 80, 81, 84, 90 (1980). By Executive Order 12250, the Attorney General is directed to coordinate implementation and enforcement of Title VI, Title IX , Section 504, and any other provision prohibiting discrimination in federally assisted programs.

n By express provision. S ection 504 is to be adm inistered under the sam e term s as Title VI.

91 W hen C ongress has actually specified that the nondiscrimination provisions apply to particular legislation extending financial assistance, it often has also provided for a different or more detailed administrative enforcement mechanism than is provided in the underlying cross-cutting statutes, or has added to the categories of prohibited discriminations. See, e .g ., State and Local Fiscal Assist­ ance Act o f 1972, as amended, 31 U .S .C .A . § 6716 (1982); Community D evelopm ent B lock Grant of 1974, 42 U .S .C . § 5309 (1976); Omnibus Crime C ontrol and Safe Streets Act o f 1968, as am ended, id. § 3789d (1982). These differences may account for Congress’ making specific reference to the non­ discrim ination statutes. Thus, specific reference to the nondiscrimination statutes is not necessarily an indication that Congress believes the statutes to be otherwise in ap p licab le.14 14 T h e S tate and L ocal F iscal Assistance A ct provides: N o person in the U nited States s h a ll, on the ground of race, color, national origin, o r sex, be ex cluded from participation in .b e den ied the benefits of, o r be subjected to discrim ination un d er any p rogram o r activity o f a State governm ent o r unit of local governm ent, w hich governm ent o r unit receiv es funds m ade available under subchapter I . . . A ny prohibition against discrim ination on the basis o f ag e u n d e r the A ge D iscrim ination A ct o f 1975 [42 U .S C 6101 et seq .] or with respect to an o therw ise qu alified handicapped individual as provided in section [504] shall also apply 31 U S .C . § 1242(a)(1) (1976). T he inclusion o f a reference to the Age D iscrim ination A ct in this revenue sharing act illustrates that specific reference to a c ro ss-cu ttin g statute does not necessarily reflect a cong ressio n al determ ination that the cross-cutting statute is otherw ise in ap p licab le To the contrary, the A ge D iscrim ination A ct itself explicitly provides that “ federal financial assistan c e” includes revenue sharing under the Fiscal A ssistance A ct and w ould have been applicable in any event. T h e F iscal A ssistance Act did esta b lish d ifferen t en fo rcem en t procedures and broader applicability, h ow ever A s understood by the sponsor of th e 1976 nondiscrim ination am endm ent to the Fiscal A ssistance A ct, the p ro hibition against ag e discrim ination in th e revenue sharing act had independent significance T h is provision is sim ilar to the provisions o f the A ge D iscrim ination A ct o f 1975 T hat A ct prohibits '‘u n reaso n ab le” age discrim ination in program s and activities receiving Federal financial assistan c e, in cluding revenue sharing funds. T he C om m ittee intends that its am endm ent to the R evenue S h arin g A ct be considered a separate and independent statutory right that age discrim in a­ tio n not be p ractice d by governm ents receiving revenue sharing funds. It is im portant that the C o m m ittee am en d m en t be interpreted in this m anner, rather than be viewed strictly as an en d o rse­ m ent o f the C o n g ress’ actions in th e 1975 A ge D iscrim ination A ct U nlike the 1975 A ct, the C o m m ittee bill w ould prohibit age discrim ination in all activities o r program s o f revenue sharing recip ien ts, rather than m erely those in those program s and activities receiving revenue sharing funds A s indicated ab o v e, th e Com m ittee ad o p ted this approach in its bill because of the serious problem of the fungibility o f funds Also, u n lik e the 1975 A ct, the C om m ittee m easure establishes m ore d etailed and autom atic suspension a n d term ination procedures, and d o es not delay effectiveness of the provision until January I, 1979 Because o f these significant distinctions, in term s o f the b ro ad n ess o f th e p rohibition and the rem edies jsrovided, it is im perative that the C om m ittee bill not be su b jec t to a lim ited o r narrow interpretation based on the 1975 A ge D iscrim ination A ct Rather, the Committee bill and the 1975 legislation are to be viewed as independent yet complementary measures. B oth seek to insure the elim ination o f unreasonable age discrim ination w hich is federally financed, b u t they nevertheless establish different approaches to the overall prohibition as well as to the en fo rcem en t m echanism The C om m ittee intends that through cooperation agreem ents (d is­ cu ssed h erein after) the various D ep artm en ts responsible for enforcem ent under the tw o laws w ill co o rd in ate, to the g reatest extent p o ssib le , those enforcem en t efforts. H .R Rep. N o 1165, 94th C o n g ., 2d Sess 9 8 n.4a (1976) (additional views o f Rep. R o b ert F D rinan) (em phasis added). It also appears that inclusion o f a nondiscrim ination provision in the Safe S treets A ct need not be interpreted to signify a co n g ressio n al b e lie f that Title VI w o u ld otherw ise be inapplicable See H. Rep. N o. 249, 93d C o n g ., 1st S ess. 7 [1973]- For the first tim e the A ct itself co n tain s provisions protecting civ il rights and civil liberties. In ad d itio n to deleting prohibitions ag a in st conditioning a g ran t on th e adoption by an applicant o f a q u o ta sy stem o r o th e r program to achieve racial b alan ce, the bill reiterates the an ti-d iscn m m atio n req u irem en ts o f title V I o f the Civil R ig h ts A ct of 1964, but also pro h ib its discrim ination on the basis o f sex T h e bill stren g th en s the ban on discrim ination by making clear that thefu n d cut-off provisions c f section 509 c f the Act and c f title VI c f the Civil Rights A c t o f 1964 both apply, an d that appropriate civ il actions m ay be filed by the A dm inistration and that “ pattern and practice” su its m ay be filed by the A ttorney G en eral. (E m p h asis added )

92 C. Summary

The statutory language and legislative histories of the four nondiscrimination statutes reveal that the statutes are congressional statements of fundamental national policy intended to have across-the-board application not just to federal categorical programs but to nearly all forms of federal financial assistance, including grants, loans, and most contracts. W hile Title VI and Title IX might be said to prohibit discrimination that is also prohibited by the Constitution, it is not clear that they are merely redundant of existing rights.15 In any event, Section 504 and the Age Discrimination Act prohibit discrimination not otherwise prohibited by the Constitution. Additionally, the four statutes provide for administrative means of enforcem ent that are designed to provide certain safeguards while also accomplishing the objective of ending discriminatory activities. See 110 Cong. Rec. 7066 (1964) (remarks of Sen. Ribicoff). Thus, the statutes stand as im portant components of the national body of antidiscrimination law, intended to apply to all programs or activities receiving federal financial assistance without being explicitly referenced in subsequent legislation. They should therefore be considered applicable to all legislation authorizing federal financial assistance— which includes not only grants and loans, but also most contracts— unless Congress evidences a contrary intent.

III. The Block Grants

A. Background

Federal funding has traditionally been in the form of categorical grants, which can be used only for specific programs designated by Congress and as directed by usually detailed federal regulations.16 Two other forms of federal funding, block grants17 and general revenue sharing, provide for less restrictive use of federal funds by the states. Block grants generally consolidate several categorical programs into “ federal payments to state or local governments for generally

15 Language in the Bakke case suggests that T itle VI may be coextensive w ith constitutional guarantees. See Regents c f University c f California v. Bakke. 438 U .S 265. 284 (1978) (“ {ex am in atio n o f the v olum inous legislative history o f Title VI reveals a congressional intent to halt federal funding o f en tities that violate a prohibition of racial discrim ination sim ilar to that o f the C onstitution"). In Lau v Nichols. 414 U .S . 563 (1974). however, the S uprem e C ourt had applied a “d iscnm inatory-effects” test under Title VI It has been suggested that Bakke overruled Lau sub silentio, thus requiring pro o f of discrim inatory intent, see Washington v Davis, 4 2 6 U S. 229. 239 (1976), but the C ourt has declined to rule w hether Title VI incorporates the constitutional stan d ard . See Board c f Education v. Harris. 444 U S 130. 149 (1979) Som e courts therefore have applied an “ im pact-only” analysis to suits bro u g h t under the statutes See NAACP v Medical Center, Inc . 657 F 2d at 1331 (3d Cir. 1981) (en banc) (Title V I, § 5 0 4 , and A ge D iscrim ination A ct) ,6 “ W hat truly characterizes a categorical grant is that it is adm inistered by the Federal bureaucracy, and it is this aspect o f categorical program s that President Reagan finds m ost o b jectionab le.” 127 C ong R ec. S 682I (daily ed. June 2 4 , 1981) (rem arks of Sen Hatch). 17 Block grants are not new to the Budget R econciliation Act See, e g . . O m nibus C rim e C ontrol and S afe S treets A ct o f 1968, as am en d ed , 42 U S C §§ 3 7 0 1 -3 7 9 7 , C om m unity D evelopm ent Block G rant o f 1974, 42 U .S .C §§ 5 3 0 1 -5 3 2 0 See generally Block Grants' An O ld Republican Idea, l9 8 1 C o n g .Q 4 4 9 (M a r 14, 1981). In fact, the Social Services B lock G rant am ends Title XX o f the Social S ecurity A ct, 4 2 U .S .C § 1397, an existing block grant A lthough C ongress did not explicitly incorporate nondiscrim ination provisions in the ea rlier version o f T itle X X , it has been assum ed that nondiscrim ination provisions apply to program s o r activities receiving T itle XX assistance See Brown v. Sibley. 650 F 2d 7 6 0 .7 6 9 (5th Cir. 1981) (§ 504 inapplicable because no allegation that tw o program s funded by Title XX w ere discrim inatonly m anaged).

93 specified purposes, such as health, education, or law enforcement. The money must be spent on programs in the general area, but state or local officials make the decisions on specifically how the money is used.” 1981 Cong. Q. 449 (Mar. 14, 1981). Put another way, “what distinguishes a block grant [from a categorical grant] is that it is directed at a broad purpose, and is administered by the grant recipient.” S ee rem arks of Sen. Hatch, 127 Cong. Rec. S6822 (daily ed. June 24, 1981). General revenue sharing is considered to be at the opposite end of the scale from categorical grants, because its use is “virtually unrestricted.” See 1981 C ong. Q. 449. S ee also G oolsby v. B lum enthal, 581 F.2d 455, 465 (5th Cir. 1978) (Thom berry, J., dissenting) (revenue sharing is “vastly different” from block grants), opin ion adopted in relevant portion a s opinion of the court, 590 F.2d 1369 (5th Cir.) (en banc), cert, denied, 444 U.S. 970 (1979); Ely v. Velde, 497 F.2d 252, 256 (4th Cir. 1974) (“A block grant is not the same as unencum ­ bered revenue sharing, for the grant com es with strings attached.”). The initiative to replace categorical program s with block grants to the states stem s from several significant concerns. First, the block grants concept reflects a fundam ental belief that state and local entities are better suited to choosing the proper program s or activities fo r their citizens than is the federal governm ent.18 D ecentralization of allocational decisionm aking is also intended to result in increased efficiencies.19 As Senator Hatch explained in Senate debate over the R econciliation Act:

The block grants will reduce bureaucratic overhead. They will give the states greater flexibility for efficient management and for the setting of priorities. Scarce dollars must be used for the most pressing needs in the m ost practical way. The huge and remote Federal bureaucracy is not suited to these purposes. The States are better situated to do the job.

127 Cong. Rec. S6821 (daily ed. June 24, 1981). Increased efficiency through elim ination of numerous regulatory requirements is intended to enable the federal governm ent to fund program s at lower levels than would otherwise be necessary and thus to result in substantial savings.

18 See L etter from S ecretary o f Education T .H . Bell to T h o m as P. O ’N eill, Jr (A pr 28, 1981) (transm itting p roposed E lem e n tary and S econdary E ducation C onsolidation A ct o f 1981) (“The proposed legislation w ould perm it S tates and lo calities to m ake the d ec isio n s, as they m o st appropriately can , as to how, when and w here educational services should be provided, ab o u t priorities am o n g needs, and about w hat services should be offered ” ), L etter from H H S Secretary R ichard Schw eiker to T hom as P. O ’Neill (transm itting proposed Social S ervices B lock G ran t) (“th e proposal will h elp to restore to the S tates the m ajor role w hich should be theirs in assessin g and responding to the social services needs of their population. By rem oving requirem ents and earm arks g iving priority to certain services and certain population gro u p s, the draft bill will greatly increase the ability o f S tate and local governm ents to concentrate th e ir resources on m eeting their m ost serious social service n eed s.” ) See also 1981 C ong Q 449 (M ar 14, 1981) (quoting A dm inistration's Mar. 10 budget “T he federal governm ent m W ashington has no special w isdom in dealing w ith m any o f the social and educational issues faced at the state and local level ” ) }9See, e g .. L etter from H H S Secretary R ic h ard Schw eiker, supra note 18 (“ by elim inating m any Federal adm inistrative req u irem en ts, reporting requirem ents, standards and the like, the draft bill w ill perm it more efficient adm inistration o f the S tates’ social services pro g ram s, thus freeing resources for the provision o f services and p ro d u cin g significant co st sav in g s” ).

94 B. The Education a n d the Social S ervices Block G rants

The Elementary and Secondary Education Block Grant, known as the “Educa­ tion Consolidation and Improvement Act of 1981,” addresses two areas of education funding: (1) funding for the educational needs of disadvantaged children (Chapter 1) and (2) consolidation of federal programs previously under several other program s “to be used in accordance with the educational needs and priorities of State and local educational agencies as determined by such agen­ cies.” (Chapter 2.) In both chapters, Congress has clearly expressed its intent to place supervision, direction, and control in the hands of state and local au­ thorities. See §§ 552, 561(a)(6), 95 Stat. at 463, 562. Chapter 1 funding is to be accomplished “ in a manner which will eliminate burdensome, unnecessary, and unproductive paperw ork,” id. § 552, and Chapter 2 is designed to “greatly reduce the enorm ous administrative and paperwork burden imposed on schools at the expense of their ability to educate children.” Id. § 561(a). The Social Services Block Grant amends an existing social services block grant, Title XX o f the Social Security Act, 42 U .S.C . § 1397. S ee note 17, supra. Its purposes are

consolidating Federal assistance to States for social services into a single grant, increasing State flexibility in using social service grants, and encouraging each State, as far as practicable under the conditions in that State, to furnish services directed at the goals of— (1) achieving or maintaining economic self-support to pre­ vent, reduce, or eliminate dependency; (2) achieving or maintaining self-sufficiency, including re­ duction or prevention of dependency; (3) preventing or remedying neglect, abuse, or exploitation of children and adults unable to protect their own interests, or preserving, rehabilitating or reuniting families; (4) preventing or reducing inappropriate institutional care by providing for community-based care, home-based care, or other forms of less intensive care; and (5) securing referral or admission for institutional care when other forms of care are not appropriate, or providing services to individuals in institutions.

See § 2001, 95 Stat. at 867. Both of these block grants enacted by Congress are somewhat more limited than those initially proposed by the Administration. In the education area, for example, the Administration sought to consolidate 44 existing programs into two block grants. See 127 Cong. Rec. S4329 (daily ed. May 4, 1981) (remarks of Sen. Hatch introducing Administration’s draft legislation). Proposed Chapter 1 sought to consolidate federal assistance for several programs, including m ajor

95 federal program s for disadvantaged children (Title 1 of the Elementary and Secondary Education Act (ESEA)) and handicapped children (Pub. L. 94-142). C hapter 1 as enacted by Congress, however, left Title I of the ESEA intact as to form ula and m ethod of distributing funds, and purposes for using those funds, and did not consolidate programs for the handicapped. Chapter 2 consolidated approxim ately 30 smaller program s into a single block grant. S ee 127 Cong. Rec. H 5795-5796 (daily ed. July 3 1 , 1981) (rem arks of Rep. Ashbrook explaining Conference resolution). T he A dm inistration’s proposed Social Services Block Grant also sought to consolidate and repeal numerous programs: Title XX of the Social Security Act; the child welfare and foster care and adoption assistance programs under parts B and E of Title VI o f that Act; the authority in five titles of that Act for provisions of social services in the territories; the Developmental Disabilities Assistance and Bill o f R ights A ct; the Child A buse Acts of 1974 and 1978; the Runaway and H om eless Youth Act; the Rehabilitation Act of 1973 (except definition of “handicapped” and nondiscrimination provisions); and certain sections of the Com m unity Services Act of 1974. The Social Services Block Grant eventually adopted by Congress, however, essentially am ended Title XX, the existing social services block grant. A separate com m unity services block grant was also enacted. S ee § 671, 95 Stat. at 511. A lthough, Congress clearly intended the block grant mechanism to decrease federal involvem ent in program adm inistration, the Education and Social Serv­ ices Block G rants are not without federal requirements. Chapter 1 of the Educa­ tion Block G rant, for example, essentially leaves intact Title 1 of the Elementary and Secondary Education Act, although rem oving “those detailed requirements and instructions on how to conduct programs which caused most of a staggering 5 m illion hours o f paperwork each year. . . See 127 Cong. Rec. H5796 (daily ed. July 31, 1981) (remarks of Rep. Ashbrook explaining conference resolution). Funds must be used only for specified purposes and are distributed according to prior form ulas and methods. T he states may be required to keep records neces­ sary for fiscal audit and program evaluation, and local agencies may receive funds only after the state approves applications expressing intended uses of the funds. The application must contain assurances as to accurate recordkeeping, which m ust reflect that programs and projects are conducted in attendance areas with high concentrations of low-income children, and that the need for such program s, and their size, shape, and quality have been assessed and evaluated. S ee § 557(b), 95 Stat. at 466. Chapter 2 requires states to utilize an advisory com m ittee representing school children, teachers, parents, local boards, adm in­ istrators, institutions of higher education, and the state legislature, for advice and annual evaluation, and requires recordkeeping for fiscal accountability, as well as requiring that local agencies file applications with the states and keep necessary records. M aintenance-of-effort provisions are retained in a modified form. Subchapter A funds may be used for basic skills development. Subchapter B funds may be used for educational improvement and support services and subchapter C funds for special projects, with both subchapters providing a list of

96 specific “authorized activities.” The intent to decrease federal involvement is manifested not by a prohibition of federal regulations but rather by the authoriza­ tion of a relatively narrow range of regulations in matters related to “planning, developing, implem enting, and evaluating programs and projects. . . .” See § 591, 95 Stat. at 480. Similarly, under the Social Services Block G rant, the states are required to develop, make public, and submit to the Secretary of HHS a report on intended use of the funds, including information on the types of activities to be funded and the individuals to be served. Every two years, detailed reports regarding expend­ itures must be submitted by the states and audits must be conducted. Federal requirements as to amounts to be spent on welfare recipients and income levels of recipients are not included, however. The states are specifically prohibited from using the funds for seven forms of services, ranging from land purchases to cash payments. See gen erally H.R. Conf. Rep. No. 208, 97th C ong., 1st Sess. 654, 989-92 (1981). All block grants enacted by the Reconciliation Act are also subject to the provisions of §§ 1741—45 of that Act. Section 1742 requires each state to report on the proposed use of block grant funds, including: (I) goals and objectives; (2) activities to be supported, areas to be served, and “categories or characteristics” of individuals to be served; and (3) the criteria and method for fund distribution. Pursuant to § 1745, states are required to conduct financial and compliance audits of block grant funds.

C. Theoretical A pplication c f the N ondiscrim ination Statutes to Block G rants

The two block grants are not unrestricted grants of federal monies to be used by the states in any m anner they choose. While clearly consolidating and “defed- eralizing” prior program s, the block grants nevertheless specify the purposes for which the funds are to be used (though permitting some selection within the group of perm issible purposes) and impose reporting and other requirements designed to ensure the accountability of those receiving the funds. These require­ ments enable tracing of block grant funds to specific programs and activities. Thus, it appears that the cross-cutting requirements of nondiscrimination can be imposed on specific programs or activities receiving block grant funds. Addi­ tionally, fund termination, if necessary, can be accomplished as to those specific programs or activities found to have discriminated. Even general revenue sharing to state and local governments, which is a form of federal assistance not limited to specific areas or purposes, is subject to the nondiscrimination laws. Revenue sharing is generally considered to entail even less federal involvement than block grant funding. Congress has nevertheless made explicit its intention that the nondiscrimination statutes apply to a ll pro­ grams or activities of a recipient government. See note 14, supra. State or local governments may avoid the nondiscrimination requirements only by dem onstrat­ ing, “by clear and convincing evidence,” that the program or activity alleged to be discriminating is not funded in whole or in part with revenue-sharing funds.

97 S ee State and Local Fiscal A ssistance Act of 1972, as amended, 31 U .S.C . § 6716 (1982). That Congress made nondiscrimination requirements explicitly applicable to revenue sharing is not necessarily an indication that they would otherw ise be inapplicable. S ee note 14, supra. Moreover, it is clear that Congress chose to require more stringent enforcem ent— and to make its nondiscrimination provision applicable to all activities of a recipient government (except where com pletely unrelated to federal funding)— because of the poor nondiscrimination enforcem ent record of the revenue sharing program to date. See H.R. Rep. No. 1165, cited su pra note 14, at 13. Thus, even at the opposite end of the scale from traditional categorical funding, when providing federal assistance virtually unre­ stricted as to purpose or use, C ongress has made clear that the national policy against discrim ination applies. The cross-cutting statutes apply by their terms to all programs or activities “ receiving Federal financial assistance.” Absent evidence of congressional in­ tent to the contrary, there is no indication apparent from the language of the block grants that C ongress intended block grant funding to be other than “ federal financial assistance” subject to the provisions of the nondiscrimination statutes. In fact, the two relevant block grants specifically use the terms “ financial assistance” or “ Federal assistance.” S ee Elementary and Secondary Education Block G rant, §§ 552, 561; Social Services Block Grant, § 2001. Furthermore, application of the nondiscrimination statutes to the block grants is both consistent with the congressional intent to have the nondiscrimination statutes apply to all federal financial assistance, and consistent with the principle underlying passage of the cross-cutting statutes, that federal taxpayers should not be required to subsidize program s or activities that discrim inate against some of them. Thus, absent som e indication to the contrary in the language or legislative history of the two relevant block grants, the nondiscrimination statutes should be considered to apply to the block grant programs or activities. We therefore proceed to consider w hether C ongress has evidenced an intent that the statutes not apply.

IV. The Applicable Legal Standard The Education and the Social Services Block Grants do not specifically exempt program s or activities funded by them from the obligations not to discriminate em bodied in Title VI, Title IX, Section 504, and the Age Discrimination Act. N evertheless, due to the importance of the question, it is appropriate to consider w hether there is any indication, in the statute or its legislative history, to suggest that C ongress actually intended such a result. The courts generally require a clear indication of such intent, because Congress is presumed to be aware of the entire body o f law, and thus to be aware of prior statutes when it enacts later ones. Presum ably C ongress would m ake express its intent to modify or preclude the applicability of a prior statute that would otherwise embrace the subject of the later enactm ent. S ee 1A, C. Sands, Sutherland Statutory Construction, § 23.10 (3d ed. 1972). C ourts are reluctant, therefore, to find that Congress effected a partial “ repeal” or “ am endm ent” of a prior statute by implication. See note 20, infra, and accom panying text.

98 The classic “ repeal by im plication” is a total abrogation of a previous statutory provision by enactment of subsequent legislation. See, e .g ., M orton v. M ancari, 417 U .S. 535 (1974) (rejecting contention that Equal Employment Opportunity Act impliedly repealed Indian preference provisions of Indian Reorganization Act); cf. U nited States v. U nited Continental Tuna C orp., 425 U.S. 164 (1976) (“ repeal” urged would not actually abrogate prior statute, but would make it ineffectual in nearly all cases). O ther implied changes, such as implied “ exem p­ tions,” see G oolsby v. Blumenthal, 581 F.2d455, 461 (5th Cir. 1978), re v'd en banc on other grounds, 590 F.2d 1369 (5th Cir.), cert, denied, 444 U.S. 970 (1979), or implied “ am endm ents,” see E ly v. Velde, 451 F.2d 1130, 1134 (4th Cir. 1971), however, are also analyzed according to the rules applicable to repeals by implication. Two recent Suprem e Court cases illustrate the rules of construction to be applied to questions such as the one presented by your memorandum. In A llen v. McCurry, 449 U .S. 90 (1980), the Court considered whether 28 U .S.C . § 1738 and traditional principles of collateral estoppel apply to suits brought under 42 U .S.C . § 1983. M cCurry had unsuccessfully sought to suppress evidence in his state criminal trial. H e ja te r brought a federal civil rights action under § 1983 against the police officers who had entered his home and seized evidence. M cCurry argued that he should not be bound by the state court’s disposition o f his federal constitutional claim because he had had no opportunity to litigate that claim in federal court. Thus, he asserted in effect that § 1738, which requires federal courts to give the same effect to state court judgments as the state court would, and traditional principles of collateral estoppel were inapplicable to his claim brought under § 1983. The Supreme Court analyzed this argument as one suggesting that § 1983 impliedly “ repealed” or “ restricted” both collateral estoppel principles and the statutory forerunner to § 1738. The Court rejected this argument, applying the maxim that repeals by implication are disfavored, even though “ one strong m otive” behind enactment of § 1983 was “ grave congressional concern that the state courts had been deficient in protecting federal rights,” see id. at 9 8 -9 9 , a motive that provided some support for the “ repeal” or “restriction” asserted by McCurry. Similarly, in TVA v. H ill, 437 U .S. 153 (1978), the Court was asked to decide whether the Endangered Species Act permitted an injunction against operation of the nearly completed Tellico Dam because of the dam ’s effect on an endangered species. Congress had continued to appropriate money for the dam notwithstand­ ing the Appropriations C om m ittee’s knowledge of the effect of the dam on the habitat of the endangered species. Tennessee Valley Authority (TVA) argued, therefore, that the subsequent appropriations constituted a congressional deter­ mination to permit operation of the dam despite the provisions of the Act. The Court, in an opinion by the Chief Justice, framed the issue in terms of “whether continued congressional appropriations for the [Dam] after 1973 constituted an implied repeal of the Endangered Species Act at least as to the pa rticu la r dam ." Id. at 156 (emphasis added). The Court determined that to find an implied

99 “repeal” under the circumstances of the case would violate the cardinal rule disfavoring such repeals. T h e se c a se s illu strate th a t it is a p p ro p riate to ap p ly the “ re p e a l” o r “am endm ent” by implication analysis to the contention that Congress did not intend these four nondiscrimination statutes to apply to programs or activities funded by the two block grants. Because the cross-cutting nondiscrimination statutes apply by their terms to all program s or activities “receiving Federal financial assistance,” they apply to the block grants unless Congress specifically exem pted the block grants or, by im plication, “amended” the cross-cutting provisions to prevent their otherwise automatic applicability. See also, e .g ., Watt v. A laska, 451 U .S. 259 (1981) (contention that Wildlife Refuge Revenue Sharing A ct, rather than earlier enacted M ineral Leasing Act, controls distribu­ tion of m ineral revenues from wildlife refuges) (dissent contended that disfavor of repeals by implication should have force only when “general statute, wholly occupying a field, eviscerates an earlier and m ore specific enactment of limited coverage . . . w ithout an indication of congressional intent to do so ,” id. at 280); R adzanow er v. Touche Ross & C o ., 426 U.S. 148 (1976) (contention that when bank is sued under Securities Exchange Act it is subject to venue provisions of that A ct, rather than to general venue provisions of previously enacted National Bank Act); U n ited S tates v. B orden C o ., 308 U .S. 188 (1939) (contention that A griculture M arketing Agreement Act removed agricultural marketing from purview of Sherm an Antitrust Act). T he Fourth Circuit has applied this standard under analogous circumstances. E ly v. Velde, 451 F.2d 1130 (4th Cir. 1971), required the Fourth Circuit to determ ine the im plied applicability of two other “cross-cutting” laws— the N a­ tional Historic Preservation Act (NHPA) and the National Environmental Policy Act (NEPA)— to a law enforcement block grant— the Omnibus Crime Control and Safe Streets A ct o f 1968. Because the Safe Streets Act generally prohibited federal interference in the spending of grants except as expressly authorized, the Law Enforcem ent Assistance Administration (LEAA) argued that it could not apply the requirem ents of NHPA and NEPA. Id. at 1133. The court rejected the argum ent that the block grant and the cross-cutting laws were irreconcilable, however, applying the “strong presum ption against one statute repealing or am ending another by im plication,” see id. at 1134, to examine the purposes and policies of the allegedly conflicting statutes and give effect to all three. But cf. G o o lsb y v. B lum enthal, 581 F.2d 455, 464 (5th Cir. 1978) (Thomberry, J., dissenting) (Revenue-Sharing and Uniform Relocation Assistance Acts irrecon­ cilable; only acts specifically m entioned in Revenue-Sharing Act applicable) (distinguishing block grants from revenue sharing because revenue sharing provides for automatic distribution and because of difficulty in determining how revenue-sharing m oney is spent), opinion a d o p te d in relevant portion as opinion c f court, 590 F.2d 1369 (5th Cir.) (en banc), cert, denied, 444 U.S. 970 (1979). These and other cases establish (1) that C ongress’ intention to exempt the block grants from the nondiscrimination statutes should be assessed in the context o f w hether Congress intended the block grants to act as an implied partial

100 “repeal” of, or “am endm ent” to, the earlier statutes; and (2) such “repeals” or “amendm ents” by implication are not favored. See M orton v. M ancari, 417 U .S. at 549. In short, where possible, the earlier and later statutes will be read as consistent with each other, see Watt v. A laska, 451 U.S. 259, 267 (1981) and, absent a clear indication to the contrary, courts will presume that the later statute was enacted against the background of the earlier one, and was intended to be affected by it. This analysis applies both to the total abrogation of a statute, see id . , and to partial repeals or amendments affecting only a “tiny fraction” of cases brought under either the earlier or later statute, see Radzanower v. Touche Ross & C o ., 426 U .S. at 156.

The presumption against implied repeals is classically founded upon the doctrine that the legislature is presumed to envision the whole body of the law when it enacts new legislation, and, therefore, if a repeal of the prior law is intended, expressly to designate the offending provisions rather than to leave the repeal to arise by necessary implication from the later enactment. Still more basic, however, is the assumption that existing statutory and common law, as well as ancient law, is representative of popular will. As traditional and customary rules, the presumption is against their alteration or repeal. The presumption has been said to have special application to important public statutes of long standing.20

1A, C. Sands, Sutherland Statutory Construction § 23.10 (4th ed. 1972) (foot­ notes omitted). The presumption against implied repeals o r amendments is given effect through a requirem ent that the legislature’s intention to repeal must be “clear and m anifest.” U nited S tates v. Borden C o., 308 U.S. 188, 198 (1939). “In practical terms, this ‘cardinal rule’ means that ‘[i]n the absence of some affirmative showing of an intention to repeal, the only permissible justification for a repeal by implication is when the earlier and later statutes are irreconcilable.’ ” TVA v. H ill, 437 U .S. at 190 (quoting M orton v. M ancari, 417 U .S. at 550). The Supreme Court has explained: “We must read the statutes to give effect to each if we can do so while preserving their sense and purpose.” Watt v. Alaska, 451 U.S. 259, 267 (1981). Thus, we must examine whether Congress intended the cross-cutting statutes to be inapplicable to the Education and the Social Services Block Grants by first attempting to ascertain if Congress made a “clear and manifest” expres­ sion of such intention, especially whether it made an affirmative expression of

20 T he presum ption against im plied repeals and am endm ents, strongest w hen applied to longstanding im portant public statutes, has force w hen m ore m inor statutes are involved Compare Radzanower, 426 U S at 154, w ith id at 158, 164-65 (S tevens, J , dissenting) (arguing that the rule against im plied repeals should apply only to w ell- established and clearly defined old rules reflecting im portant national policy, but not to m inor laws o f w hose existence and m eaning C ongress m ight have been unaw are). T he nondiscrim ination statutes, w hile not all of longstanding, clearly articulate im portant national policy M oreover, they are not the kind o f statutes o f w hich C ongress is likely to have been unaware T hus, the presum ption against their im plied repeal o r am en d m en t w ould seem to be particularly strong

101 such intent. If it did not do so, we must then examine whether the Education and the Social Services Block G rants and the four cross-cutting nondiscrimination statutes are irreconcilable. In the absence of either a clear expression of intent or irreconcilability between the tw o sets of statutes, the plain language of the nondiscrim ination statutes, which would otherwise require them to apply to these two block grants, will prevail.

V. Application of the Legal Standard

T here are three possible indicators of congressional intent not to apply the nondiscrim ination statutes to the Education and Social Services Block Grants: (A) the absence of any specific reference to the obligation not to discriminate; (B) C ongress’ failure to refer to the nondiscrimination provisions in these two block grants, w hile specifically referring to them in six other block grants; and (C) Congress’ apparent deletion o f nondiscrimination provisions from the Admin­ istration’s proposed block grant legislation. Because we conclude that none of these provides a clear indication of congressional intent, we also examine (D) w hether C ongress’ purposes in enacting these two block grants may be said to conflict with the nondiscrimination statutes, so as to require that the non­ discrim ination statutes be inapplicable to these block grants.

A . A bsen ce o f Specific Reference to the N ondiscrim ination Statutes

It is clear from their legislative histories that the nondiscrimination statutes were intended to apply to federal financial assistance without Congress having to consider their applicability every time it authorized such assistance. Further­ m ore, the block grants at issue authorize the grant of “Federal assistance” or “ financial assistance,” and the relevant federal agencies have generally applica­ ble regulations for enforcing the nondiscrimination statutes, which can be applied to the block grants without issuance of new regulations. See, e .g ., note 4, su pra. T hus, there is no facially apparent reason why the nondiscrimination statutes should be considered inapplicable to the Education and the Social Services Block G rants merely because Congress made no specific reference in those block grants to the obligation not to discriminate. Since a central purpose of the nondiscrim ination statutes was in fact to avoid the need for such specific application, we conclude that the mere absence of nondiscrimination provisions, w ithout m ore, does not suggest that the four nondiscrimination statutes should be considered inapplicable.

B . The "E xpressio U nius” D octrine

As an alternative indication o f congressional intent not to apply the non­ discrim ination provisions, we have also considered the fact that not all the block grants are m erely silent as to application of the nondiscrimination statutes. Six other HHS and Education block grants contain specific nondiscrimination provi­ sions. Four— (1) Preventive Health and Health Services, (2) Alcohol and Drug

102 Abuse and Mental Health Services, (3) Primary Care, and (4) Maternal and Child Health Services— specify in relevant part that, for purposes of applying Title VI, Title IX, Section 504, and the Age Discrimination Act, “programs and activities funded in whole or in part with funds made available under this title are considered to be program s and activities receiving F ederal financial assistance." See Reconciliation Act, §§ 901 (1908(a)(1); 1918(a)(1); 1930(a)(1)), 2192(a) (508(a)(1)) (em phasis added). T hese four block grants do not stop th ere, however, but also prohibit discrimination on the ground of sex or religion, and provide for a 60-day compliance period before resorting to enforcement under, inter alia, the cross-cutting statutes. Two other block grants— Community Serv­ ices, § 671, and Low-Income Home Energy Assistance, § 2601— prohibit dis­ crimination or exclusion from benefits on the basis of race, color, national origin, or sex, and further direct that “ [a]ny prohibition against discrimination on the basis of age under the Age Discrimination Act of 1975 or with respect to an otherwise qualified handicapped individual as provided in section 504” shall apply. See id ., §§ 677, 2606. These two block grants also set forth procedures by which com pliance with their nondiscrimination provisions may be secured, including the 60-day compliance period before resorting to remedies under Title VI, Section 504, and the Age Discrimination Act, “as may be applicable.” Applying the maxim expressio unius est exclusio alterius, it could be argued that because Congress specified in some block grants that the nondiscrimination laws would apply, its failure to do so in others should be viewed as an intentional exclusion. See 2A , C. Sands, Sutherland Statutory Construction § 47.23 (4th ed. 1973). This reading o f an implied exclusion deserves particular attention, be­ cause the maxim is considered to have special force if a statute provides for something in one section but omits it in another. See id. There are, however, several reasons that might explain why Congress failed to include nondiscrimination provisions in the Education and the Social Services Block Grants. First, as discussed in subsection C below, Congress may simply have decided that existing laws against discrimination should apply without change. It appears that there is some support for this explanation in the language of the nondiscrimination provisions originally proposed, both of which can be interpreted as assum ing that existing law would apply, but attempting to add to or change it in some manner. Furthermore, the nondiscrimination provisions in the other six block grants are not merely repetitive of existing law but have independ­ ent significance: (1) all six prohibit discrimination on the basis of sex, although Title IX applies only to education programs; (2) four also prohibit discrimination on the basis of religion; and (3) all require that the chief executive officer of a state be given 60 days to secure compliance before the Secretary either refers the matter to the Attorney General or exercises the powers granted by Title VI, Section 504, or the Age Discrimination Act, “as may be applicable,” or takes “such other action as may be provided by law.” Because Congress was providing for new substantive obligations and remedies regarding nondiscrimination in the other six block grants, it would have been logical for Congress to have recited all of the nondiscrimination provisions applicable to those block grants, perhaps to

103 avoid a future contention that only discrim ination on the basis of sex or religion had been prohibited. By failing to include sim ilar provisions in the Education and the Social Services Block G rants, however, Congress may simply have intended that only existing nondiscrimination provisions, with their regular enforcement mechanism s— which apply to all programs or activities receiving federal finan­ cial assistance— should apply.21 Second, there is also a reason why Congress might have believed it to be unnecessary to mention the nondiscrim ination statutes in the Education and the Social Services Block Grants, but necessary to mention them in the other six grants. The four cross-cutting statutes apply by their terms to programs or activities receiving “Federal financial assistance.” Both the Education and the Social Services Block Grants specify that they are providing “federal” or “finan­ cial” assistance. The Elementary and Secondary Education Block Grant states in the Declaration of Policy in C hapter I, § 552, “ [t]he Congress declares it to be the policy o f the United States to continue to provide finan cial assistance to State and local educational ag en cies. . . , ” and in the Statement of Purpose in Chapter II, § 561, “ [i]t is the further purpose and intent of Congress to finan cially a ssist state and local educational agencies . . . .” (Em phasis added.) The Social Services Block G rant begins its statement of purpose with the following language: “For the purposes of consolidating F ederal assistan ce to States . . . .” § 2001 (em­ phasis added). In contrast, the four block grants that contain explicit statements that “ [f]or the purpose of applying the prohibitions against discrimination” under the four cross-cutting statutes, program s funded by them “are considered to be program s or activities receiving Federal financial assistance,” do not otherwise specifically refer to federal financial assistance. It is possible therefore that Congress sim ply wished to m ake clear that, in addition to its prohibition of sexual and religious discrimination, those four block grants were “federal financial assistance” for purposes of the four cross-cutting statutes. Similarly, the other two block grants containing nondiscrim ination provisions have no explicit refer­ ence to the fact that they authorize “federal financial assistance.” Thus, the language o f these block grants suggests another reason why Congress might have differentiated between the Education and the Social Services Block Grants on the one hand and the six other block grants on the other. The expressio unius maxim is not to be regarded as conclusive, especially when other factors suggest a different result. See M orris v. G ressette, 432 U .S. 491, 506 n.22 (1977) (express preclusion of judicial review in one section is relevant, but not decisive, as to reviewability in other sections).22 H ere, in addition to the existence of other explanations for the differences that initially appear to call for application o f the maxim, there are other factors at play. The block grants are not merely separate sections of a comprehensive statute, but are

21 T h is is also consistent w ith the fact that th e existing Title X X Social Services B lock G rant makes n o specific reference to the n ondiscrim ination provisions. 22 See also, e.g ., Wachovia Bank & Trust C o . v National Student Mktg Corp , 6 5 0 F.2d 342, 3 5 4 -5 5 (D .C . Cir. 1980) ( “T h e an c ien t m axim ‘expressio unius est exclusio alterius' is a d angerous road m ap w ith w hich to explore legislative in te n t.”), cert, denied, 452 U.S 9 5 4 (1981), 2 A , S utherlan d , supra, § 47 25 (“T he m axim . . . requires great caution in its a p p licatio n , and in all c a s e s is applicable only under certain conditions.").

104 in reality separate statutes relating to different substantive areas, pieced together for purposes of budget reconciliation. This suggests that application of the maxim, which assumes that Congress considered all possibilities together, has less force than it m ight in addressing a narrower statute. Cf. U nited S tates v. Exxon Corp., 628 F.2d 70, 75 (D .C . Cir.) (per curiam ) (rejecting application of maxim because, in ter alia, two titles at issue differ in structure and direction), cert, denied, 446 U .S . 964 (1980). Particularly in light of the length of the Reconciliation Act, the speed with which it was enacted, and the pressing circumstances that surrounded its enactment, as discussed earlier, it is uncertain that the maxim should be given as much weight as it might normally have. The presumption against finding a repeal or amendment by implication also tends to dilute the force of the maxim. See U nited States v. Exxon C orp., 628 F.2d at 75 (declining to read combination of legislative history and expressio unius theories as proof of repeal or am endm ent by implication). In attempting to assess congressional intent, the expressio unius maxim may serve as a guide to that intent, but it is inconclusive. Other factors, including the reasons for the differences, the nature of the legislation, and the legislative history,23 must also be considered in the effort to discern congressional intent. When all the factors are considered, we cannot conclude that the absence of nondiscrimination provisions in the Education and the Social Services Block Grants represents a congressional determination that Title VI, Title IX, Section 504, and the Age Discrimination Act not apply. Instead, Congress may merely have determined that existing law against discrimination should apply to these two block grants. Moreover, to the extent the expressio unius maxim might be said to provide some support for a finding that Congress intended nonap­

23 It is not just the statute that is silent on inclusion or exclusion of the provisions C om m ittee h earings, floor debates, and the H ouse. S enate, and conference reports, w hich often discuss in som e detail the d iffering versions and congressional intent, are virtually silent on this significant issue In o u r review o f hundreds o f p ag es of testim ony, debate, and rep o rts, we found only oblique references to nondiscrim ination under the tw o relevent block grants Dr. James P. S cam m an. S uperintendent o f Schools in South B end, Indiana, said: To put it bluntly, if you are going to m ake a local decision m odel w ork, you are going to have to rescind 9 4 , 142, 50 4 , and at least unem ploym ent com pensation not to kick in until the fall term begins w hen people a re n 't assured of a jo b in the spnng. Hearings Before the Task Force on Human Resources and Block Grants c f the Committee on the Budget. H ouse o f R epresentatives, 97th C o n g ., 1st Sess , Part I, 232 (1981). A nother com m ent cam e from R epresentative B iaggi in floor debate, as he explained his opposition to block grants in general, apparently even those specifically co ntaining nondiscrim ination provisions: Let m e illustrate a genuine fear that I have about these block grants. A ge discrim ination is an insidious problem in this N atton and one of the areas where it is practiced the m ost are in federally funded p rogram s. W hen the C ivil Rights Com m ission identified 10 m ajor Federal program s w here age discrim ination w as ram pant. C ongress responded with the enactm ent o f the age discn m in atio n am endm ents. W hat recourse will we have if age discnm ination is practiced in the adm inistration of these grants on the State level? 127 C ong. Rec H 3 9 1 1 (daily ed . June 26, 1981) N either the com m ents o f a com m ittee w itness nor the co n cern s of a single R epresentative am ount to an expression of congressional intent to support the inference to be draw n from application of the expressio um us m axim T his is especially true here w here one reference (“9 4 , 142,504*’) is, at the least, obscure, and w here the other represents concern apparently unrelated to specific incorporation o f the nondiscrim ination provisions There w ere, o f course, som e other references in the legislative history to the nondiscrim ination provisions originally proposed by the A dm inistration T hese references were m inim al, however, and we do not believe that they support the theory that the laws prohibiting discrim ination were m eant to be inapplicable. See d iscu ssio n in subsection C , infra.

105 plicability, we cannot say that it is either “clear and manifest” or that it is the affirmative expression of intent required for finding a “repeal” or “amendment” by im plication.

C . A pp a ren t D eletio n c f the N ondiscrim ination P rovisions

There is an additional factor to consider in assessing the absence of non­ discrim ination provisions in these two block grants: Congress’ apparent deletion of nondiscrim ination provisions from the block grants as originally proposed by the Adm inistration. Based on o u r analysis of the legislative history of the block grants, however, we are unable to conclude that Congress ever intentionally “deleted” the nondiscrim ination provisions from the Administration’s proposals so as to m ake them inapplicable.

(1) Education Block Grant

T he nondiscrim ination provision of the Administration’s proposed Education B lock G rant provided: Sec. 307(a). W henever the Secretary determines that there has been a failure to comply with title VI of the Civil Rights Act of 1974, the Age Discrimination Act of 1975, section 504 of the Rehabilitation Act of 1973, or title IX of the Education Amend­ ments of 1972 in any program or activity receiving Federal financial assistance under this Act, he shall notify the chief executive officer of the State and afford him an opportunity to secure compliance. If within a reasonable period of time, not to exceed sixty days, the chief executive officer does not secure com pliance, the Secretary shall take such action as may be provided by law. The tim e afforded the chief executive officer under this subsection shall not reduce the time otherwise available to the Secretary to secure compliance. (b) W hen a matter is referred to the Attorney General pursuant to subsection (a) of this section, or whenever he has reason to believe that there has occurred a pattern or practice in violation of the civil rights provisions referred to in subsection (a) in any program or activity receiving Federal financial assistance under this A ct, the Attorney G eneral may bring a civil action in any appropriate United States district court for such relief as may be appropriate including injunctive relief. Proposed Elem entary and Secondary Education Consolidation Act of 1981, S. 1103 § 307a (127 C ong. Rec. S4332) (daily ed. May 4, 1981). The provision thus appears merely to have provided a method of enforcing the laws; it appears to have assum ed their applicability to the Block Grant. The summary provided by Senator Hatch when he introduced the bill stated: “Basic nondiscrimination provisions are p re se rv e d without change from current law. However, in case of

106 violations, as determined by the Secretary, the Governor has an additional 60 days to secure compliance before further action by the Department." Id ., S4336 (emphasis added). Thus, the omission of this provision, absent explanation, is equally consistent either with the possibility that Congress intended the non­ discrimination provisions not to apply or that it assumed they did, based on the indication that basic law was being “preserved without change,” and merely decided that the regular enforcement procedures would apply. Furthermore, because the Education Block Grant eventually enacted was not the one proposed by the Administration, it would be an overstatement to refer to the lack of such a provision in that bill as the result of a “deletion.” The Education Block Grant proposed by the Administration was more sweeping than the bill eventually enacted. There was extensive resistance to including some of the programs the Administration proposed to include and the final product was termed a more modest effort. See, e.g ., 127 Cong. Rec. S6821 (daily ed. June 24, 1981) (rem arks of Senator Hatch, Chairman of Comm, on Labor and Human Resources) (“O ur proposals are more modest than President Reagan’s. Our block grants do not compel the Nation to arrive at the new federalism on October 1. But they most definitely set us along President Reagan’s road.”). In the H ouse, Representative Ashbrook, the ranking minority m ember of the Education and Labor Com m ittee, tried to make clear that “Gramm-Latta II,” the am endm ent to the Committee reconciliation package approved by the House, was not authored by the Administration: And let me put to rest— at least for our committee— all this loose talk about the proposals in the Latta amendment having been written by OMB or the W hite House. That just is not true. We did cooperate with them and accommodate their concerns where possible. But the substance of our major proposals, and the figures we use, were fashioned by our staff acting on our instruc­ tions. In most areas there are very great differences from adm in­ istration proposals. This is particularly true with respect to educa­ tion program consolidation, child nutrition, impact aid, and the social services block grant. Id., H 3526-27 (daily ed. June 25, 1981). See also id., S6821 (daily ed. June 24, 1981) (remarks of Sen. Hatch) (“Some have suggested that the President has suffered a political defeat because we in the Senate have turned from his original block grant proposals. They are wrong, and they miss the point. The essential question is not whether we support these proposals, but whether we support the President’s ends. Obviously, we d o .”). The legislative history of the Education Block Grant is at best ambiguous with respect to w hether Congress “deleted” references to the nondiscrimination provi­ sions or m erely enacted a bill that, without explanation, contained none. The Education Block Grant, which received extensive attention on the House and Senate floors, was explained and debated in detail, without reference to the possibility that Congress had made nondiscrimination provisions inapplicable.

107 Given the tone of the discussion— an attempt to assuage concerns that not enough federal control rem ained in the block grants— it is difficult to infer a clear intent to make the federal nondiscrimination provisions inapplicable. We are reluctant to attach much significance to congressional omission of any reference to the nondiscrim ination provisions w hen they would normally have been applicable without any such reference, especially in the absence of any reference to such omission.

(2) Social Services Block G rant

Because the Social Services Block G rant received less attention in floor debate, it is even m ore difficult to determine whether Congress could be said intentionally to have deleted the nondiscrimination provisions. It is clear that the Adm inistration’s proposed block grant, which contained a nondiscrimination provision, was not finally enacted by Congress. However, even the proposed House Social Services Block G rant contained a nondiscrimination provision, including enforcem ent procedures differing from those provided in the four nondiscrimination statutes. T he Senate version and the ultimate conference version of the Social Services Block G rant, however, made no reference to nondiscrim ination. Although the absence of a provision in one of several versions might be said to suggest an intentional deletion, this does not seem to have been the case. First, the section-by-section analysis of the Administration’s proposed Social Services Block Grant, inserted into the Record by its sponsor, Representa­ tive A shbrook, is instructive:

Section 10 of the d raft bill, modeled on a section of [the] Housing and Com m unity Developm ent Act of 1974, prohibits discrim ination on the ground of race, color, national origin, or sex in any program o f activity funded under the Act, and also express­ ly recognizes the application of section 504 of the Rehabilitation A ct of 1973, which prohibits discrimination against qualified handicapped persons, and the anti-discrimination provisions of the Age Discrimination Act of 1975. W henever the Secretary determ ines that there has been a failure to comply with these non­ discrim ination provisions, the Secretary must notify the Governor o f the State. The Governor is given up to 60 days to secure com pliance. If the Governor does not secure timely compliance, the Secretary may refer the matter to the Attorney General and recom m end the commencement of a civil action to secure com ­ pliance. Alternatively, the Attorney General may institute pro­ ceedings under current statutes, such as title VI o f the Civil Rights Act c f 1964, that now apply to discrimination.

127 Cong. Rec. E2194 (daily ed. M ay 6, 1981) (emphasis added). As understood by its sponsor, the nondiscrim ination provision did not “make” Section 504 and the A ge D iscrim in atio n Act a p p licab le, but rather “recognized” their a p ­

108 plicability. The provision added sex discrimination as a general prohibition. Finally, Representative Ashbrook appeared to recognize that “current statutes, such as title V I,” provided an alternative method of proceeding. Id. Thus, it is conceivable that “deletion” of the provision was merely intended to leave current nondiscrimination law as the only method of proceeding. It is unclear w hether Congress even thought in terms of “deletion.” As explained in the sum m ary of the reconciliation conference: “the House receded from its Social Services block grant and conferees agreed to a Title XX block grant and a com m unity services block grant. Child welfare services and Foster Care and Adoption Assistance were retained as categorical program s.” 127 Cong. Rec. H5759 (daily ed. July 31, 1981). The conference report referred to the rejected House Social Services Block Grant as a “new freestanding” block grant repealing Title XX social services and training, the Child Abuse Preven­ tion, Adoption Reform , and Runaway and Homeless Youth Acts, and seven titles of the Com m unity Services Act. See H .R. Conf. Rep. No. 208, 97th C ong., 1st Sess. 989 (1981). The conference agreement, however, was to a more modest block grant, am ending Title XX to form a new block grant, which “generally follows the Senate am endm ent,” although not incorporating child welfare, foster care, and adoption assistance programs. See id. at 991. In the conference report’s rather detailed com parisons of the House and Senate versions, there is no reference to the absence of a nondiscrimination provision. Nor was there floor debate over inclusion or deletion of such a provision. Thus, like the Education Block G rant, it is unclear whether Congress intentionally deleted the non­ discrimination provision or merely enacted a different block grant that contained no such provision. Because of the enactment of a substantially different block grant from the one that contained a nondiscrimination provision, and in light of the absence of any reference to a “deletion” of the nondiscrimination provisions, and the presence of another plausible interpretation of any “deletion,” it is at best uncertain whether Congress intentionally “deleted” the nondiscrimination provi­ sions to make them inapplicable. It is as appropriate to conclude merely that Congress enacted a block grant silent as to their applicability. Therefore, the absence of the provisions from the final version, under these circum stances, provides no more than highly equivocal support for finding an implied “repeal” or “am endm ent,” when much clearer support is required. See Allen v. McCurry, 449 U .S. 90, 99 (1980).

(3) Conclusion Regarding Intentional Deletion o f Nondiscrimination Provisions

We conclude, therefore, that Congress’ intention to make the nondiscrim ina­ tion statutes inapplicable is at best ambiguous insofar as the finding of such an intention relies on the apparent “deletion” of nondiscrimination provisions from prior versions of these two block grants. There is no indication that Congress gave any thought to such a “deletion,” and the absence of nondiscrimination provisions is as consistent with a congressional determination to leave existing

109 law intact as it is with an intention to exempt the block grants from the four cross­ cutting statutes.

D . Conflict Between the Block Grants and the Nondiscrimination Statutes

Because there is no clear indication of congressional intent to make the nondiscrim ination statutes inapplicable to program s or activities funded by the Education and the Social Services Block G rants, they should be considered to be inapplicable only if there is an irreconcilable conflict between the block grants and the nondiscrim ination statutes. Your m emorandum suggests an important ground upon which the block grants and the nondiscrimination statutes may be in conflict: C ongress’ intent in enacting block grants to free the states of “federal encum brances and regulations other than those specifically imposed by the A ct.” To apply the nondiscrimination provisions, it is suggested, would be directly contrary to the intent. We have found no meaningful evidence, however, that the nondiscrimination statutes are the kinds of federal “interference” with which Congress or the Adm inistration was concerned. To reduce bureaucratic overhead and permit the states to set their own program priorities, the Education Block Grant expressed the intent in C hapter 1 that th e design and implementation c f the programs authorized under that Chapter be “mainly that of local educational agencies, school superintendents and principals, and classroom teachers and supporting personnel, because they have th e most direct contact with students and are most directly responsible to parents.” § 561(b) (emphasis added). In Chapter 2, C ongress directed that the Secretary issue no regulations in most matters “relat­ ing to the details o f planning, developing, implementing, and evaluating pro­ gram s and projects by state and local educational agencies.” § 591 (b) (emphasis added). The Social Services B lock Grant is intended to “increase State flex­ ibility” in furnishing social services directed at five goals. § 2352 (§ 2001). C ongress’ focus therefore appears to have been on reducing “those detailed requirem ents and instructions on how to conduct program s,” see 127 Cong. Rec. H 5796 (daily ed. July 31, 1981) (remarks of Rep. Ashbrook) (emphasis added), which force the states to spend great amounts of time and energy on federally im posed program details. As Senator Hatch, a strong proponent of block grants, said, the objection to categorical programs is the involvement of the federal bureaucracy in their administration. See note 16, supra. Block grants are intend­ ed to effect a significant reduction in this involvement. T he nondiscrim ination statutes clearly im pose regulatory burdens on fund recipients and decrease the “flexibility” of those recipients to the extent they would choose to use federal funds in a m anner otherwise prohibited by the cross­ cutting statutes; that is, by expending the money in ways that discriminate on the basis o f race, sex, age, or handicap. We believe, however, that this apparent conflict does not actually make the cross-cutting statutes and the two block grants irreconcilable, particularly when every attem pt must be made to read the two sets of statutes in a way that permits each to be effective. See, e.g., Morton v.

110 Mancari, 417 U .S. at 551. In applying NHPA and NEPA to a block grant, the Fourth Circuit stated, “ in the absence of unmistakable language to the contrary, we should hesitate to read the congressional solution to one problem— protection of local police autonomy— so broadly as unnecessarily to undercut solutions adopted by Congress to preserve and protect other societal values, such as the natural and cultural environm ent. It is not to be assumed lightly that Congress intended to cancel out two highly important statutes without a word to that effect.” Ely v. Velde, 451 F.2d 1130, 1136 (4th Cir. 1971).24 The same analysis can be applied to this case. The congressional solution to the problem of excess federal involvement in matters of program choice and administration need not be read so broadly as to encompass in the concept of “program administration” the freedom to' discrim inate on otherwise prohibited grounds or to operate programs free from existing regulations regarding the nondiscrimination statutes. We believe, instead, that it is more likely that the lessened federal involvement anticipated by Congress was to be achieved by allowing state and local authorities to choose how best to use their allocations in programs or activities best suited to the needs of their citizens.25 There are several indications that this interpretation is consistent with con­ gressional intent. Clearly, the Administration believed that its block grants were capable of coexisting with nondiscrimination provisions, because the Admin­ istration’s own proposals assumed applicability of the nondiscrimination stat­ utes. There is no indication in the legislative history that Congress itself initiated any effort to eliminate or cut back on the operation o f the nondiscrimination statutes with respect to block grants. In fact, the two block grants enacted are described in the legislative debates as “more modest” in terms of centralizing, consolidating, and decreasing federal involvement than those proposed by the Administration. In the numerous attempts to explain the advantages of block grants as m inim izing federal interference and maximizing state flexibility, the nondiscrimination provisions were simply not at issue. Moreover, all the block grants share these goals of increased efficiency, decreased regulation, and increased local autonomy, including the six containing nondiscrimination provi­ sions. It thus does not appear that application of the nondiscrimination provisions is inherently inconsistent with the block grant concept. It is difficult to conclude,

24 Ely v Velde relied on the fact that the S afe S treets Act had as a dom inant concern not m erely th e “ sim ple desire to give the states m ore latitude in the spending o f federal m oney," but also “to guard against any tendency tow ards federalization o f local police an d law enforcem ent agencies " A pplication o f NHPA and NEPA d id not th reaten federalization o f local police effo rts See 451 F 2 d at 1136 A lthough the question before the court in Ely is not identical to the question b efo re u s, we think it is sim ilar to the extent that the block grants not on ly reflect co n cern about w ho decides how to spend federal money but also reflect concern that the federal governm ent not be involved in the details o f program administration, w hich are m ore appropriately left to local decisionm akers. 25 This appears to be consistent w ith the P resident’s understanding o f the value of block grants. See Interview w ith the President, 17 W eekly C o m p Pres D oc. 1326-27 (D ec 7 , 1981)* Now, having been a G overnor, I can tell you w hat th e categorical grants do. They com e to you with Federal money, but w ith enorm ous am ounts of redtape and regulation prescribing exactly what the priorities are and how this money must be spent W ell, no one in W ashington can set rules o f that kind that will fit N ew York C ity and som e sm all tow n in the urban area or a city in the South that d o esn ’t have the sam e problem s or the W est S o , it m akes these program s needlessly extravagant. (E m phasis added )

in therefore, that Congress viewed the nondiscrimination statutes as inconsistent with its purpose in enacting block grants. The policy disfavoring “repeals” or “am endm ents” by implication is par­ ticularly applicable when the allegedly repealed provision is a longstanding, important com ponent of a governm ent program . See Morton v. Mancari, 417 U .S. 535, 550 (1974). The cross-cutting statutes clearly represent important federal nondiscrim ination policies of broad applicability. It is difficult, if not im possible, to believe that Congress would choose to alter such fundamental policies without any discussion, and in the context of debates over the block grants, which focused on different concerns unrelated to the policies embodied in the nondiscrim ination laws. Because the policies inherent in the nondiscrim ina­ tion statutes and the block grants may be reconciled without apparent serious dam age to either, as indicated by the fact that other block grants and the Adm inistration’s own proposals specifically adopted nondiscrimination provi­ sions— in fact, added to the categories of prohibited discrimination— the non­ discrim ination statutes should be considered to apply to the block grants. See, e.g ., Morton v. Mancari, 417 U .S. 535; Ely v. Velde, 451 F.2d 1130.26

VI. Conclusion

The circum stances surrounding enactm ent of the two block grants, as well as the purposes for which they were enacted, do not reveal a congressional intention ’.o make the nondiscrim ination statutes inapplicable to the Education and the Social Services Block Grants. The nondiscrim ination statutes were intended to be statem ents of national policy applicable to all programs or activities receiving federal financial assistance, freeing Congress from the need to give subsequent consideration to their applicability on a program-by-program basis. Block grant funding falls w ithin the literal term s of those statutes, and the nondiscrimination statutes should therefore be applied to these two block grants unless Congress actually intended otherwise, or unless the block grants and the nondiscrimination statutes cannot be reconciled so as to give effect to all. That Congress failed to include nondiscrimination provisions in the two block grants does not support a finding of an intention to m ake Title VI, Title IX, Section 504, and the Age Discrim ination Act inapplicable: The nondiscrimination statutes do not require specific reference in funding legislation; Congress may have included non­ discrim ination provisions in other block grants to effect changes in existing discrim ination law; and Congress’ failure to include nondiscrimination provi­ sions in the two block grants can be interpreted as an expression of intent to have

*ISWe believe that this conclusion is not in consistent w ith Pennhurst State School & Hospital v Halderman, 451 U S . I (1981). in w hich the C o u rt stated that “ C ongress m ust express clearly its intent to im pose conditions on the grant o f federal funds so that the States can know ingly decide w h eth e r o r not to accept those fu n d s.” Id. at 24 In the four cro ss-cu ttin g nondiscrim ination statutes them selves. C ongress had clearly expressed its intent that they apply generally to all p rogram s o r activities rece iv in g federal financial assistance. See 1 10 C ong. Rec. 7063 (1964) (rem arks o f S en. fo sto re ) (T itle VI fixes th e conditions under w hich federal m oney is d istrib u ted ’ “ N o one is required to accept F ederal assistance or F ederal funds If anyone does so voluntarily, he m ust tak e it on the con d itio n s on w hich it is offered "). /

112 existing law apply. Finally, the block grants and the nondiscrimination statutes are not so irreconcilable that both cannot be given effect. In light of the fundamental expression of congressional intent underlying the nondiscrimination statutes, it should be presumed that Congress would have debated or made specific its intent to change their applicability. As long as it did not do so, and in light of the several possible reasons for its failure to include independent nondiscrimination provisions, we conclude that the nondiscrim ina­ tion provisions of Title VI, Title IX, Section 504, and the Age Discrimination Act apply to the Education and the Social Services Block Grants.

T h e o d o r e B. O l s o n Assistant Attorney General Office c f Legal Counsel