December 6, 1978

78-63 MEMORANDUM OPINION FOR THE

SOLICITOR OF LABOR

Comprehensive Employment and Training Act

(42 U.S.C. §§ 6701-6710)—Wider Opportunities for

Women (WOW)— Program Funding in the

Metropolitan Washington Area

This responds to your request for our opinion regarding the legality of 

funding the Wider Opportunities for Women (WOW) program in the metropolitan Washington area under Title 111 of the Comprehensive Employment and 

Training Act Amendments of 1978 (CETA), Pub. L. No. 95-524, 92 Stat. 

1909. Your request also mentions several other programs directed toward 

women or members of minority groups and raises the general issue of the 

propriety of funding affirmative action programs such as those under CETA. 

Specifically, you ask that we address two questions: (1) whether § 301(a) of 

CETA, 29 U.S.C. § 871(a), authorizes the Secretary of Labor to fund programs 

designed to assist eligible, disadvantaged women and minorities in the labor 

market; and (2) whether funding of the WOW program providing training for 

women in skilled crafts in which they have been historically underrepresented 

is an appropriate exercise of the Secretary’s authority under § 301(a).

We have considered these questions in light of the recent decision in Regents

of the University o f California v. Bakke, 438 U.S. 265 (1978). Certain general 

principles emerge from that decision. We know that neither the Constitution 

nor Title VI of the Civil Rights Act of 1964, 42 U.S.C. § 2000d, et seq.,

requires “ color blindness” in federally funded programs. That is, race and 

ethnicity (and presumably sex) may be taken into consideration for some 

purposes. 438 U.S. at 284-286. Certain race-conscious programs may come 

into conflict with the Constitution and title VI even if they are intended to be 

remedial. Analysis of the legality of race or gender-conscious programs must, 

therefore, proceed on a case-by-case basis after a careful examination of 

relevant facts. Accordingly, we have not attempted to furnish advice regarding 

the legality of funding all the types of programs that might conceivably be 

directed toward women or members of minority groups. Instead, we have

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focused on the legality of funding the specific training program in the skilled 

crafts now proposed as part of the WOW program.

We conclude that in light of the statutory amendments adopted as part of the 

1978 CETA reauthorization legislation, Pub. L. No. 95-524, it is now clear that 

Congress has authorized the Secretary of Labor, under title III, to fund 

programs designed to assist women in overcoming particular disadvantages 

found to impede their entry into specific or general labor markets or occupations. By authorizing funding of programs designed to assist members of 

special target groups, Congress limited the participation in such programs to 

members of such disadvantaged groups, notwithstanding the language of the 

title VI analog included as § 132(a) of the Act, 29 U.S.C. § 834. So long as 

they are supported by adequate findings, we believe that programs similar to 

WOW directed toward disadvantaged groups and carefully designed to remedy 

the effects on past or ongoing discrimination will be sustained against legal 

challenge. In light of the Court’s reasoning in Bakke, however, it is evident that 

programs drawn along racially or sexually exclusive lines are particularly prone 

to raise constitutional questions. We therefore advise, in light of the uncertainty 

prevailing in this area of the law and the risk of litigation presented by adoption 

of a sexually exclusive program, that you propose revising the administration of 

the WOW program. Recruitment efforts could continue to be directed toward 

women, and women would be presumed to meet applicable eligibility 

requirements; however, where male applicants can demonstrate comparable 

disadvantages, they should also be considered eligible for participation.

I.

The proposed project, the “ Multi-Craft Program for W omen,” would 

provide counseling and training to 75 unemployed women residents of the 

District of Columbia in the field of electronics, as skilled auto mechanics, or as 

electrician or carpenter apprentices. Eligibility for participation in the program 

is limited to w om en.1 While most trainees are also members of minority groups, 

the program is not racially exclusive in character. Training, both in the 

classroom and through field placement, would last from 7 to 14 months and 

would be provided by both industry trainers and program staff specialists.2 

Personal, professional, and group counseling would focus on possible problems 

at home and on the job in an attempt to prevent such problems from adversely 

affecting job performance.

We understand that for entry-level positions as auto mechanics and carpenter 

apprentices the industry does not require formal training as a prerequisite. With 

regard to entry-level jobs in electronics, however, employers prefer a technical 

school or high school education and they require 14 months of preparatory

'A pplicants are required to achieve an acceptable score on a mechanical aptitude test and to 

demonstrate good mathematical com putation skills. They must also be highly motivated and 

dem onstrate some measure o f self-confidence.

2The curriculum would include basic m echanics, basic electricity, beginning electronics, 

m athem atics, com m unications, and work preparation.

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training. We also understand that a portion of the basic program curriculum is 

comparable to high school instruction in such fields as mechanics and 

mathematics, which women may have been discouraged from pursuing, and it 

includes practical training in identification of tools similar to that traditionally 

provided to men in their home environment or in high school shop classes.

II.

Funding of the WOW counseling and training program is proposed under 

Title III of CETA. Although the original version of the Act did not include a 

specific reference to women as one of the groups to be assisted,3 the Secretary’s 

authority to direct funds toward this particular target group was outlined by the 

1978 CETA reauthorization which amended § 301(a) to read as follows:

(a) The Secretary shall use funds available under this title to provide 

services authorized under all titles of this Act and for employment and training programs that—

(1) meet the employment-related needs of persons who face particular disadvantages in specific and general labor markets or 

occupations including offenders, persons of limited English 

language proficiency, handicapped individuals, women, single 

parents, displaced homemakers, youth, older workers, individuals who lack educational credentials, public assistance recipients, 

and other persons whom the Secretary determines require special 

assistance. [Emphasis added.]

The more difficult question is whether in order more effectively to aid women 

as a target group, the Secretary may fund programs that are sexually exclusive 

in character. Neither the language nor the legislative history of CETA gives a 

clear indication how Congress intended that programs of this sort be funded, in 

contrast, for example, to those that are for practical reasons limited to the 

handicapped or to persons with limited English language proficiency. The 

limited congressional discussion in connection with the floor amendment that 

led to the inclusion of the reference to women in the list of disadvantaged 

groups now found in § 301(a) focused primarily on the low pay and high 

unemployment rate of women in the labor force and the need to provide women 

with basic resources to overcome these disadvantages.4 In contrast to other 

legislation that expressly authorized Agencies to take affirmative action

3The earlier version of this provision provided in pertinent part:

The Secretary shall use funds available under this title to provide additional m anpower 

services as authorized under Titles I and II to segments of the population that are in 

particular need of such services, including youth, offenders, persons of limited 

English-speaking ability, older workers, and other persons which the Secretary determines have particular disadvantages in the labor market. [Act of December 28, 1973, 87 

Stat. 857, 891.]

4124 Cong. Rec. H. 10474 (Sept. 22, 1978) (Representative M cGuire). See also, id., H. 12444 

(Oct. 11, 1978) (Conference Report) (stating without elaboration that women are to be included in 

the list of those facing disadvantages in the labor market).

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favoring members of certain disadvantaged racial or ethnic groups to the 

exclusion of other persons,5 there is no explicit statement that sexually 

exclusive programs were thought necessary here.6

Nevertheless, the apparent purpose of § 301(a) is to provide special assistance 

to particular groups. In accord with that purpose, the Secretary may fund 

programs designed for assistance to one or more of these special target groups, 

and limit the admittance to those for whom the programs were designed. 

Congress left it to the discretion of the Secretary to determine how best to 

provide services to the special target groups. The Secretary’s exercise of this 

discretion in circumstances such as these will not ordinarily be disturbed as 

long as it is consistent with the governing statute and does not violate 

constitutional requirements. See, e.g., FTC v. Sperry & Hutchinson Co., 405 

U.S. 233 (1974); FCC v. Schriber, 381 U.S. 279, 289-294 (1965).

III.

The Secretary’s authority is limited, however, by § 132(a) of the Act, 29 

U.S.C. § 834. It is a provision modeled on Title VI of the 1964 Civil Rights 

Act7 but expanded to bar additional forms of discrimination:

No person in the United States shall on the ground of race, color, 

religion, sex, national origin, age, handicap, or political affiliation or 

belief be excluded from participation in, be denied the benefits of, be 

subjected to discrimination under, or be denied employment in the 

administration of or in connection with any program or activity 

funded in whole or in part with funds made available under this Act.

The intent of Congress in including this provision as part of CETA must be 

discerned not simply from the words of the provision but also from its relation 

to § 301. In title III Congress undertook to aid specified target groups, 

including women, persons with limited English language proficiency (a 

characteristic likely to correlate with national origin), older workers, and 

handicapped persons. In light of that intent, we do not think that Congress 

intended § 132(a) to serve as a statutory directive mandating at the same time 

the provision of such specially designed remedial opportunities on a uniform 

basis to all comers, male and female, persons who for whatever reason wish to 

enhance their proficiency in English grammar and related skills, the young and

’Com pare the minority set-aside provision of § 103(f)(2) of the Public W orks Employment Act 

of 1977, 42 U .S .C . § 6705(f)(2) and its legislative history as discussed, e.g., in Fulliiove v. Kreps,

584 F. (2d) 600 (2d Cir. 1978).

6See H. Rept. No. 1124, 95th C ong., 2d sess. 15 (1978); S. Rept. No. 891, 95th C ong., 2d sess. 

3, 7 (1978); 124 Cong. Rec. S. 13960 (Aug. 22, 1978) (1978 version); H. Rept. No. 659, 93d 

C ong., 1st sess. 14, 24 (1973); H. Rept. No. 737, 93d C ong., 1st sess. 62 (1973); 119 Cong. Rec. 

25702, 38409, 38417, 38419, 38422 (1973) (1973 version).

7The original provision, § 712 o f the 1973 Com prehensive Employment and Training Act, 87 

Stat. 857, read as follows;

No person in the United States shall on the ground of race, color, national origin, or sex 

be excluded from participation in, be denied the benefits of, or be subject to 

discrim ination under any program or activity funded in whole or in part with funds 

available under this Act.

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the old, persons whether or not handicapped. Because § 132(a) is part of a 

statutory scheme which clearly contemplates that benefits will be directed to 

certain target groups, it may well be appropriate to give it different application 

when applied to remedial programs than would be the case where, as in Bakke,

the Court was asked to interpret the significance of similar language standing 

alone. Insofar as the Court’s interpretation of title VI turned in the end on 

constitutional analysis,8 it is nevertheless clearly pertinent here. Even in the 

absence of a statutory bar to the proposed award of funds, the constitutionality 

of such Federal action remains to be considered.

IV.

It now seems relatively certain that the Supreme Court has adopted an 

intermediate Equal-Protection analysis with regard to gender-based classifications, inquiring whether the classification serves important governmental 

objectives and is substantially related to the achievement of those objectives. 

See, Califano v. Webster, 430 U.S. 313, 316-17 (1977); Craig v. Boren, 429 

U.S. 190, 197 (1976). See plso. Regents o f the University of California v. 

Bakke, 438 U.S. 265, 302, 303 (Powell, J.). While the application of this 

standard has not yet been fully explored in the context of affirmative action 

programs, certain basic points are clear.

It is first evident that achievement of a work force composed of a specified 

percentage of women merely because of their sex is not an acceptable 

governmental goal. Bakke, at 307 (Powell, J.). Neither will such justifications 

based on administrative convenience suffice to sustain a gender-based classification. Califano v. Goldfarb, 430 J.S. 199, 209-210 (1977). On the other 

hand, the governmental interest in “ ameliorating, or eliminating where feasible, 

the disabling effects of identified discrimination” is “ legitimate” and “ substantial.” Bakke, ibid. (Powell, J.).9

“The majority of the Court in Bakke adopted the view that, in the context o f a remedial program , 

title VI prohibits only those racial classifications as are barred by the constitutional guarantee of 

equal protection. 438 U.S. 265, 286, 287 (Powell, J.); 438 U .S. 265, 327, 328 (Brennan, W hite, 

Marshall, and Blackm un, JJ.)

’ It is, however, uncertain under the C ourt’s earlier decisions just how specific such a finding of 

discrimination must be. A showing of lower prevailing wage rates justified the adjustment in 

number of low wage years excluded in calculating Social Security benefits that was upheld in 

Califano v. Webster. There the Court expressly stated that “ [r]eduction o f the disparity in 

economic conditions between men and women caused by the long history of discrimination against 

women has been recognized as such an important governmental objective.” Califano v. Webster,

430 U.S. 313, 317 (1977). Evidence of general econom ic disparity reflected in wage and labor 

market statistics, a disparity that would in some measure be remedied by provision of preferential 

property tax exem ptions, sufficed in Kahn v. Shevin, 416 U .S. 351 (1974). See also, Lewis v. 

Cowen, 443 F. Supp. 544 (E.D . Pa. 1977) (three-judge court) (provision of Railroad Retirement 

Act authorizing retirement with a full pension by women at age 60 but only reduced benefits for 

men between the ages of 60 and 65 upheld, inter alia, as reducing economic disparity resulting 

from the payment of lower wages to women). A gender-based classification was also sustained in 

Schlesinger v. Ballard. 419 U .S. 498 (1975), where the more beneficial treatment of women had 

been designed to equalize the opportunities for promotion available to male and female naval 

officers.

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The second requirement, that the gender-based classification be “ substantially related” to the achievement of legitimate Government objectives, is 

somewhat less well defined. It is clear that the justification for the classification 

must in fact reflect the real governmental objective; for example, reliance on an 

overbroad assumption about dependency will not be regarded as an effort to 

remedy even demonstrable need. Califano v. Goldfarb, supra; Weinberger v. 

Wiesenfeld, 420 U.S. 636 (1975).10 Careful articulation of the intended 

objective is particularly important, see, Califano v. Webster, supra, so that the 

existence of such a direct nexus between injury and remedy will be apparent. A 

sound statistical or empirical base in support of the asserted assumptions is also 

important. See, Craig v. Boren, supra. Thus, where a gender-based classification is chosen as a means for achieving even those governmental objectives that 

are recognized to be legitimate, and particularly where such a classification is 

used to exclude certain persons from any possibility of receiving benefits or 

participating in Government programs because of their sex, care must be taken 

to provide a clear and demonstrable justification."

V

You have characterized findings by the Secretary of Labor regarding the 

underrepresentation of women in the skilled crafts and construction industry as 

evidencing “ the disabling effects of discrimination on women’s participation” 

in these segments of the labor m arket.12 Your concern is to provide the

loThe courts have sim ilarly, but without direct reference to the "substantial relationship" test, 

held that judicially imposed remedies designed to aid the victims of past discrimination must be 

precisely tailored so as not to exceed the scope o f the underlying injury. See, e.g.. Chance v. Board

o f Examiners, 534 F. (2d) 993, 999 (2d Cir. 1976), cert, denied, 431 U .S. 965 (1977) (rejecting 

preferential retention o f female or minority em ployees during layoffs to the detrim ent of senior 

nonminority personnel where such victims o f past discrim ination have been made whole by their 

appointment to an appropriate job with an appropriate fictional hiring date).

" F o r exam ple, a gender-based classification was struck down in Meloon v. Helgemoe, 564 F. 

(2d) 602 (1st Cir. 1977). In that case, the court relied rather heavily on New Ham pshire’s failure to 

provide a sufficient justification for adoption of such a classification, striking down a criminal 

statute which prohibited males from engaging in sexual intercourse with females under 15 but not 

like conduct by females with males under 15.

I2Y o u indicate that recently amended Labor Department regulations, 29 CFR Part 30, provide 

that written affirmative action plans for apprenticeship program s registered with the Department or 

with State agencies cover w om en, and include the establishm ent of goals and timetables. See 43 F. 

R. 20760 (M ay 12, 1978). At the time these regulations were promulgated the Department 

concluded that " [i]f women are ever to be fairly represented in the skilled crafts, their entry into 

apprenticeship program s must be greatly accelerated.” Id ., at 20762. Although women constituted 

40.5 percent of the national labor force in 1976, id., at 20764, the Department found that 

[w]omen have had only limited participation in apprenticeship program s, which is how 

many skilled craftsworkers enter their jobs .... [T]he proportion of women carpenters, 

electricians, painters, plum bers, m achinists, m echanics, stationary engineers, and a few 

other skilled trades ranged from less than 1 percent to about 3 percent of the total. 

Although the num ber of wom en apprentices increased by 74 percent in one year 

(1974-75) they still represented only i.2 percent o f the total number of apprentices 

registered. [Emphasis added.] [43 Fed. Reg. 20761]

The Department further found that while women were available and interested in entering the 

skilled trades "th e longstanding reputation of the trade for excluding women discourages many 

wom en from applying for these jo b s.” Id., at 20763.

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assistance necessary to eliminate these continuing effects of discrimination. To 

that end the WOW program is designed to provide participants with remedial 

instruction in mechanics, mathematics, and handling of tools, subjects which, 

during high school, women may have been prevented or discouraged from 

pursuing. The program seeks to provide an opportunity to review and reaffirm 

basic skills and knowledge .in a supportive atmosphere, thereby bolstering 

self-confidence and commitment to a career in the skilled crafts or construction 

industry. At the same time it also seeks to allay uncertainty and eradicate 

self-fulfilling doubts regarding prospects for success in jobs which women have 

in the past been discouraged from seeking. We believe that these are the types 

of substantial and legitimate governmental objectives that would satisfy the 

Supreme Court’s gender-based equal protection analysis.

Of greater concern is that the program satisfy the second part of the Court’s 

requirement, i.e., that there be demonstrated a substantial relationship between 

the choice of a gender-based classification and the achievement of the 

governmental objectives. While the Department, as previously noted, has 

already made certain findings concerning the underrepresentation of women in 

the construction trades, care should be taken as fully as possible to identify 

discrimination in the particular fields for which training is proposed. Also, 

women generally suffer from discrete educational deficiencies in the fields of 

basic mathematics, mechanics, and the manual arts. To support this generalization, an effort should be made to develop a factual record and to make findings 

with regard both to the existence of discrimination that has deterred women 

from seeking employment in the fields of construction, auto repair, and 

electronics, and with regard to practices of educational institutions that resulted 

in identifiable educational deficiencies specific to women. To the extent 

possible, these findings should be made both with reference to the Nation as a 

whole and with reference to the metropolitan Washington area.13

The electronics training segment of the WOW program requires special 

consideration because this training is somewhat different from the remedial 

education and support services in the other training tracks. Although such 

services are also provided during the first 2 months of the 14-month electronics 

course, the bulk of the training provided as part of the electronics segment 

satisfies the requirement of an additional period of formal vocational education

l3Section 301 authorizes funding of program s designed to remedy disadvantages found in general 

as well as in specific labor m arkets. Congress appears to have envisioned the use of title 111 funds 

to underwrite pilot program s capable of subsequent nationwide application. It may also be argued 

that in light of the mobility o f the population, where denial of employment or educational 

opportunities is alleged, the discrim ination is not limited to that practiced in the immediate local 

area. Cf.. Gaston County v. United States, 395 U.S. 285 (1969). The case in support of the W OW 

program and others like it may nevertheless be significantly strengthened by reference to evidence 

of discrimination on the local level.

While Agencies of the D.C. government or personnel affiliated with the W OW program may 

provide necessary data or other evidence of local discrim ination, findings of fact prepared by the 

Department of Labor would more surely constitute the sort of administrative findings envisioned by 

Mr. Justice Powell in Bakke as a critical factor in sustaining an affirmative action program which 

purports to remedy past discrim ination. See 438 U.S. at 307-310.

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that is regarded by employers in this field as a prerequisite before an applicant 

is considered eligible for employment.

In a number of cases the use of judicially imposed quotas or racially 

exclusive apprenticeship programs has been upheld by the courts.14 Those 

programs were designed to correct inequities in the actual operation of existing 

training programs by providing instruction tailored to minority needs or were 

intended to create a parallel educational opportunity where entry into the 

existing training structure has been effectively closed to members of minority 

groups. The additional formal training which the WOW electronics program 

represents is justified in terms of a discriminatory denial of pertinent postsecondary level opportunities for necessary vocational education. The findings 

of the Department of Labor demonstrate the exclusion of women from 

apprenticeships in the skilled crafts generally and suggest that women have 

been discriminated against in training programs such as this one. However, the 

electronics program does more than provide necessary supplemental training 

designed to make up for denial of pertinent high school level educational 

opportunities and goes beyond facilitating the entry into the job market of 

eligible persons with requisite qualifications. Therefore, specific findings— 

which link the need for provision of advanced training either directly to 

discriminatory practices in existing training programs or more indirectly to 

limited participation training opportunities that have resulted from practices and 

perceptions of practices in the job market— are important to support this 

particular segment of the WOW program.

VI.

The development of a detailed administrative record will aid significantly to 

sustain the legality of the WOW program in the event it is judicially challenged. 

We believe, however, that because the racially exclusive nature of the Davis 

admissions program proved to be perhaps the most significant factor in the 

Bakke decision, you should carefully consider whether a continuation of the 

program’s sexually exclusive approach is advisable.15

I45?e, e.g.. Southern Illinois Builders A ss’n v. Ogilvie, 471 F. (2d) 680 (7th Cir. 1972); United

Stales v. Ironworkers Local 86, 443 F. (2d) 544 (9th Cir. 1971), cert, denied, 404 U.S. 984 

(1971); Buckner v. Goodyear Tire <4 Rubber Co., 339 F. Supp. 1108 (N .D . Ala. 1972), a ffd , 476 

F. (2d) 1287 (5th Cir. 1973). But see, Weber v. Kaiser Aluminum <£ Chemical Corp., 563 F. (2d) 

216 (5th Cir. 1977), 443 U .S. 193 (1979).

'’Particular care should be taken to justify the choice of a racially or sexually exclusive approach 

undertaken by an Agency in the absence o f an explicit congressional determination and directive 

that this sort of a remedial affirmative action program is necessary in light of the inadequacy of 

other alternative approaches. The utilization o f a program designed along exclusive lines is justified 

where undertaken pursuant to express congressional authorization. The adoption o f a sexually 

exclusive program such as W OW which is undertaken pursuant to CETA presents what appears to 

be a middle case. W hile it m ay be inferred from the underlying congressional authorization that 

such a program would be consistent with the statutory schem e, an explicit congressional directive 

that programs drawn along these lines be em ployed is lacking. We therefore believe that the 

Department should consider and specify the reasons why it believes that the adoption o f a sexually 

exclusive approach to the adm inistration o f the W OW program is warranted.

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Certain cases suggest that the use of an adequately justified gender-based 

classification providing a remedial preference solely for women will be upheld. 

See, Califano v. Webster, supra; Kahn v. Shevin, supra; Schlesinger v. 

Ballard, supra. It is not clear, however, what effect the Bakke decision has had 

in this area. The four justices in the Brennan group applied the standard 

applicable to classifications based on sex and upheld the program.

Moreover, we believe that this program can be distinguished from the one 

struck down by the Court in Bakke. First, the authorization to fund a sexually 

exclusive program can be inferred from a statute that explicitly directs the 

Secretary to use Federal funds to provide services, employment, and training 

programs for women. Second, if appropriate findings, as outlined above, are 

made, they will establish a factual predicate of past discrimination closely 

related to the aims of the remedial program. Third, the nature of the exclusion 

here is significantly different from that present in the program held to be 

unlawful in Bakke. It is harder to identify the practical harm to the men who are 

excluded from this program since the program has been newly established in 

order to expand the pool of qualified job applicants by providing training to a 

class that has suffered discrimination in the past. Men can continue to enter the 

trade through the same apprenticeship programs that they have used in the past.

Nevertheless, the law in this area is far from clear and risks exist in funding a 

sexually exclusive program. Critical to Mr. Justice Powell’s pivotal opinion is 

the view that for a racially exclusive classification to be sustained, some 

significant justification for a departure from the norm of equal access for all and 

distribution of benefits according to individual merit or need must be provided. 

Such a justification may also be required where a sexually exclusive classification is employed, albeit that it may be subjected to a less stringent standard than 

that applicable under Bakke, where racial classifications are utilized. In either 

event, where the aims of a program can be effectively accomplished without the 

adoption of an exclusive classification the exclusivity might be seen as 

insufficiently justified.

To our knowledge, no attempt has been made formally to justify the decision 

to administer the WOW program along sexually exclusive lines. One possible 

argument in favor of this approach is that it serves more efficiently to funnel 

benefits to those presumed by the statute to need them most. In most 

circumstances, however, administrative convenience alone has not proved to be 

an adequate governmental interest to sustain gender-based classifications.16

Alternatively, while it is doubtful that a sexually exclusive training program 

could properly be maintained, in this case, since counseling is an integral and 

inseparable aspect of the WOW training process, the exclusion of men from the 

counseling or training sessions appreciably increases the program’s efficacy in 

breaking down participants’ self-doubts and stereotyped visions of themselves. 

It might, moreover, be shown that because of past discrimination and their 

limited access to training in the industrial and manual arts and related subjects,

l6Sf€, e.g., Califano v. Goldfarb, supra, at 217.

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women suffer from particularly severe and distinctive deficiencies in skill and 

knowledge relating to mechanics and tools so as to justify channeling available 

funds to their sole benefit. Broad assumptions or assertions based upon 

outmoded stereotypes alone, may not, in any event, serve as adequate 

justification for adoption of gender-based classifications, and selection criteria 

could better be structured to include women rather than outright prohibiting 

men from participation in the program .17

We recommend that based on the son of findings described above, a 

rebuttable presumption be adopted that women who meet the program’s 

eligibility requirements, more than others, have suffered from discrimination 

and its lingering effects. However, the applications of males who might also 

have been victims of similar discrimination in the job market or who, in their 

educational careers, have likewise been discouraged from developing basic 

mechanical and manual skills, should likewise be considered.

The program still could continue to focus primarily on women. For instance, 

we see no reason why the program’s name needs to be changed. Nor do we see 

any legal reason why those who administer the program cannot openly take 

steps designed to attract female applicants. Our advice is that, in light of Bakke,

you should carefully consider reasonable alternatives that are not sexually 

exclusive and which would effectively accomplish the goals of the program. 

The objectives of the WOW program, as we understand them, are certainly 

important governmental interests. We do not here discourage in any way the 

achievement of those objectives.

J o h n M . H a r m o n

Assistant Attorney General

Office o f Legal Counsel

n ld.

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