Applicability of Control of Paperwork Amendments of 1978 to

Certain Activities of the Civil Rights Division

Control of Paperwork Am endments of 1978, which impose restrictions on federal agencies’ collection of data from educational institutions, do not apply to collection of data 

by the Departm ent of Justice in connection with school desegregation litigation.

February 6, 1980

MEMORANDUM OPINION FOR THE ASSISTANT ATTORNEY 

GENERAL, CIVIL RIGHTS DIVISION

This responds to your request for an opinion on the applicability of 

the Control of Paperwork Amendments of 1978, 20 U.S.C. § 1221-3 

(Amendments), to your Division’s collection of information from educational institutions in connection with the litigation of school desegregation cases. More specifically, you ask whether your division’s litigation of school desegregation cases is a “federal education program” 

under the Amendments. You identified the following three categories 

of information-collecting activities conducted by your Division in connection with such cases:

(1) Formal discovery requests in active school desegregation 

cases;

(2) Collection of information from defendants in inactive school 

desegregation cases to determine whether the cases should 

be dismissed; and

(3) Collection of information from educational institutions for 

the purpose of determining whether litigation should be 

initiated.

Because your Division conducts all of the above activities in connection with your litigating responsibilities and compliance with the 

Amendments’ restrictions would interfere with the enforcement of federal antidiscrimination statutes, we conclude that the Amendments do 

not apply to such activities. For that reason, any regulations promulgated to implement the Amendments similarly would not apply to those 

activities.

The Control of Paperwork Amendments of 1978 were enacted to 

coordinate the collection of data from educational institutions by federal agencies “[i]n order to eliminate excessive detail and unnecessary

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and redundant information requests and to achieve the collection of 

information in the most efficient and effective possible manner. . .

20 U.S.C. § 1221-3(a)(1)(A). Under the statute, the Secretary of Education 1 must approve requests by federal agencies for data and information directed to educational institutions. Each agency is required to 

submit to the Secretary a plan for each collection of information indicating how the information will be used, the methods of analysis that 

will be applied to such data, a timetable for the dissemination of the 

collected data and an estimate of the costs and man-hours that will be 

incurred by each educational institution in completing the request and 

by the federal agency in collecting, processing, and analyzing the information. 20 U.S.C. § 1221—3(b)(1). The Secretary is required to ensure 

that each request has been approved and publicly announced by the 

15th of February preceding the beginning of a new school year, unless 

there is an urgent need for the information or very unusual circumstances. 20 U.S.C. § 1221-3(b)(2)(A). Prior to approval, each educational agency subject to a request is afforded a 30-day period to comment to the Secretary on the information request. 20 U.S.C. § 1221 — 

3(b)(3).

The Amendments set forth two conditions for its applicability to 

information requests by federal agencies:

(1) The respondents must be primarily educational agencies or 

institutions; and

(2) The purpose of a federal agency’s activities must be to 

obtain information needed for the management of, or the 

formulation of,.policy related to federal education programs 

or research or evaluation studies related to the implementation of federal education programs. 20 U.S.C. § 1221 — 

3(a)(1)(A).

Because your information-collection activities are directed at educational institutions, the first condition is satisfied and the applicability of 

the Amendments depends, therefore, upon whether your activities meet 

the second condition. For two reasons, we conclude that they do not. 

First, the information you collect is needed to decide whether to 

initiate, maintain, or discontinue litigation, not to manage or formulate 

policy or to conduct research or evaluation studies. Moreover, even if a 

decision to initiate or discontinue litigation could be viewed as formulating policy, we believe that your litigating activities are not “federal 

education programs” for the purpose of the Amendments. It is true that 

a construction of the Amendments must be guided by the Conference 

Report’s direction that they are “to be interpreted broadly so as to

1 The Act originally required the Secretary of Health, Education and W elfare to approve such 

requests. However, under the D epartm ent o f Education Organization Act, Pub. L. No. 96-88, 

§ 301(a)(2)(D), 93 Stat. 677 (1979), this function was transferred to the Secretary of Education.

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include as many activities as possible.” H.R. Rep. No. 1753, 95th Cong., 

2d Sess., 313 (1978). But a construction that would include school 

desegregation litigation as a “federal education program” would strain 

the meaning of that term far beyond common understanding of what 

constitutes an education program. Nothing in the legislative history of 

the Amendments warrants such a construction. Moreover, the Amendments explicitly provide:

Nothing in this section [20 U.S.C. § 1221-3] shall be con- 

. strued to interfere with the enforcement of the provisions 

of the Civil Rights Act of 1964 or any other nondiscrimination provision of Federal law.

20 U.S.C. § 1221—3(b)(6). In our view, this provision 2 militates against 

regarding your litigating activities as education programs. If the 

Amendments were construed to cover such activities, your Division 

would have to comply with their restrictions on information requests 

each time you requested information from each school defendant or 

target of investigation. Compliance with the Amendments’ comment 

period and public announcement requirement when litigating a case or 

deciding to institute or discontinue litigation would undoubtedly substantially interfere with the expeditious enforcement of federal nondiscrimination laws.

For these reasons we conclude that the term “federal education 

program” is not to be construed to encompass the information collection activities involved here. Accordingly, the definition of “federal 

education program” in the interim procedures 3 promulgated by the 

Department of Health, Education, and Welfare under the Act is not to 

be construed to encompass such activities.

L e o n U l m a n

Deputy Assistant Attorney General

Office o f Legal Counsel

2 T he legislative history o f the Am endm ents contains no discussion o f this provision, which was 

included in both the House and Senate bills. H.R. Rep. No. 1137, 95th C ong., 2d Sess. 134-38, 177

(1978); S. Rep. No. 856, 95th C ong., 2d Sess. 5, 112-16, 158-59 (1978); H. Conf. Rep. No. 1753, 95th 

Cong., 2d Sess. 313-15 (1978). T he provision appears to have its origin in the Education Amendments 

o f 1976, §406, 90 Stat. 2231, w hich restricted only the Education Division and the Office of Civil 

R ights in the D epartm ent o f Health, Education and W elfare in their collection o f information. The 

restrictions along with the proviso w ere added on the floor of the Senate, 122 Cong. Rec. 28017- 

28020 (1976), and survived the Conference. H. Conf. Rep. No. 1701, 94th C ong., 2d Sess. 242 (1976).

3 T he interim procedures define “ Federal Education Program ’* as “any Federal activity w ith a 

prim ary purpose of offering instruction, financing instruction, o r affecting an educational agency's or 

institution’s ability to offer instruction or provide access to education.” 44 Fed. Reg. 46535, 46538

(1979).

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