b'Applicability of Certain Cross-Cutting Statutes to Block\nGrants Under the Omnibus Budget Reconciliation Act of 1981\nTwo block grant program s created by the O m nibus Reconciliation Act of 1981 are subject to four\n\xe2\x80\x9ccross-cutting\xe2\x80\x9d statutes barring discrim ination on grounds of race, sex, handicap, and ag e, and\nactivities funded under those program s are subject to all of the regulatory and paperw ork\nrequirem ents im posed by those statutes.\nThe language and legislative history of the four nondiscrim ination laws at issue reveal that they were\nintended by C ongress to be statem ents of national policy broadly applicable to all program s or\nactivities receiving federal financial assistance. T herefore, in the absence of a clear expression of\ncongressional intent to exem pt a particular program from the obligations im posed by the four\ncross-cutting law s, those laws will be presum ed to apply in full force\nW hile the general purpose of the block grant concept is to consolidate and \xe2\x80\x9cdefederalize" prior\ncategorical aid to state and local governm ents, and to lighten federal regulatory burdens, there is\nno suggestion in the legislative history o f the two specific block grants at issue here that C ongress\nintended to exem pt program s or activities funded by them from the obligation not to discrim inate\nem bodied in the four cross-cutting statutes.\n\nJanuary 18, 1982\nM EM ORANDUM OPINION FOR THE COUNSEL TO THE DIRECTOR,\nOFFICE OF MANAGEMENT AND BUDGET\n\nI. Introduction\nThis responds to your request for our opinion concerning the applicability of\nfour \xe2\x80\x9ccross-cutting\xe2\x80\x9d1 laws to two specific block grant programs created by the\nOmnibus Budget Reconciliation Act of 1981, Pub. L. N o. 97-35, 95 Stat. 357\n[the Reconciliation Act], Although numerous cross-cutting laws are potentially\napplicable to the several block grants created by the Reconciliation A ct, you have\ninquired specifically about the applicability of four nondiscrimination statutes to\ntwo block grants administered by the Departments of Health and Human Services\n(HHS) and Education, respectively. These four nondiscrimination statutes are:\n(1) Title VI of the Civil Rights Act of 1964, 42 U.S.C. \xc2\xa7 2000d;\n\n\xe2\x80\x99 T he use of the term "cro ss-cu ttin g \xe2\x80\x9d refers lo the broad applicability o f the p articu lar statutes d iscussed herein to a\nw 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\nlegislative history o f th ese four statutes and the public policy reflected in them , o u r conclusions m ay not necessarily\napply to other cross-cutting statutes.\n\n83\n\n\x0c(2) Title IX of the Education Amendments Act of 1975, 20 U .S.C .\n\xc2\xa7 1681;\n(3) Section 504 of the Rehabilitation Act of 1973, 29 U .S .C . \xc2\xa7 794; and\n(4) The Age Discrimination Act of 1975, 42 U .S.C . \xc2\xa7\xc2\xa7 6101-6107.\nThe tw o relevant block grants are the Social Services Block Grant and the\nElem entary and Secondary Education Block Grant.\nThese two block grants were enacted as part of the massive Omnibus Budget\nReconciliation Act o f 1981, an unusual statute for its length, breadth, and\nrelatively sw ift enactm ent. The legislative breadth of the Reconciliation bill was\nsuch that som e 30 committees in both Houses of Congress had jurisdiction over\nthe bill. The Reconciliation bill adopted by the House, however, was not a\nproduct of the com m ittees but rather was an alternative known as the GrammLatta am endm ent. T he House considered the entire Reconciliation package in\nonly tw o days of debate, and its vote occurred on the same day that the then 700page G ram m -Latta amendment was made available for general distribution.2\nThe H ouse and Senate bills required the \xe2\x80\x9c largest and most complicated\nconference in the history of the C ongress.\xe2\x80\x9d S ee 127 Cong. Rec. H5759 (daily ed.\nJuly 31, 1981) (Sum m ary of Reconciliation Conference). In only a two-week\nperiod, 184 House conferees and 69 Senate conferees held a series of 58\n\xe2\x80\x9cm iniconferences.\xe2\x80\x9d T he Reconciliation Act that resulted is over 570 pages long,\nsee 95 Stat. 357-933, and although it is prim arily a \xe2\x80\x9cbudget\xe2\x80\x9d act, it necessarily\nm akes changes in substantive law in the num erous areas it addresses.3\nThe unique and complex nature of the legislation and its unprecedented\nlegislative history are noted because they are relevant to our analysis of the\nReconciliation Act and congressional intent with respect to the four cross-cutting\nstatutes. Your memorandum expresses the preliminary view that the four non\xc2\xad\ndiscrim ination statutes do not apply to the Social Services and the Elementary\nand Secondary Education Block Grants. This conclusion is based on several\nconsiderations: (1) the fundamental intent of Congress in enacting block grants\nwas to free the states from all federal encumbrances and regulations not specifi\xc2\xad\ncally im posed by the statutes; (2) as of the date of your memorandum, the blockgrant regulations that had been issued by the agencies responsible for administer\xc2\xad\ning them were silent on applicability of the four nondiscrimination statutes to the\ntwo block grants in question; (3) six of the eight block grants applicable to the\nD epartm ents o f Education and H ealth and Hum an Services explicitly incorporate\n2 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\no 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\nasp 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) (\xe2\x80\x9c I\nw 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\nh ardly had a ch an ce to read it.\xe2\x80\x9d ), id H3920 (rem ark s o f Rep. F^netta) (\xe2\x80\x9c We are dealin g here w ith over 250 pro g ram s,\nan 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\nco 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.\xe2\x80\x9d ) See also id.\nH 3924 (rem ark s o f Rep. F renzel, supporting G ram m -L atta 11) (\xe2\x80\x9cA ll o f us have been em barrassed by the tard in ess of\nth 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\n1 w ould invite each M em ber here\n. to\nraise 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\n\xe2\x80\x9d)\n3 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,\n1981) (rem ark s o f S en . D om enici)\n\n84\n\n\x0cnondiscrimination provisions, suggesting that the nondiscrimination require\xc2\xad\nments should not apply to the two block grants that omit them; (4) Congress itself\ndeleted nondiscrim ination provisions from the original A dm inistration p ro \xc2\xad\nposals; and (5) except for Section 504, nonapplicability of the nondiscrimination\nprovisions, which are largely redundant of constitutional or other statutory\nprotections or are of minimal effect, will reduce the regulatory and paperwork\naspects of enforcem ent of these rights without affecting to any significant extent\nthe substantive obligation not to discriminate.\nThe following additional views have also been expressed and we have consid\xc2\xad\nered them in our analysis:\n(1) The Secretary of Health and Human Services \xe2\x80\x9c interprets\nexisting laws against discrimination in Federally assisted pro\xc2\xad\ngrams as applying to the social services block grant.\xe2\x80\x9d See Interim\nFinal Rules for the Block Grant Programs, 46 Fed. Reg. 48,585\n(October 1, 1981) (to be codified in 45 C .F.R ., Parts 16, 74, and\n96). While your memorandum indicated that the draft HHS regu\xc2\xad\nlations did not purport to settle the issue, and that the regulations\nwere silent on the question except for the above quoted \xe2\x80\x9cadvisory\nstatem ent,\xe2\x80\x9d the Interim Final Rules since issued articulate the\nview that federal regulations related to discrimination on the basis\nof race, color, national origin, handicap, or age are applicable to\nthe Social Services Block G rant.4\n(2) According to your memorandum, the legal staff of the Depart\xc2\xad\nment of Education has expressed its view that \xe2\x80\x9call cross-cutting\nstatutes are applicable to the block grants.\xe2\x80\x9d The Department of\nEducation has not published regulations for the block grants.\n(3) The Civil Rights Division of the Department of Justice has\nforwarded to us a memorandum from Stewart Oneglia, Chief of\nthe Coordination and Review Section, to Deputy Assistant A t\xc2\xad\ntorney General D \xe2\x80\x99Agostino. This memorandum disagrees with\nthe position taken in your memorandum, and expresses the legal\nconclusion that the nondiscrimination statutes apply to the two\nblock grants.\n4 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\nfollows\nC urrent regulations in 45 C F.R Parts 80, 81, 84. and 90. w hich relate to discrim ination o n the\nb asis of race, color, national origin, handicap, o r ag e , apply by their term s to all recipients o f Federal\nfinancial assistance and therefore apply to all block grants. In particular, 45 C .F.R 80 4 and 84.5\nrequire certain assurances to accom pany applications for assistance In lieu o f the assurances\nrequired by Parts 80 and 84, the Secretary w ill accept the assurances required by the Act to be part of\nthe applications for the preventive health and health services, alcohol and drug abuse and m ental\nhealth services, m aternal and child health services, and low -incom e hom e energy assistance block\ngrants Those assurances incorporate the nondiscrim ination provisions pertinent to the block grants\ne ith er specifically o r as part of a general assurance that the applicant w ill com ply with block grant\nrequirem ents For the com m unity services, prim ary ca re , and social services block grants, the States\nshould furnish the assurances required by 45 C .F R . 80 4 and 84 5.\n\n85\n\n\x0c(4) You have provided us with a copy of a memorandum to you\nfrom Jim K elly of the Office of M anagement and Budget regard\xc2\xad\ning \xe2\x80\x9cA pplicability of Crosscutting Policy Requirements to Block\nG ran ts.\xe2\x80\x9d That memorandum recommends that Title VI, the Age\nD iscrim ination Act, and Section 504 should be considered to\napply to all block grants, and that Title IX also should be consid\xc2\xad\nered to apply to the Education Block.G rant. See note 5, infra.\nFor the reasons set forth in more detail below, we conclude that Congress\nevidenced no clear intent to exem pt the programs or activities funded by the two\nblock grants from the obligations imposed by the four nondiscrimination stat\xc2\xad\nu tes.5 In the absence of a clear indication of legislative intent to the contrary, we\nconclude that the block grant program s are subject to the nondiscrimination\nstatutes.\n\nII. The Nondiscrimination Statutes\nA . C overa g es a h d Purposes\n\nAll four of the relevant nondiscrimination statutes apply generally to programs\nor activities receiving \xe2\x80\x9c federal financial assistance.\xe2\x80\x9d For example, Title VI, the\nearliest o f these four nondiscrimination statutes, provides in broad terms:\nN o person in the United States shall, on the ground of race, color,\nor national origin, be excluded from participation in, be denied\nthe benefits of, or be subjected to discrimination under any\npro g ra m o r activity receiving F ederal finan cial assistance.\n\n42 U .S .C . \xc2\xa7 2000d (1976) (emphasis added). The other three nondiscrimination\nstatutes contain sim ilar prohibitions with respect to sex (in education programs),6\nag e ,7 and handicapped status.8 T he reach of these later three statutes is somewhat\nnarrow er than that o f Title VI as to the programs or activities covered9 or the kind\no f discrim ination prohibited.10\n5 A ctual application o f the nondiscrim ination statutes to specific program s o r activities m ay depend o n individual\ncircu 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\nm 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\nw 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\nthey w ould to other form s o f federal financial assistance\n6\n[N ]o person in the U nited States sh all, on the basis o f sex, be excluded from participation in , be\nd en ied the benefits of, o r be subjected to discrim ination under any education program or activity\nreceiving Federal financial assistance\n. .\n2 0 U .S C \xc2\xa7 1681(a) (1976) (em phasis ad d e d )\n7\n[N ]o person m the U nited Stales s h a ll, on the basis of age, b e excluded from participation in , be\nd en ied the benefits of, o r be subjected to discrim ination under any program or activity receiving\n\nFederal financial assistance\n4 2 U S .C . \xc2\xa7 6102 (1976) (em phasis added)\n8\nN o otherw ise qualified handicapped individual in the U nited S tates\ns h a ll, solely by reason of\nhis handicap, be excluded from th e participation in, be denied the benefits of, o r be subjected to\ndiscrim ination u n d er any program or activity receiving Federal financial assistance .\n29 U S .C .A . \xc2\xa7 794 (1980 Supp. Pamph ) (em phasis added).\n9 T itle IX applies only to certain education program s.\n10 T h e A ge D iscrim ination A ct prohibits o n ly \xe2\x80\x9cunreasonable age discrim ination "S ee H R C onf. Rep N o 670.\n94th C o n g ., 1st S ess 56 (1975) (em phasis in original). S ection 504 applies only to \xe2\x80\x9cotherw ise qualified\xe2\x80\x9d\nhan d icap p ed individuals. 29 U .S C. \xc2\xa7 794\n\n86\n\n\x0c(1) Title VI\nThe Civil Rights Act of 1964 was a comprehensive legislative program aimed\nat eradicating the \xe2\x80\x9cmoral outrage of discrim ination.\xe2\x80\x9d See 110 Cong. Rec. 1521\n(1964) (remarks of Rep. Celler). Title VI, as part of the 1964 Act, sought to\nachieve that goal by ensuring \xe2\x80\x9conce and for all that the financial resources o f the\nFederal Government\xe2\x80\x94 the commonwealth of Negro and white alike\xe2\x80\x94 will no\nlonger subsidize racial discrim ination.\xe2\x80\x9d See 110 Cong. Rec. 7054-55 (remarks\nof Sen. Pastore)." The requirement that federally assisted programs or activities\nbe nondiscriminatory was based on Congress\xe2\x80\x99 power to fix the terms by which\nfederal funds are made available, see 110 Cong. Rec. 7063 (1964) (rem arks of\nSen. Pastore), and the constitutional obligation not to discriminate. S ee Regents\nq f U niversity o f California v. Bakke, 438 U.S. 265, 284 (1978); note 15, infra.\nTitle VI also had roots in a \xe2\x80\x9cbasic fairness\xe2\x80\x9d concept: black citizens should not be\nrequired to subsidize with their federal tax money programs or activities that\ndiscrim inated against them . See 110 Cong. Rec. 7061 (remarks of Sen. Hart)\n(\xe2\x80\x9cwe do not take money from everybody to build something, admission to which\nis denied to some\xe2\x80\x9d).\nTitle VI represented a fundamental statement of national policy intended to\napply across-the-board to all programs or activities receiving federal financial\nassistance. Senator Humphrey, the Senate m anager of H .R. 7152, which was to\nbecom e the Civil Rights Act of 1964, identified in his opening statement on the\nbill several needs for Title VI. He noted first that Title VI was necessary because\nsome federal statutes actually appeared to contemplate grants to racially segre\xc2\xad\ngated institutions. Second, he noted that, although most federal agencies proba\xc2\xad\nbly already had the authority to make nondiscrimination a condition of receipt of\nfederal funds, \xe2\x80\x9c[e]nactment of Title VI will eliminate any conceivable doubts on\nthis score and give express legislative support to the agency\xe2\x80\x99s actions. It w ill\np la ce C ongress squarely on record on a basic issue c f national p o lic y on which\nCongress ought to be on record.\xe2\x80\x9d Third, Title VI would \xe2\x80\x9cinsure uniform ity an d\nperm anence to the nondiscrimination policy.\xe2\x80\x9d 110 Cong. Rec. 6544 (1964)\n(emphasis added). Finally, Senator Humphrey explained, enactment of Title VI\nwould end the growing practice of having to debate nondiscrimination provisions\neach time a federal assistance program was before Congress:\nMany of us have argued that the issue of nondiscrimination should\nbe handled in an overall, consistent way for all Federal programs,\nrather than piecemeal, and that it should be considered separately\nfrom the merits o f particular programs of aid to education, health,\nand the like. This bill gives the Congress an opportunity to settle\nthe issue of discrimination once and for all, in a uniform, across11 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\nSen ftislore) (\xe2\x80\x9c F rom birth to d eath , in sickness and in w ant, in school, in jo b training, in distribution o f surplus\nfood, in program staffing, in jo b referral, in school lunch program s, and in higher ed ucation, the N eg ro has\nconsistently b een subjected to gross and extensive deprivation. A nd the Federal G overnm ent has paid the bill \xe2\x80\x9d).\n\n87\n\n\x0cthe-board manner, and thereby to avo id having to debate the issue\nin p ie c e m e a l fashion every tim e any one c f these Federal a ssist\xc2\xad\nan ce p ro g ra m s is before the C ongress.\nId. (em phasis added).\n\nThe need to settle the issue \xe2\x80\x9c once and for all\xe2\x80\x9d was a repeated theme of the\ndebate surrounding Title VI. Senator Pastore, one of two Title VI \xe2\x80\x9ccaptains\xe2\x80\x9d on\nthe Senate floor, referred to past occurrences of \xe2\x80\x9cacrimonious debate\xe2\x80\x9d on non\xc2\xad\ndiscrim ination provisions, which had led to their defeat for fear that \xe2\x80\x9cif the\nprovision prevailed, the Senate might become involved in prolonged or pro\xc2\xad\ntracted debate, or even a filibuster, and the result might be no legislation\nwhatever.\xe2\x80\x9d 110 Cong. Rec. 7061. Thus, Senator Pastore explained: \xe2\x80\x9cIt is to avoid\nsuch a situation that Title VI w ould constitute as perm anent policy of the United\nStates G overnm ent the principle that discrimination will not be tolerated. This\nwould elim inate all the confusion and discussion that arise every tim e a grant bill\ncom es before the Senate.\xe2\x80\x9d Id. (em phasis added). Furthermore, explained Senator\nPastore, enactm ent of Title VI \xe2\x80\x9c would also a vo id any b a sis fo r argum ent that the\nfa ilu re c f C on gress to adopt such nondiscrim ination am endm ents in connection\nwith the particular program im plied con gression al approval of racial discrimina\xc2\xad\ntion in that program .\xe2\x80\x9d 110 C ong. Rec. 7062 (emphasis added).\nThis sam e them e was sounded in the House o f Representatives by Representa\xc2\xad\ntive Celler, w ho was the original sponsor of H .R. 7152 and also chaired the\nH ouse Judiciary Committee, which had jurisdiction over the Civil Rights Act.\nR eferring to prior attempts to enact nondiscrimination provisions as parts of\nindividual bills, C eller explained: \xe2\x80\x9cTitle VI enables the Congress to consider the\noverall issue of racial discrimination separately from the issue of the desirability\nof particular Federal assistance program s.\xe2\x80\x9d 110 Cong. Rec. 2468 (1964). Fur\xc2\xad\ntherm ore, enactm ent o f Title V I \xe2\x80\x9cwould tend to insure that the policy of non\xc2\xad\ndiscrim ination would be continued in future years a s a perm anent p a rt of our\nn ation al p o lic y .\xe2\x80\x9d Id. (emphasis added).\nT hus, it is clear that Title VI was intended to address, \xe2\x80\x9conce and for all,\xe2\x80\x9d racial\ndiscrim ination in federally funded program s. It represented the desire both to\nmake a statem ent of fundamental national policy and to avoid repeated debate\nover that national policy. In fact, Title VI was apparently thought to answer the\ncontention that noninclusion of discrim ination prohibitions in particular legisla\xc2\xad\ntion am ounted to endorsement o f discrim inatory practices. O f course, the Con\xc2\xad\ngress that enacted Title VI could not make it permanent in the sense of its being\nirrevocable. N evertheless, it is clear that Title VI was intended to be applicable to\nall program s or activities receiving federal financial assistance, and it should\ntherefore be considered inapplicable only when there is a clear indication that\nC 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\nprovisions.\n(2) The O ther Cross-Cutting Statutes\nThe legislative histories of the three other nondiscrimination statutes are less\nillum inating. This is probably attributable to the fact that Congress had already\n88\n\n\x0cdebated the concept behind this kind of legislation when it enacted Title VI. It is\nclear that Title IX, Section 504, and the Age Discrimination Act were modeled\nafter Title VI. See, e .g ., Cannon v. U niversity o f Chicago, 441 U.S. 677, 694\n(1979) (Title IX patterned after Title VI); NAACP v. M ed ica l Center, Inc., 657\nF.2d 1322, 1331 (3d Cir. 1981) (en banc) (\xc2\xa7 504 and Age Discrimination Act\npatterned after Title VI); Brown v. Sibley, 650 F.2d 760, 768 (5th Cir. 1981)\n(\xe2\x80\x9cCongress expressly modeled the discrimination prohibition contained in sec\xc2\xad\ntion 504 after the prohibitory language contained in Title VI and Title IX\xe2\x80\x9d). Thus,\nthe fundamental purpose of legislation like Title VI, which had been thoroughly\ndebated when Title VI itself was adopted, was not a particular focus of the\ndebates. Instead, Congress devoted its attention to possible areas of coverage.\nFor exam ple, the Title IX debate focused not so much on the need to have a\ngenerally applicable prohibition of sex discrimination in federally funded educa\xc2\xad\ntion programs but instead on which institutions would be subject to its proscrip\xc2\xad\ntions\xe2\x80\x94 especially whether or to what extent religious, military, and single-sexundergraduate institutions would be covered.\nNevertheless, it is clear that Title IX was intended to operate like Title VI,\nalthough it would apply in all aspects only to certain educational institutions.\nThus, Representative Green, the floor manager of H.R. 7248, explained that Title\nIX (then Title X in the draft bill) was \xe2\x80\x9creally the same as the Civil Rights Act\n[Title VI] in terms of race.\xe2\x80\x9d S ee 117 Cong. Rec. 39256 (1971). And Senator\nBayh, who sponsored the draft language in the Senate bill, S. 659, explained that\nTitle IX was intended to have comprehensive application to the covered institu\xc2\xad\ntions, in order to rem edy \xe2\x80\x9cone of the great failings of the American educational\nsystem . . . the continuation of corrosive and unjustified discrimination against\nwom en.\xe2\x80\x9d 118 Cong. Rec. 5803 (1972). Like Title VI, Title IX also reflected the\n\xe2\x80\x9cfairness\xe2\x80\x9d notion that American taxpayers should not be required to subsidize,\nthrough their taxes, program s, or activities that discriminated against som e of\nthem. See 117 Cong. Rec. 39257 (remarks of Rep. Green quoting Secretary of\nHEW quoting President Nixon) (\xe2\x80\x9cN either the President nor the Congress nor the\nconscience of the Nation can perm it money which comes from all the people to be\nused in a way which discrim inates against some of the people.\xe2\x80\x9d); id. at 39252\n(remarks of Rep. M ink) (\xe2\x80\x9cMillions of women pay taxes into the Federal treasury\nand we collectively resent that these funds should be used for the support of\ninstitutions to which we are denied equal access.\xe2\x80\x9d).\nThat Section 504 has roots in Title VI and Title IX is also clear. Although\nSection 504 of the 1973 Rehabilitation Act was enacted with virtually no\nlegislative history, the next year the Senate Labor and Public Welfare Committee\nincluded the following statement in the legislative history of the Rehabilitation\nAct Amendments of 1974:\nSection 504 was patterned after, and is almost identical to, the\nanti-discrimination language of section 601 of the Civil Rights\nAct of 1964, 42 U .S.C . 2000d\xe2\x80\x941 (relating to race, color, or\nnational origin), and section 901 of the Education Amendments of\n1972, 42 U .S .C . 1683 (relating to sex). The section therefore\n89\n\n\x0cconstitutes the establishment of a broad government policy that\nprogram s receiving Federal financial assistance shall be operated\nw ithout discrimination on the basis of handicap.\nS. Rep. N o. 1297, 93d Cong., 2d Sess. 39-40 (1974).12 Thus, like Title VI and\nTitle IX , Section 504 represents a broad statement of national policy intended to\nhave application across-the-board. As explained in the 1974 Senate Report: \xe2\x80\x9cIt is\nintended that Sections 503 and 504 be administered in such a manner that a\ncon sisten t, uniform, an d effective F ederal approach to discrim ination again st\nh an d ica p p ed p e rso n s would resu lt.\xe2\x80\x9d Id. at 40 (emphasis added).\n\nThe last of the nondiscrimination provisions under consideration is the Age\nD iscrim ination Act of 1975, w hich was enacted as part of the Older Americans\nA m endm ents o f 1975, a com prehensive package directed to problems of the\nelderly. Representative Brademas, the House manager of the Amendments,\nexplained of the House version: \xe2\x80\x9ctitle III . . . will clearly enunciate national\npolicy that discrim ination against the elderly based on their age will not be\nto le ra te d .. . .\xe2\x80\x9d 121 Cong. Rec. 9212(1975). The Act was intended to have broad\ncoverage and to apply not just to the elderly but to \xe2\x80\x9cage discrimination at all age\nlevels, from the youngest to the oldest.\xe2\x80\x9d Id. The broad applicability of the Age\nD iscrim ination Act was evidenced by explicit reference to its application to the\nmost unrestricted kind of federal funding\xe2\x80\x94 general revenue sharing. See 42\nU .S .C . \xc2\xa7 6101 (1976) (\xe2\x80\x9cIt is the purpose of this chapter to prohibit unreasonable\ndiscrim ination on the basis of age in program s or activities receiving Federal\nfinancial assistance, including program s or activities receiving funds under the\nState and Local Fiscal Assistance Act of 1972 (31 U .S .C . 1221 et seq.).\xe2\x80\x9d)\n(em phasis added).\nA lthough the statute was \xe2\x80\x9cmodeled on Title V I,\xe2\x80\x9d see H .R . Conf. Rep. No. 670,\n94th C o n g ., 1st Sess. 56(1975), its coverage is less extensive than Title VI in one\nsignificant way: it prohibits only \xe2\x80\x9cunreasonable\xe2\x80\x9d age discrimination. Further\xc2\xad\nm ore, C ongress provided for delayed im plem entation of regulations as well as for\npreparation of an age-discrimination study, because of concerns that it had too\nlittle inform ation about either th e extent or the \xe2\x80\x9creasonableness\xe2\x80\x9d of age discrim i\xc2\xad\nnation in federally assisted program s. See 121 Cong. Rec. 37735 (1975)\n(rem arks o f Senator Eagleton). N onetheless, as to \xe2\x80\x9cunreasonable\xe2\x80\x9d age discrim i\xc2\xad\nnation, the Age Discrimination Act was m odeled after Title VI and was intended\nto be a statem ent o f national policy. See 121 C ong. Rec. 9212 (remarks of Rep.\nBrademas).\n(3) G eneral Application of the Four Cross-Cutting Statutes\nThe legislative histories of all four nondiscrim ination statutes thus evidence a\ncongressional intent to implement as national policy their prohibitions against\n12\n\nA 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,\n\nsee Southeastern Com munity College v. Davis, 442 U .S . 3 9 7 ,4 1 1 (1979), this statem ent has been regularly referred\nto by the c o u rts, and \xc2\xa7 504 is consistently construed as having its roots in Titles VI and IX . See, e.g , Pushkin v\nRegents o f U. c fC o lo ., 6 5 8 F.2d 1372 (1 0 th Cir. 1981).\n\n90\n\n\x0cdiscrimination. While the later statutes have less extensive histories, it is clear\nthat Title VI was intended to end the need for a program-by-program debate about\nthe prohibition of racial discrimination. There is ample basis for concluding that\nCongress was implementing that same intent with the other three statutes by\nchoosing Title VI as the model for those statutes and by enacting essentially the\nsame broadly applicable language. Nothing in the history suggests that Congress\nintended later Congresses to be required to specify the applicability of these\nstatutes to individual funding legislation\xe2\x80\x94 in fact, the evidence is to the contrary.\nThat the statutes have a broad sweep is also clear from their application not just\nto federal categorical programs, but to all \xe2\x80\x9cFederal financial assistance,\xe2\x80\x9d \xe2\x80\x9cby way\nof grant, loan, or con tract other than a contract of insurance or guaranty,\xe2\x80\x9d see 20\nU .S.C . \xc2\xa7 1682;42 U .S.C . \xc2\xa7 2 0 0 0 d - l;4 2 U .S.C . \xc2\xa7 6103(a)(4) (adding\xe2\x80\x9centitle\xc2\xad\nment\xe2\x80\x9d to list) (emphasis added). See also 29 U .S .C . \xc2\xa7 794a(2) (providing that\nremedies, procedures and rights set forth in Title VI shall be available under\n\xc2\xa7 794). In fact, the Age Discrimination Act makes clear that the term \xe2\x80\x9cFederal\nfinancial assistance\xe2\x80\x9d includes general revenue sharing, see 42 U .S.C . \xc2\xa7 6101, a\nform of federal assistance that is essentially unrestricted as to the purposes for\nwhich it may be used.\nThus, the statutes are fundamental pieces of legislation intended to remedy\nperceived wrongs to those discriminated against on the basis of race, sex,\nhandicapped status, and age. Their language and legislative histories evidence a\nbroad purpose to be given effect through across-the-board application whether or\nnot a particular program specifically incorporates the nondiscrimination statutes.\nB. Enforcement Procedures\n\nTo achieve the goal of ending discrimination on the bases prohibited by the\nstatutes, Congress has provided for an administrative scheme of enforcem ent,\nwhich favors conciliation over termination of funds and is designed to provide\ncertain safeguards for fund recipients. See 110 Cong. Rec. 7066 (1964) (remarks\nof Sen. Ribicoff). Thus, the statutes direct the issuance of rules or regulations of\ngeneral applicability and prohibit termination of funds until the recipient is\ninformed of its failure to comply and the administrative agency has determined\nthat voluntary com pliance cannot be secured. Termination may occur only after\nfiling a report with Congress and the expiration o f a 30-day waiting period after\nfiling such a report. Termination is limited to the particular noncomplying\nprogram. See 20 U .S .C . \xc2\xa7 1682; 42 U .S .C ., \xc2\xa7 2 0 0 0 d -l; id ., \xc2\xa7 6 1 0 4 .13 Each\nagency that administers federal financial assistance issues clarifying regulations\nas to the relevant nondiscrimination statutes, setting forth the discriminations\nprohibited, assurances required, and com pliance information. See, e .g ., 45\nC .F.R ., Parts 80, 81, 84, 90 (1980). By Executive Order 12250, the Attorney\nGeneral is directed to coordinate implementation and enforcement of Title VI,\nTitle IX , Section 504, and any other provision prohibiting discrimination in\nfederally assisted programs.\nn By express provision. S ection 504 is to be adm inistered under the sam e term s as Title VI.\n\n91\n\n\x0cW hen C ongress has actually specified that the nondiscrimination provisions\napply to particular legislation extending financial assistance, it often has also\nprovided for a different or more detailed administrative enforcement mechanism\nthan is provided in the underlying cross-cutting statutes, or has added to the\ncategories of prohibited discriminations. See, e .g ., State and Local Fiscal Assist\xc2\xad\nance Act o f 1972, as amended, 31 U .S .C .A . \xc2\xa7 6716 (1982); Community\nD evelopm ent B lock Grant of 1974, 42 U .S .C . \xc2\xa7 5309 (1976); Omnibus Crime\nC ontrol and Safe Streets Act o f 1968, as am ended, id. \xc2\xa7 3789d (1982). These\ndifferences may account for Congress\xe2\x80\x99 making specific reference to the non\xc2\xad\ndiscrim ination statutes. Thus, specific reference to the nondiscrimination statutes\nis not necessarily an indication that Congress believes the statutes to be otherwise\nin ap p licab le.14\n14 T h e S tate and L ocal F iscal Assistance A ct provides:\nN o person in the U nited States s h a ll, on the ground of race, color, national origin, o r sex, be\nex cluded from participation in .b e den ied the benefits of, o r be subjected to discrim ination un d er any\np rogram o r activity o f a State governm ent o r unit of local governm ent, w hich governm ent o r unit\nreceiv es funds m ade available under subchapter I . . . A ny prohibition against discrim ination on\nthe 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\nan o therw ise qu alified handicapped individual as provided in section [504] shall also apply\n31 U S .C . \xc2\xa7 1242(a)(1) (1976).\nT he inclusion o f a reference to the Age D iscrim ination A ct in this revenue sharing act illustrates that specific\nreference to a c ro ss-cu ttin g statute does not necessarily reflect a cong ressio n al determ ination that the cross-cutting\nstatute is otherw ise in ap p licab le To the contrary, the A ge D iscrim ination A ct itself explicitly provides that \xe2\x80\x9c federal\nfinancial assistan c e\xe2\x80\x9d includes revenue sharing under the Fiscal A ssistance A ct and w ould have been applicable in\nany 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,\nh 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\np ro hibition against ag e discrim ination in th e revenue sharing act had independent significance\nT 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\nprohibits \'\xe2\x80\x98u n reaso n ab le\xe2\x80\x9d age discrim ination in program s and activities receiving Federal financial\nassistan c e, in cluding revenue sharing funds. T he C om m ittee intends that its am endm ent to the\nR evenue S h arin g A ct be considered a separate and independent statutory right that age discrim in a\xc2\xad\ntio n not be p ractice d by governm ents receiving revenue sharing funds. It is im portant that the\nC 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\xc2\xad\nm ent o f the C o n g ress\xe2\x80\x99 actions in th e 1975 A ge D iscrim ination A ct U nlike the 1975 A ct, the\nC o m m ittee bill w ould prohibit age discrim ination in all activities o r program s o f revenue sharing\nrecip ien ts, rather than m erely those in those program s and activities receiving revenue sharing funds\nA 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\nthe fungibility o f funds Also, u n lik e the 1975 A ct, the C om m ittee m easure establishes m ore\nd etailed and autom atic suspension a n d term ination procedures, and d o es not delay effectiveness of\nthe provision until January I, 1979 Because o f these significant distinctions, in term s o f the\nb 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\nbe su b jec t to a lim ited o r narrow interpretation based on the 1975 A ge D iscrim ination A ct Rather,\n\nthe Committee bill and the 1975 legislation are to be viewed as independent yet complementary\nmeasures. B oth seek to insure the elim ination o f unreasonable age discrim ination w hich is federally\nfinanced, b u t they nevertheless establish different approaches to the overall prohibition as well as to\nthe en fo rcem en t m echanism The C om m ittee intends that through cooperation agreem ents (d is\xc2\xad\ncu ssed h erein after) the various D ep artm en ts responsible for enforcem ent under the tw o laws w ill\nco o rd in ate, to the g reatest extent p o ssib le , those enforcem en t efforts.\nH .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\nadded).\nIt also appears that inclusion o f a nondiscrim ination provision in the Safe S treets A ct need not be interpreted to\nsignify 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\nS 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\nad 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\nq 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\nreq 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\no 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\nc 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\nciv il actions m ay be filed by the A dm inistration and that \xe2\x80\x9c pattern and practice\xe2\x80\x9d su its m ay be filed by\nthe A ttorney G en eral.\n(E m p h asis added )\n\n92\n\n\x0cC. Summary\n\nThe statutory language and legislative histories of the four nondiscrimination\nstatutes reveal that the statutes are congressional statements of fundamental\nnational policy intended to have across-the-board application not just to federal\ncategorical programs but to nearly all forms of federal financial assistance,\nincluding grants, loans, and most contracts. W hile Title VI and Title IX might be\nsaid to prohibit discrimination that is also prohibited by the Constitution, it is not\nclear that they are merely redundant of existing rights.15 In any event, Section 504\nand the Age Discrimination Act prohibit discrimination not otherwise prohibited\nby the Constitution. Additionally, the four statutes provide for administrative\nmeans of enforcem ent that are designed to provide certain safeguards while also\naccomplishing the objective of ending discriminatory activities. See 110 Cong.\nRec. 7066 (1964) (remarks of Sen. Ribicoff).\nThus, the statutes stand as im portant components of the national body of\nantidiscrimination law, intended to apply to all programs or activities receiving\nfederal financial assistance without being explicitly referenced in subsequent\nlegislation. They should therefore be considered applicable to all legislation\nauthorizing federal financial assistance\xe2\x80\x94 which includes not only grants and\nloans, but also most contracts\xe2\x80\x94 unless Congress evidences a contrary intent.\n\nIII. The Block Grants\nA. Background\n\nFederal funding has traditionally been in the form of categorical grants, which\ncan be used only for specific programs designated by Congress and as directed by\nusually detailed federal regulations.16 Two other forms of federal funding, block\ngrants17 and general revenue sharing, provide for less restrictive use of federal\nfunds by the states. Block grants generally consolidate several categorical\nprograms into \xe2\x80\x9c federal payments to state or local governments for generally\n15\nLanguage in the Bakke case suggests that T itle VI may be coextensive w ith constitutional guarantees. See\nRegents c f University c f California v. Bakke. 438 U .S 265. 284 (1978) (\xe2\x80\x9c {ex am in atio n o f the v olum inous\nlegislative history o f Title VI reveals a congressional intent to halt federal funding o f en tities that violate a\nprohibition of racial discrim ination sim ilar to that o f the C onstitution"). In Lau v Nichols. 414 U .S . 563 (1974).\nhowever, the S uprem e C ourt had applied a \xe2\x80\x9cd iscnm inatory-effects\xe2\x80\x9d test under Title VI It has been suggested that\nBakke overruled Lau sub silentio, thus requiring pro o f of discrim inatory intent, see Washington v Davis, 4 2 6 U S.\n229. 239 (1976), but the C ourt has declined to rule w hether Title VI incorporates the constitutional stan d ard . See\nBoard c f Education v. Harris. 444 U S 130. 149 (1979) Som e courts therefore have applied an \xe2\x80\x9c im pact-only\xe2\x80\x9d\nanalysis 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\nbanc) (Title V I, \xc2\xa7 5 0 4 , and A ge D iscrim ination A ct)\n,6 \xe2\x80\x9c W hat truly characterizes a categorical grant is that it is adm inistered by the Federal bureaucracy, and it is this\naspect o f categorical program s that President Reagan finds m ost o b jectionab le.\xe2\x80\x9d 127 C ong R ec. S 682I (daily ed.\nJune 2 4 , 1981) (rem arks of Sen Hatch).\n17\nBlock 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\nA ct o f 1968, as am en d ed , 42 U S C \xc2\xa7\xc2\xa7 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\n\xc2\xa7\xc2\xa7 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,\nthe Social Services B lock G rant am ends Title XX o f the Social S ecurity A ct, 4 2 U .S .C \xc2\xa7 1397, an existing block\ngrant A lthough C ongress did not explicitly incorporate nondiscrim ination provisions in the ea rlier version o f T itle\nX X , it has been assum ed that nondiscrim ination provisions apply to program s o r activities receiving T itle XX\nassistance See Brown v. Sibley. 650 F 2d 7 6 0 .7 6 9 (5th Cir. 1981) (\xc2\xa7 504 inapplicable because no allegation that tw o\nprogram s funded by Title XX w ere discrim inatonly m anaged).\n\n93\n\n\x0cspecified purposes, such as health, education, or law enforcement. The money\nmust be spent on programs in the general area, but state or local officials make the\ndecisions on specifically how the money is used.\xe2\x80\x9d 1981 Cong. Q. 449 (Mar. 14,\n1981). Put another way, \xe2\x80\x9cwhat distinguishes a block grant [from a categorical\ngrant] is that it is directed at a broad purpose, and is administered by the grant\nrecipient.\xe2\x80\x9d S ee rem arks of Sen. Hatch, 127 Cong. Rec. S6822 (daily ed. June 24,\n1981). General revenue sharing is considered to be at the opposite end of the scale\nfrom categorical grants, because its use is \xe2\x80\x9cvirtually unrestricted.\xe2\x80\x9d See 1981\nC ong. Q. 449. S ee also G oolsby v. B lum enthal, 581 F.2d 455, 465 (5th Cir.\n1978) (Thom berry, J., dissenting) (revenue sharing is \xe2\x80\x9cvastly different\xe2\x80\x9d from\nblock grants), opin ion adopted in relevant portion a s opinion of the court, 590\nF.2d 1369 (5th Cir.) (en banc), cert, denied, 444 U.S. 970 (1979); Ely v. Velde,\n497 F.2d 252, 256 (4th Cir. 1974) (\xe2\x80\x9cA block grant is not the same as unencum \xc2\xad\nbered revenue sharing, for the grant com es with strings attached.\xe2\x80\x9d).\nThe initiative to replace categorical program s with block grants to the states\nstem s from several significant concerns. First, the block grants concept reflects a\nfundam ental belief that state and local entities are better suited to choosing the\nproper program s or activities fo r their citizens than is the federal governm ent.18\nD ecentralization of allocational decisionm aking is also intended to result in\nincreased efficiencies.19 As Senator Hatch explained in Senate debate over the\nR econciliation Act:\nThe block grants will reduce bureaucratic overhead. They will\ngive the states greater flexibility for efficient management and for\nthe setting of priorities. Scarce dollars must be used for the most\npressing needs in the m ost practical way. The huge and remote\nFederal bureaucracy is not suited to these purposes. The States are\nbetter situated to do the job.\n127 Cong. Rec. S6821 (daily ed. June 24, 1981). Increased efficiency through\nelim ination of numerous regulatory requirements is intended to enable the\nfederal governm ent to fund program s at lower levels than would otherwise be\nnecessary and thus to result in substantial savings.\n18\nSee L etter from S ecretary o f Education T .H . Bell to T h o m as P. O \xe2\x80\x99N eill, Jr (A pr 28, 1981) (transm itting\np roposed E lem e n tary and S econdary E ducation C onsolidation A ct o f 1981) (\xe2\x80\x9cThe proposed legislation w ould\nperm 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\neducational services should be provided, ab o u t priorities am o n g needs, and about w hat services should be\noffered \xe2\x80\x9d ), L etter from H H S Secretary R ichard Schw eiker to T hom as P. O \xe2\x80\x99Neill (transm itting proposed Social\nS ervices B lock G ran t) (\xe2\x80\x9cth e proposal will h elp to restore to the S tates the m ajor role w hich should be theirs in\nassessin g and responding to the social services needs of their population. By rem oving requirem ents and earm arks\ng iving priority to certain services and certain population gro u p s, the draft bill will greatly increase the ability o f\nS tate and local governm ents to concentrate th e ir resources on m eeting their m ost serious social service n eed s.\xe2\x80\x9d ) See\nalso 1981 C ong Q 449 (M ar 14, 1981) (quoting A dm inistration\'s Mar. 10 budget \xe2\x80\x9cT he federal governm ent m\nW ashington has no special w isdom in dealing w ith m any o f the social and educational issues faced at the state and\nlocal level \xe2\x80\x9d )\n}9See, e g .. L etter from H H S Secretary R ic h ard Schw eiker, supra note 18 (\xe2\x80\x9c by elim inating m any Federal\nadm inistrative req u irem en ts, reporting requirem ents, standards and the like, the draft bill w ill perm it more efficient\nadm inistration o f the S tates\xe2\x80\x99 social services pro g ram s, thus freeing resources for the provision o f services and\np ro d u cin g significant co st sav in g s\xe2\x80\x9d ).\n\n94\n\n\x0cB. The Education a n d the Social S ervices Block G rants\n\nThe Elementary and Secondary Education Block Grant, known as the \xe2\x80\x9cEduca\xc2\xad\ntion Consolidation and Improvement Act of 1981,\xe2\x80\x9d addresses two areas of\neducation funding: (1) funding for the educational needs of disadvantaged\nchildren (Chapter 1) and (2) consolidation of federal programs previously under\nseveral other program s \xe2\x80\x9cto be used in accordance with the educational needs and\npriorities of State and local educational agencies as determined by such agen\xc2\xad\ncies.\xe2\x80\x9d (Chapter 2.) In both chapters, Congress has clearly expressed its intent to\nplace supervision, direction, and control in the hands of state and local au\xc2\xad\nthorities. See \xc2\xa7\xc2\xa7 552, 561(a)(6), 95 Stat. at 463, 562. Chapter 1 funding is to be\naccomplished \xe2\x80\x9c in a manner which will eliminate burdensome, unnecessary, and\nunproductive paperw ork,\xe2\x80\x9d id. \xc2\xa7 552, and Chapter 2 is designed to \xe2\x80\x9cgreatly\nreduce the enorm ous administrative and paperwork burden imposed on schools at\nthe expense of their ability to educate children.\xe2\x80\x9d Id. \xc2\xa7 561(a).\nThe Social Services Block Grant amends an existing social services block\ngrant, Title XX o f the Social Security Act, 42 U .S.C . \xc2\xa7 1397. S ee note 17,\nsupra. Its purposes are\nconsolidating Federal assistance to States for social services into a\nsingle grant, increasing State flexibility in using social service\ngrants, and encouraging each State, as far as practicable under the\nconditions in that State, to furnish services directed at the goals\n\nof\xe2\x80\x94\n(1) achieving or maintaining economic self-support to pre\xc2\xad\nvent, reduce, or eliminate dependency;\n(2) achieving or maintaining self-sufficiency, including re\xc2\xad\nduction or prevention of dependency;\n(3) preventing or remedying neglect, abuse, or exploitation\nof children and adults unable to protect their own interests, or\npreserving, rehabilitating or reuniting families;\n(4) preventing or reducing inappropriate institutional care by\nproviding for community-based care, home-based care, or\nother forms of less intensive care; and\n(5) securing referral or admission for institutional care when\nother forms of care are not appropriate, or providing services to\nindividuals in institutions.\nSee \xc2\xa7 2001, 95 Stat. at 867.\n\nBoth of these block grants enacted by Congress are somewhat more limited\nthan those initially proposed by the Administration. In the education area, for\nexample, the Administration sought to consolidate 44 existing programs into two\nblock grants. See 127 Cong. Rec. S4329 (daily ed. May 4, 1981) (remarks of\nSen. Hatch introducing Administration\xe2\x80\x99s draft legislation). Proposed Chapter 1\nsought to consolidate federal assistance for several programs, including m ajor\n95\n\n\x0cfederal program s for disadvantaged children (Title 1 of the Elementary and\nSecondary Education Act (ESEA)) and handicapped children (Pub. L. 94-142).\nC hapter 1 as enacted by Congress, however, left Title I of the ESEA intact as to\nform ula and m ethod of distributing funds, and purposes for using those funds,\nand did not consolidate programs for the handicapped. Chapter 2 consolidated\napproxim ately 30 smaller program s into a single block grant. S ee 127 Cong. Rec.\nH 5795-5796 (daily ed. July 3 1 , 1981) (rem arks of Rep. Ashbrook explaining\nConference resolution).\nT he A dm inistration\xe2\x80\x99s proposed Social Services Block Grant also sought to\nconsolidate and repeal numerous programs: Title XX of the Social Security Act;\nthe child welfare and foster care and adoption assistance programs under parts B\nand E of Title VI o f that Act; the authority in five titles of that Act for provisions of\nsocial services in the territories; the Developmental Disabilities Assistance and\nBill o f R ights A ct; the Child A buse Acts of 1974 and 1978; the Runaway and\nH om eless Youth Act; the Rehabilitation Act of 1973 (except definition of\n\xe2\x80\x9chandicapped\xe2\x80\x9d and nondiscrimination provisions); and certain sections of the\nCom m unity Services Act of 1974. The Social Services Block Grant eventually\nadopted by Congress, however, essentially am ended Title XX, the existing social\nservices block grant. A separate com m unity services block grant was also\nenacted. S ee \xc2\xa7 671, 95 Stat. at 511.\nA lthough, Congress clearly intended the block grant mechanism to decrease\nfederal involvem ent in program adm inistration, the Education and Social Serv\xc2\xad\nices Block G rants are not without federal requirements. Chapter 1 of the Educa\xc2\xad\ntion Block G rant, for example, essentially leaves intact Title 1 of the Elementary\nand Secondary Education Act, although rem oving \xe2\x80\x9cthose detailed requirements\nand instructions on how to conduct programs which caused most of a staggering\n5 m illion hours o f paperwork each year. . .\nSee 127 Cong. Rec. H5796 (daily\ned. July 31, 1981) (remarks of Rep. Ashbrook explaining conference resolution).\nFunds must be used only for specified purposes and are distributed according to\nprior form ulas and methods. T he states may be required to keep records neces\xc2\xad\nsary for fiscal audit and program evaluation, and local agencies may receive\nfunds only after the state approves applications expressing intended uses of the\nfunds. The application must contain assurances as to accurate recordkeeping,\nwhich m ust reflect that programs and projects are conducted in attendance areas\nwith high concentrations of low-income children, and that the need for such\nprogram s, and their size, shape, and quality have been assessed and evaluated.\nS ee \xc2\xa7 557(b), 95 Stat. at 466. Chapter 2 requires states to utilize an advisory\ncom m ittee representing school children, teachers, parents, local boards, adm in\xc2\xad\nistrators, institutions of higher education, and the state legislature, for advice and\nannual evaluation, and requires recordkeeping for fiscal accountability, as well as\nrequiring that local agencies file applications with the states and keep necessary\nrecords. M aintenance-of-effort provisions are retained in a modified form.\nSubchapter A funds may be used for basic skills development. Subchapter B\nfunds may be used for educational improvement and support services and\nsubchapter C funds for special projects, with both subchapters providing a list of\n96\n\n\x0cspecific \xe2\x80\x9cauthorized activities.\xe2\x80\x9d The intent to decrease federal involvement is\nmanifested not by a prohibition of federal regulations but rather by the authoriza\xc2\xad\ntion of a relatively narrow range of regulations in matters related to \xe2\x80\x9cplanning,\ndeveloping, implem enting, and evaluating programs and projects. . . .\xe2\x80\x9d See\n\xc2\xa7 591, 95 Stat. at 480.\nSimilarly, under the Social Services Block G rant, the states are required to\ndevelop, make public, and submit to the Secretary of HHS a report on intended\nuse of the funds, including information on the types of activities to be funded and\nthe individuals to be served. Every two years, detailed reports regarding expend\xc2\xad\nitures must be submitted by the states and audits must be conducted. Federal\nrequirements as to amounts to be spent on welfare recipients and income levels of\nrecipients are not included, however. The states are specifically prohibited from\nusing the funds for seven forms of services, ranging from land purchases to cash\npayments. See gen erally H.R. Conf. Rep. No. 208, 97th C ong., 1st Sess. 654,\n989-92 (1981).\nAll block grants enacted by the Reconciliation Act are also subject to the\nprovisions of \xc2\xa7\xc2\xa7 1741\xe2\x80\x9445 of that Act. Section 1742 requires each state to report\non the proposed use of block grant funds, including: (I) goals and objectives; (2)\nactivities to be supported, areas to be served, and \xe2\x80\x9ccategories or characteristics\xe2\x80\x9d\nof individuals to be served; and (3) the criteria and method for fund distribution.\nPursuant to \xc2\xa7 1745, states are required to conduct financial and compliance\naudits of block grant funds.\nC. Theoretical A pplication c f the N ondiscrim ination Statutes to Block G rants\n\nThe two block grants are not unrestricted grants of federal monies to be used by\nthe states in any m anner they choose. While clearly consolidating and \xe2\x80\x9cdefederalizing\xe2\x80\x9d prior program s, the block grants nevertheless specify the purposes for\nwhich the funds are to be used (though permitting some selection within the\ngroup of perm issible purposes) and impose reporting and other requirements\ndesigned to ensure the accountability of those receiving the funds. These require\xc2\xad\nments enable tracing of block grant funds to specific programs and activities.\nThus, it appears that the cross-cutting requirements of nondiscrimination can be\nimposed on specific programs or activities receiving block grant funds. Addi\xc2\xad\ntionally, fund termination, if necessary, can be accomplished as to those specific\nprograms or activities found to have discriminated.\nEven general revenue sharing to state and local governments, which is a form\nof federal assistance not limited to specific areas or purposes, is subject to the\nnondiscrimination laws. Revenue sharing is generally considered to entail even\nless federal involvement than block grant funding. Congress has nevertheless\nmade explicit its intention that the nondiscrimination statutes apply to a ll pro\xc2\xad\ngrams or activities of a recipient government. See note 14, supra. State or local\ngovernments may avoid the nondiscrimination requirements only by dem onstrat\xc2\xad\ning, \xe2\x80\x9cby clear and convincing evidence,\xe2\x80\x9d that the program or activity alleged to\nbe discriminating is not funded in whole or in part with revenue-sharing funds.\n97\n\n\x0cS ee State and Local Fiscal A ssistance Act of 1972, as amended, 31 U .S.C .\n\n\xc2\xa7 6716 (1982). That Congress made nondiscrimination requirements explicitly\napplicable to revenue sharing is not necessarily an indication that they would\notherw ise be inapplicable. S ee note 14, supra. Moreover, it is clear that Congress\nchose to require more stringent enforcem ent\xe2\x80\x94 and to make its nondiscrimination\nprovision applicable to all activities of a recipient government (except where\ncom pletely unrelated to federal funding)\xe2\x80\x94 because of the poor nondiscrimination\nenforcem ent record of the revenue sharing program to date. See H.R. Rep. No.\n1165, cited su pra note 14, at 13. Thus, even at the opposite end of the scale from\ntraditional categorical funding, when providing federal assistance virtually unre\xc2\xad\nstricted as to purpose or use, C ongress has made clear that the national policy\nagainst discrim ination applies.\nThe cross-cutting statutes apply by their terms to all programs or activities\n\xe2\x80\x9c receiving Federal financial assistance.\xe2\x80\x9d Absent evidence of congressional in\xc2\xad\ntent to the contrary, there is no indication apparent from the language of the block\ngrants that C ongress intended block grant funding to be other than \xe2\x80\x9c federal\nfinancial assistance\xe2\x80\x9d subject to the provisions of the nondiscrimination statutes.\nIn fact, the two relevant block grants specifically use the terms \xe2\x80\x9c financial\nassistance\xe2\x80\x9d or \xe2\x80\x9c Federal assistance.\xe2\x80\x9d S ee Elementary and Secondary Education\nBlock G rant, \xc2\xa7\xc2\xa7 552, 561; Social Services Block Grant, \xc2\xa7 2001. Furthermore,\napplication of the nondiscrimination statutes to the block grants is both consistent\nwith the congressional intent to have the nondiscrimination statutes apply to all\nfederal financial assistance, and consistent with the principle underlying passage\nof the cross-cutting statutes, that federal taxpayers should not be required to\nsubsidize program s or activities that discrim inate against some of them. Thus,\nabsent som e indication to the contrary in the language or legislative history of the\ntwo relevant block grants, the nondiscrimination statutes should be considered to\napply to the block grant programs or activities. We therefore proceed to consider\nw hether C ongress has evidenced an intent that the statutes not apply.\n\nIV. The Applicable Legal Standard\nThe Education and the Social Services Block Grants do not specifically exempt\nprogram s or activities funded by them from the obligations not to discriminate\nem bodied in Title VI, Title IX, Section 504, and the Age Discrimination Act.\nN evertheless, due to the importance of the question, it is appropriate to consider\nw hether there is any indication, in the statute or its legislative history, to suggest\nthat C ongress actually intended such a result. The courts generally require a clear\nindication of such intent, because Congress is presumed to be aware of the entire\nbody o f law, and thus to be aware of prior statutes when it enacts later ones.\nPresum ably C ongress would m ake express its intent to modify or preclude the\napplicability of a prior statute that would otherwise embrace the subject of the\nlater enactm ent. S ee 1A, C. Sands, Sutherland Statutory Construction, \xc2\xa7 23.10\n(3d ed. 1972). C ourts are reluctant, therefore, to find that Congress effected a\npartial \xe2\x80\x9c repeal\xe2\x80\x9d or \xe2\x80\x9c am endm ent\xe2\x80\x9d of a prior statute by implication. See note 20,\ninfra, and accom panying text.\n98\n\n\x0cThe classic \xe2\x80\x9c repeal by im plication\xe2\x80\x9d is a total abrogation of a previous statutory\nprovision by enactment of subsequent legislation. See, e .g ., M orton v. M ancari,\n417 U .S. 535 (1974) (rejecting contention that Equal Employment Opportunity\nAct impliedly repealed Indian preference provisions of Indian Reorganization\nAct); cf. U nited States v. U nited Continental Tuna C orp., 425 U.S. 164 (1976)\n(\xe2\x80\x9c repeal\xe2\x80\x9d urged would not actually abrogate prior statute, but would make it\nineffectual in nearly all cases). O ther implied changes, such as implied \xe2\x80\x9c exem p\xc2\xad\ntions,\xe2\x80\x9d see G oolsby v. Blumenthal, 581 F.2d455, 461 (5th Cir. 1978), re v\'d en\nbanc on other grounds, 590 F.2d 1369 (5th Cir.), cert, denied, 444 U.S. 970\n(1979), or implied \xe2\x80\x9c am endm ents,\xe2\x80\x9d see E ly v. Velde, 451 F.2d 1130, 1134 (4th\nCir. 1971), however, are also analyzed according to the rules applicable to repeals\nby implication.\nTwo recent Suprem e Court cases illustrate the rules of construction to be\napplied to questions such as the one presented by your memorandum. In A llen v.\nMcCurry, 449 U .S. 90 (1980), the Court considered whether 28 U .S.C . \xc2\xa7 1738\nand traditional principles of collateral estoppel apply to suits brought under 42\nU .S.C . \xc2\xa7 1983. M cCurry had unsuccessfully sought to suppress evidence in his\nstate criminal trial. H e ja te r brought a federal civil rights action under \xc2\xa7 1983\nagainst the police officers who had entered his home and seized evidence.\nM cCurry argued that he should not be bound by the state court\xe2\x80\x99s disposition o f his\nfederal constitutional claim because he had had no opportunity to litigate that\nclaim in federal court. Thus, he asserted in effect that \xc2\xa7 1738, which requires\nfederal courts to give the same effect to state court judgments as the state court\nwould, and traditional principles of collateral estoppel were inapplicable to his\nclaim brought under \xc2\xa7 1983. The Supreme Court analyzed this argument as one\nsuggesting that \xc2\xa7 1983 impliedly \xe2\x80\x9c repealed\xe2\x80\x9d or \xe2\x80\x9c restricted\xe2\x80\x9d both collateral\nestoppel principles and the statutory forerunner to \xc2\xa7 1738. The Court rejected\nthis argument, applying the maxim that repeals by implication are disfavored,\neven though \xe2\x80\x9c one strong m otive\xe2\x80\x9d behind enactment of \xc2\xa7 1983 was \xe2\x80\x9c grave\ncongressional concern that the state courts had been deficient in protecting\nfederal rights,\xe2\x80\x9d see id. at 9 8 -9 9 , a motive that provided some support for the\n\xe2\x80\x9c repeal\xe2\x80\x9d or \xe2\x80\x9crestriction\xe2\x80\x9d asserted by McCurry.\nSimilarly, in TVA v. H ill, 437 U .S. 153 (1978), the Court was asked to decide\nwhether the Endangered Species Act permitted an injunction against operation of\nthe nearly completed Tellico Dam because of the dam \xe2\x80\x99s effect on an endangered\nspecies. Congress had continued to appropriate money for the dam notwithstand\xc2\xad\ning the Appropriations C om m ittee\xe2\x80\x99s knowledge of the effect of the dam on the\nhabitat of the endangered species. Tennessee Valley Authority (TVA) argued,\ntherefore, that the subsequent appropriations constituted a congressional deter\xc2\xad\nmination to permit operation of the dam despite the provisions of the Act. The\nCourt, in an opinion by the Chief Justice, framed the issue in terms of \xe2\x80\x9cwhether\ncontinued congressional appropriations for the [Dam] after 1973 constituted an\nimplied repeal of the Endangered Species Act at least as to the pa rticu la r dam ."\nId. at 156 (emphasis added). The Court determined that to find an implied\n99\n\n\x0c\xe2\x80\x9crepeal\xe2\x80\x9d under the circumstances of the case would violate the cardinal rule\ndisfavoring such repeals.\nT 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 \xe2\x80\x9c re p e a l\xe2\x80\x9d o r\n\xe2\x80\x9cam endm ent\xe2\x80\x9d by implication analysis to the contention that Congress did not\nintend these four nondiscrimination statutes to apply to programs or activities\nfunded by the two block grants. Because the cross-cutting nondiscrimination\nstatutes apply by their terms to all program s or activities \xe2\x80\x9creceiving Federal\nfinancial assistance,\xe2\x80\x9d they apply to the block grants unless Congress specifically\nexem pted the block grants or, by im plication, \xe2\x80\x9camended\xe2\x80\x9d the cross-cutting\nprovisions to prevent their otherwise automatic applicability. See also, e .g ., Watt\nv. A laska, 451 U .S. 259 (1981) (contention that Wildlife Refuge Revenue\nSharing A ct, rather than earlier enacted M ineral Leasing Act, controls distribu\xc2\xad\ntion of m ineral revenues from wildlife refuges) (dissent contended that disfavor\nof repeals by implication should have force only when \xe2\x80\x9cgeneral statute, wholly\noccupying a field, eviscerates an earlier and m ore specific enactment of limited\ncoverage . . . w ithout an indication of congressional intent to do so ,\xe2\x80\x9d id. at 280);\nR adzanow er v. Touche Ross & C o ., 426 U.S. 148 (1976) (contention that when\nbank is sued under Securities Exchange Act it is subject to venue provisions of\nthat A ct, rather than to general venue provisions of previously enacted National\nBank Act); U n ited S tates v. B orden C o ., 308 U .S. 188 (1939) (contention that\nA griculture M arketing Agreement Act removed agricultural marketing from\npurview of Sherm an Antitrust Act).\nT he Fourth Circuit has applied this standard under analogous circumstances.\nE ly v. Velde, 451 F.2d 1130 (4th Cir. 1971), required the Fourth Circuit to\ndeterm ine the im plied applicability of two other \xe2\x80\x9ccross-cutting\xe2\x80\x9d laws\xe2\x80\x94 the N a\xc2\xad\ntional Historic Preservation Act (NHPA) and the National Environmental Policy\nAct (NEPA)\xe2\x80\x94 to a law enforcement block grant\xe2\x80\x94 the Omnibus Crime Control\nand Safe Streets A ct o f 1968. Because the Safe Streets Act generally prohibited\nfederal interference in the spending of grants except as expressly authorized, the\nLaw Enforcem ent Assistance Administration (LEAA) argued that it could not\napply the requirem ents of NHPA and NEPA. Id. at 1133. The court rejected the\nargum ent that the block grant and the cross-cutting laws were irreconcilable,\nhowever, applying the \xe2\x80\x9cstrong presum ption against one statute repealing or\nam ending another by im plication,\xe2\x80\x9d see id. at 1134, to examine the purposes and\npolicies of the allegedly conflicting statutes and give effect to all three. But cf.\nG o o lsb y v. B lum enthal, 581 F.2d 455, 464 (5th Cir. 1978) (Thomberry, J.,\ndissenting) (Revenue-Sharing and Uniform Relocation Assistance Acts irrecon\xc2\xad\ncilable; only acts specifically m entioned in Revenue-Sharing Act applicable)\n(distinguishing block grants from revenue sharing because revenue sharing\nprovides for automatic distribution and because of difficulty in determining how\nrevenue-sharing m oney is spent), opinion a d o p te d in relevant portion as opinion\nc f court, 590 F.2d 1369 (5th Cir.) (en banc), cert, denied, 444 U.S. 970 (1979).\nThese and other cases establish (1) that C ongress\xe2\x80\x99 intention to exempt the\nblock grants from the nondiscrimination statutes should be assessed in the\ncontext o f w hether Congress intended the block grants to act as an implied partial\n100\n\n\x0c\xe2\x80\x9crepeal\xe2\x80\x9d of, or \xe2\x80\x9cam endm ent\xe2\x80\x9d to, the earlier statutes; and (2) such \xe2\x80\x9crepeals\xe2\x80\x9d or\n\xe2\x80\x9camendm ents\xe2\x80\x9d by implication are not favored. See M orton v. M ancari, 417 U .S.\nat 549. In short, where possible, the earlier and later statutes will be read as\nconsistent with each other, see Watt v. A laska, 451 U.S. 259, 267 (1981) and,\nabsent a clear indication to the contrary, courts will presume that the later statute\nwas enacted against the background of the earlier one, and was intended to be\naffected by it. This analysis applies both to the total abrogation of a statute, see\nid . , and to partial repeals or amendments affecting only a \xe2\x80\x9ctiny fraction\xe2\x80\x9d of cases\nbrought under either the earlier or later statute, see Radzanower v. Touche Ross &\nC o ., 426 U .S. at 156.\nThe presumption against implied repeals is classically founded\nupon the doctrine that the legislature is presumed to envision the\nwhole body of the law when it enacts new legislation, and,\ntherefore, if a repeal of the prior law is intended, expressly to\ndesignate the offending provisions rather than to leave the repeal\nto arise by necessary implication from the later enactment. Still\nmore basic, however, is the assumption that existing statutory and\ncommon law, as well as ancient law, is representative of popular\nwill. As traditional and customary rules, the presumption is\nagainst their alteration or repeal. The presumption has been said\nto have special application to important public statutes of long\nstanding.20\n1A, C. Sands, Sutherland Statutory Construction \xc2\xa7 23.10 (4th ed. 1972) (foot\xc2\xad\nnotes omitted).\nThe presumption against implied repeals o r amendments is given effect\nthrough a requirem ent that the legislature\xe2\x80\x99s intention to repeal must be \xe2\x80\x9cclear and\nm anifest.\xe2\x80\x9d U nited S tates v. Borden C o., 308 U.S. 188, 198 (1939). \xe2\x80\x9cIn practical\nterms, this \xe2\x80\x98cardinal rule\xe2\x80\x99 means that \xe2\x80\x98[i]n the absence of some affirmative\nshowing of an intention to repeal, the only permissible justification for a repeal by\nimplication is when the earlier and later statutes are irreconcilable.\xe2\x80\x99 \xe2\x80\x9d TVA v. H ill,\n437 U .S. at 190 (quoting M orton v. M ancari, 417 U .S. at 550). The Supreme\nCourt has explained: \xe2\x80\x9cWe must read the statutes to give effect to each if we can do\nso while preserving their sense and purpose.\xe2\x80\x9d Watt v. Alaska, 451 U.S. 259, 267\n(1981). Thus, we must examine whether Congress intended the cross-cutting\nstatutes to be inapplicable to the Education and the Social Services Block Grants\nby first attempting to ascertain if Congress made a \xe2\x80\x9cclear and manifest\xe2\x80\x9d expres\xc2\xad\nsion of such intention, especially whether it made an affirmative expression of\n20 T he presum ption against im plied repeals and am endm ents, strongest w hen applied to longstanding im portant\npublic statutes, has force w hen m ore m inor statutes are involved Compare Radzanower, 426 U S at 154, w ith id at\n158, 164-65 (S tevens, J , dissenting) (arguing that the rule against im plied repeals should apply only to w ellestablished and clearly defined old rules reflecting im portant national policy, but not to m inor laws o f w hose\nexistence and m eaning C ongress m ight have been unaw are). T he nondiscrim ination statutes, w hile not all of\nlongstanding, clearly articulate im portant national policy M oreover, they are not the kind o f statutes o f w hich\nC 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\nseem to be particularly strong\n\n101\n\n\x0csuch intent. If it did not do so, we must then examine whether the Education and\nthe Social Services Block G rants and the four cross-cutting nondiscrimination\nstatutes are irreconcilable. In the absence of either a clear expression of intent or\nirreconcilability between the tw o sets of statutes, the plain language of the\nnondiscrim ination statutes, which would otherwise require them to apply to these\ntwo block grants, will prevail.\n\nV. Application of the Legal Standard\nT here are three possible indicators of congressional intent not to apply the\nnondiscrim ination statutes to the Education and Social Services Block Grants:\n(A) the absence of any specific reference to the obligation not to discriminate; (B)\nC ongress\xe2\x80\x99 failure to refer to the nondiscrimination provisions in these two block\ngrants, w hile specifically referring to them in six other block grants; and (C)\nCongress\xe2\x80\x99 apparent deletion o f nondiscrimination provisions from the Admin\xc2\xad\nistration\xe2\x80\x99s proposed block grant legislation. Because we conclude that none of\nthese provides a clear indication of congressional intent, we also examine (D)\nw hether C ongress\xe2\x80\x99 purposes in enacting these two block grants may be said to\nconflict with the nondiscrimination statutes, so as to require that the non\xc2\xad\ndiscrim ination statutes be inapplicable to these block grants.\nA . A bsen ce o f Specific Reference to the N ondiscrim ination Statutes\n\nIt is clear from their legislative histories that the nondiscrimination statutes\nwere intended to apply to federal financial assistance without Congress having to\nconsider their applicability every time it authorized such assistance. Further\xc2\xad\nm ore, the block grants at issue authorize the grant of \xe2\x80\x9cFederal assistance\xe2\x80\x9d or\n\xe2\x80\x9c financial assistance,\xe2\x80\x9d and the relevant federal agencies have generally applica\xc2\xad\nble regulations for enforcing the nondiscrimination statutes, which can be\napplied to the block grants without issuance of new regulations. See, e .g ., note 4,\nsu pra. T hus, there is no facially apparent reason why the nondiscrimination\nstatutes should be considered inapplicable to the Education and the Social\nServices Block G rants merely because Congress made no specific reference in\nthose block grants to the obligation not to discriminate. Since a central purpose of\nthe nondiscrim ination statutes was in fact to avoid the need for such specific\napplication, we conclude that the mere absence of nondiscrimination provisions,\nw ithout m ore, does not suggest that the four nondiscrimination statutes should be\nconsidered inapplicable.\nB . The "E xpressio U nius\xe2\x80\x9d D octrine\n\nAs an alternative indication o f congressional intent not to apply the non\xc2\xad\ndiscrim ination provisions, we have also considered the fact that not all the block\ngrants are m erely silent as to application of the nondiscrimination statutes. Six\nother HHS and Education block grants contain specific nondiscrimination provi\xc2\xad\nsions. Four\xe2\x80\x94 (1) Preventive Health and Health Services, (2) Alcohol and Drug\n102\n\n\x0cAbuse and Mental Health Services, (3) Primary Care, and (4) Maternal and Child\nHealth Services\xe2\x80\x94 specify in relevant part that, for purposes of applying Title VI,\nTitle IX, Section 504, and the Age Discrimination Act, \xe2\x80\x9cprograms and activities\nfunded in whole or in part with funds made available under this title are\nconsidered to be program s and activities receiving F ederal financial assistance."\nSee Reconciliation Act, \xc2\xa7\xc2\xa7 901 (1908(a)(1); 1918(a)(1); 1930(a)(1)), 2192(a)\n(508(a)(1)) (em phasis added). T hese four block grants do not stop th ere,\nhowever, but also prohibit discrimination on the ground of sex or religion, and\nprovide for a 60-day compliance period before resorting to enforcement under,\ninter alia, the cross-cutting statutes. Two other block grants\xe2\x80\x94 Community Serv\xc2\xad\nices, \xc2\xa7 671, and Low-Income Home Energy Assistance, \xc2\xa7 2601\xe2\x80\x94 prohibit dis\xc2\xad\ncrimination or exclusion from benefits on the basis of race, color, national origin,\nor sex, and further direct that \xe2\x80\x9c [a]ny prohibition against discrimination on the\nbasis of age under the Age Discrimination Act of 1975 or with respect to an\notherwise qualified handicapped individual as provided in section 504\xe2\x80\x9d shall\napply. See id ., \xc2\xa7\xc2\xa7 677, 2606. These two block grants also set forth procedures by\nwhich com pliance with their nondiscrimination provisions may be secured,\nincluding the 60-day compliance period before resorting to remedies under Title\nVI, Section 504, and the Age Discrimination Act, \xe2\x80\x9cas may be applicable.\xe2\x80\x9d\nApplying the maxim expressio unius est exclusio alterius, it could be argued\nthat because Congress specified in some block grants that the nondiscrimination\nlaws would apply, its failure to do so in others should be viewed as an intentional\nexclusion. See 2A , C. Sands, Sutherland Statutory Construction \xc2\xa7 47.23 (4th ed.\n1973). This reading o f an implied exclusion deserves particular attention, be\xc2\xad\ncause the maxim is considered to have special force if a statute provides for\nsomething in one section but omits it in another. See id.\nThere are, however, several reasons that might explain why Congress failed to\ninclude nondiscrimination provisions in the Education and the Social Services\nBlock Grants. First, as discussed in subsection C below, Congress may simply\nhave decided that existing laws against discrimination should apply without\nchange. It appears that there is some support for this explanation in the language\nof the nondiscrimination provisions originally proposed, both of which can be\ninterpreted as assum ing that existing law would apply, but attempting to add to or\nchange it in some manner. Furthermore, the nondiscrimination provisions in the\nother six block grants are not merely repetitive of existing law but have independ\xc2\xad\nent significance: (1) all six prohibit discrimination on the basis of sex, although\nTitle IX applies only to education programs; (2) four also prohibit discrimination\non the basis of religion; and (3) all require that the chief executive officer of a state\nbe given 60 days to secure compliance before the Secretary either refers the\nmatter to the Attorney General or exercises the powers granted by Title VI,\nSection 504, or the Age Discrimination Act, \xe2\x80\x9cas may be applicable,\xe2\x80\x9d or takes\n\xe2\x80\x9csuch other action as may be provided by law.\xe2\x80\x9d Because Congress was providing\nfor new substantive obligations and remedies regarding nondiscrimination in the\nother six block grants, it would have been logical for Congress to have recited all\nof the nondiscrimination provisions applicable to those block grants, perhaps to\n103\n\n\x0cavoid a future contention that only discrim ination on the basis of sex or religion\nhad been prohibited. By failing to include sim ilar provisions in the Education and\nthe Social Services Block G rants, however, Congress may simply have intended\nthat only existing nondiscrimination provisions, with their regular enforcement\nmechanism s\xe2\x80\x94 which apply to all programs or activities receiving federal finan\xc2\xad\ncial assistance\xe2\x80\x94 should apply.21\nSecond, there is also a reason why Congress might have believed it to be\nunnecessary to mention the nondiscrim ination statutes in the Education and the\nSocial Services Block Grants, but necessary to mention them in the other six\ngrants. The four cross-cutting statutes apply by their terms to programs or\nactivities receiving \xe2\x80\x9cFederal financial assistance.\xe2\x80\x9d Both the Education and the\nSocial Services Block Grants specify that they are providing \xe2\x80\x9cfederal\xe2\x80\x9d or \xe2\x80\x9cfinan\xc2\xad\ncial\xe2\x80\x9d assistance. The Elementary and Secondary Education Block Grant states in\nthe Declaration of Policy in C hapter I, \xc2\xa7 552, \xe2\x80\x9c [t]he Congress declares it to be the\npolicy o f the United States to continue to provide finan cial assistance to State and\nlocal educational ag en cies. . . , \xe2\x80\x9d and in the Statement of Purpose in Chapter II,\n\xc2\xa7 561, \xe2\x80\x9c [i]t is the further purpose and intent of Congress to finan cially a ssist state\nand local educational agencies . . . .\xe2\x80\x9d (Em phasis added.) The Social Services\nBlock G rant begins its statement of purpose with the following language: \xe2\x80\x9cFor\nthe purposes of consolidating F ederal assistan ce to States . . . .\xe2\x80\x9d \xc2\xa7 2001 (em\xc2\xad\nphasis added). In contrast, the four block grants that contain explicit statements\nthat \xe2\x80\x9c [f]or the purpose of applying the prohibitions against discrimination\xe2\x80\x9d under\nthe four cross-cutting statutes, program s funded by them \xe2\x80\x9care considered to be\nprogram s or activities receiving Federal financial assistance,\xe2\x80\x9d do not otherwise\nspecifically refer to federal financial assistance. It is possible therefore that\nCongress sim ply wished to m ake clear that, in addition to its prohibition of sexual\nand religious discrimination, those four block grants were \xe2\x80\x9cfederal financial\nassistance\xe2\x80\x9d for purposes of the four cross-cutting statutes. Similarly, the other\ntwo block grants containing nondiscrim ination provisions have no explicit refer\xc2\xad\nence to the fact that they authorize \xe2\x80\x9cfederal financial assistance.\xe2\x80\x9d Thus, the\nlanguage o f these block grants suggests another reason why Congress might have\ndifferentiated between the Education and the Social Services Block Grants on the\none hand and the six other block grants on the other.\nThe expressio unius maxim is not to be regarded as conclusive, especially\nwhen other factors suggest a different result. See M orris v. G ressette, 432 U .S.\n491, 506 n.22 (1977) (express preclusion of judicial review in one section is\nrelevant, but not decisive, as to reviewability in other sections).22 H ere, in\naddition to the existence of other explanations for the differences that initially\nappear to call for application o f the maxim, there are other factors at play. The\nblock grants are not merely separate sections of a comprehensive statute, but are\n21 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\nreference to the n ondiscrim ination provisions.\n22 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.\n1980) ( \xe2\x80\x9cT h e an c ien t m axim \xe2\x80\x98expressio unius est exclusio alterius\' is a d angerous road m ap w ith w hich to explore\nlegislative in te n t.\xe2\x80\x9d), cert, denied, 452 U.S 9 5 4 (1981), 2 A , S utherlan d , supra, \xc2\xa7 47 25 (\xe2\x80\x9cT he m axim . . . requires\ngreat caution in its a p p licatio n , and in all c a s e s is applicable only under certain conditions.").\n\n104\n\n\x0cin reality separate statutes relating to different substantive areas, pieced together\nfor purposes of budget reconciliation. This suggests that application of the\nmaxim, which assumes that Congress considered all possibilities together, has\nless force than it m ight in addressing a narrower statute. Cf. U nited S tates v.\nExxon Corp., 628 F.2d 70, 75 (D .C . Cir.) (per curiam ) (rejecting application of\nmaxim because, in ter alia, two titles at issue differ in structure and direction),\ncert, denied, 446 U .S . 964 (1980). Particularly in light of the length of the\nReconciliation Act, the speed with which it was enacted, and the pressing\ncircumstances that surrounded its enactment, as discussed earlier, it is uncertain\nthat the maxim should be given as much weight as it might normally have. The\npresumption against finding a repeal or amendment by implication also tends to\ndilute the force of the maxim. See U nited States v. Exxon C orp., 628 F.2d at 75\n(declining to read combination of legislative history and expressio unius theories\nas proof of repeal or am endm ent by implication).\nIn attempting to assess congressional intent, the expressio unius maxim may\nserve as a guide to that intent, but it is inconclusive. Other factors, including the\nreasons for the differences, the nature of the legislation, and the legislative\nhistory,23 must also be considered in the effort to discern congressional intent.\nWhen all the factors are considered, we cannot conclude that the absence of\nnondiscrimination provisions in the Education and the Social Services Block\nGrants represents a congressional determination that Title VI, Title IX, Section\n504, and the Age Discrimination Act not apply. Instead, Congress may merely\nhave determined that existing law against discrimination should apply to these\ntwo block grants. Moreover, to the extent the expressio unius maxim might be\nsaid to provide some support for a finding that Congress intended nonap\xc2\xad\n23 It is not just the statute that is silent on inclusion or exclusion of the provisions C om m ittee h earings, floor\ndebates, and the H ouse. S enate, and conference reports, w hich often discuss in som e detail the d iffering versions\nand congressional intent, are virtually silent on this significant issue In o u r review o f hundreds o f p ag es of\ntestim ony, debate, and rep o rts, we found only oblique references to nondiscrim ination under the tw o relevent block\ngrants\nDr. James P. S cam m an. S uperintendent o f Schools in South B end, Indiana, said:\nTo put it bluntly, if you are going to m ake a local decision m odel w ork, you are going to have to\nrescind 9 4 , 142, 50 4 , and at least unem ploym ent com pensation not to kick in until the fall term\nbegins w hen people a re n \'t assured of a jo b in the spnng.\nHearings Before the Task Force on Human Resources and Block Grants c f the Committee on the Budget. H ouse o f\nR 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\nfloor debate, as he explained his opposition to block grants in general, apparently even those specifically co ntaining\nnondiscrim ination provisions:\nLet m e illustrate a genuine fear that I have about these block grants. A ge discrim ination is an\ninsidious problem in this N atton and one of the areas where it is practiced the m ost are in federally\nfunded p rogram s. W hen the C ivil Rights Com m ission identified 10 m ajor Federal program s w here\nage discrim ination w as ram pant. C ongress responded with the enactm ent o f the age discn m in atio n\nam endm ents. W hat recourse will we have if age discnm ination is practiced in the adm inistration of\nthese grants on the State level?\n127 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\na single R epresentative am ount to an expression of congressional intent to support the inference to be draw n from\napplication of the expressio um us m axim T his is especially true here w here one reference (\xe2\x80\x9c9 4 , 142,504*\xe2\x80\x99) is, at the\nleast, obscure, and w here the other represents concern apparently unrelated to specific incorporation o f the\nnondiscrim ination provisions\nThere w ere, o f course, som e other references in the legislative history to the nondiscrim ination provisions\noriginally proposed by the A dm inistration T hese references were m inim al, however, and we do not believe that they\nsupport the theory that the laws prohibiting discrim ination were m eant to be inapplicable. See d iscu ssio n in\nsubsection C , infra.\n\n105\n\n\x0cplicability, we cannot say that it is either \xe2\x80\x9cclear and manifest\xe2\x80\x9d or that it is the\naffirmative expression of intent required for finding a \xe2\x80\x9crepeal\xe2\x80\x9d or \xe2\x80\x9camendment\xe2\x80\x9d\nby im plication.\nC . A pp a ren t D eletio n c f the N ondiscrim ination P rovisions\n\nThere is an additional factor to consider in assessing the absence of non\xc2\xad\ndiscrim ination provisions in these two block grants: Congress\xe2\x80\x99 apparent deletion\nof nondiscrim ination provisions from the block grants as originally proposed by\nthe Adm inistration. Based on o u r analysis of the legislative history of the block\ngrants, however, we are unable to conclude that Congress ever intentionally\n\xe2\x80\x9cdeleted\xe2\x80\x9d the nondiscrim ination provisions from the Administration\xe2\x80\x99s proposals\nso as to m ake them inapplicable.\n(1) Education Block Grant\nT he nondiscrim ination provision of the Administration\xe2\x80\x99s proposed Education\nB lock G rant provided:\nSec. 307(a). W henever the Secretary determines that there has\nbeen a failure to comply with title VI of the Civil Rights Act of\n1974, the Age Discrimination Act of 1975, section 504 of the\nRehabilitation Act of 1973, or title IX of the Education Amend\xc2\xad\nments of 1972 in any program or activity receiving Federal\nfinancial assistance under this Act, he shall notify the chief\nexecutive officer of the State and afford him an opportunity to\nsecure compliance. If within a reasonable period of time, not to\nexceed sixty days, the chief executive officer does not secure\ncom pliance, the Secretary shall take such action as may be\nprovided by law. The tim e afforded the chief executive officer\nunder this subsection shall not reduce the time otherwise available\nto the Secretary to secure compliance.\n(b)\nW hen a matter is referred to the Attorney General pursuant\nto subsection (a) of this section, or whenever he has reason to\nbelieve that there has occurred a pattern or practice in violation of\nthe civil rights provisions referred to in subsection (a) in any\nprogram or activity receiving Federal financial assistance under\nthis A ct, the Attorney G eneral may bring a civil action in any\nappropriate United States district court for such relief as may be\nappropriate including injunctive relief.\nProposed Elem entary and Secondary Education Consolidation Act of 1981, S.\n1103 \xc2\xa7 307a (127 C ong. Rec. S4332) (daily ed. May 4, 1981). The provision\nthus appears merely to have provided a method of enforcing the laws; it appears to\nhave assum ed their applicability to the Block Grant. The summary provided by\nSenator Hatch when he introduced the bill stated: \xe2\x80\x9cBasic nondiscrimination\nprovisions are p re se rv e d without change from current law. However, in case of\n106\n\n\x0cviolations, as determined by the Secretary, the Governor has an additional 60\ndays to secure compliance before further action by the Department." Id ., S4336\n(emphasis added). Thus, the omission of this provision, absent explanation, is\nequally consistent either with the possibility that Congress intended the non\xc2\xad\ndiscrimination provisions not to apply or that it assumed they did, based on the\nindication that basic law was being \xe2\x80\x9cpreserved without change,\xe2\x80\x9d and merely\ndecided that the regular enforcement procedures would apply.\nFurthermore, because the Education Block Grant eventually enacted was not\nthe one proposed by the Administration, it would be an overstatement to refer to\nthe lack of such a provision in that bill as the result of a \xe2\x80\x9cdeletion.\xe2\x80\x9d The Education\nBlock Grant proposed by the Administration was more sweeping than the bill\neventually enacted. There was extensive resistance to including some of the\nprograms the Administration proposed to include and the final product was\ntermed a more modest effort. See, e.g ., 127 Cong. Rec. S6821 (daily ed. June\n24, 1981) (rem arks of Senator Hatch, Chairman of Comm, on Labor and Human\nResources) (\xe2\x80\x9cO ur proposals are more modest than President Reagan\xe2\x80\x99s. Our block\ngrants do not compel the Nation to arrive at the new federalism on October 1. But\nthey most definitely set us along President Reagan\xe2\x80\x99s road.\xe2\x80\x9d). In the H ouse,\nRepresentative Ashbrook, the ranking minority m ember of the Education and\nLabor Com m ittee, tried to make clear that \xe2\x80\x9cGramm-Latta II,\xe2\x80\x9d the am endm ent to\nthe Committee reconciliation package approved by the House, was not authored\nby the Administration:\nAnd let me put to rest\xe2\x80\x94 at least for our committee\xe2\x80\x94 all this loose\ntalk about the proposals in the Latta amendment having been\nwritten by OMB or the W hite House. That just is not true. We did\ncooperate with them and accommodate their concerns where\npossible. But the substance of our major proposals, and the\nfigures we use, were fashioned by our staff acting on our instruc\xc2\xad\ntions. In most areas there are very great differences from adm in\xc2\xad\nistration proposals. This is particularly true with respect to educa\xc2\xad\ntion program consolidation, child nutrition, impact aid, and the\nsocial services block grant.\nId., H 3526-27 (daily ed. June 25, 1981). See also id., S6821 (daily ed. June 24,\n1981) (remarks of Sen. Hatch) (\xe2\x80\x9cSome have suggested that the President has\nsuffered a political defeat because we in the Senate have turned from his original\nblock grant proposals. They are wrong, and they miss the point. The essential\nquestion is not whether we support these proposals, but whether we support the\nPresident\xe2\x80\x99s ends. Obviously, we d o .\xe2\x80\x9d).\nThe legislative history of the Education Block Grant is at best ambiguous with\nrespect to w hether Congress \xe2\x80\x9cdeleted\xe2\x80\x9d references to the nondiscrimination provi\xc2\xad\nsions or m erely enacted a bill that, without explanation, contained none. The\nEducation Block Grant, which received extensive attention on the House and\nSenate floors, was explained and debated in detail, without reference to the\npossibility that Congress had made nondiscrimination provisions inapplicable.\n\n107\n\n\x0cGiven the tone of the discussion\xe2\x80\x94 an attempt to assuage concerns that not enough\nfederal control rem ained in the block grants\xe2\x80\x94 it is difficult to infer a clear intent\nto make the federal nondiscrimination provisions inapplicable. We are reluctant\nto attach much significance to congressional omission of any reference to the\nnondiscrim ination provisions w hen they would normally have been applicable\nwithout any such reference, especially in the absence of any reference to such\nomission.\n(2) Social Services Block G rant\nBecause the Social Services Block G rant received less attention in floor\ndebate, it is even m ore difficult to determine whether Congress could be said\nintentionally to have deleted the nondiscrimination provisions. It is clear that the\nAdm inistration\xe2\x80\x99s proposed block grant, which contained a nondiscrimination\nprovision, was not finally enacted by Congress. However, even the proposed\nHouse Social Services Block G rant contained a nondiscrimination provision,\nincluding enforcem ent procedures differing from those provided in the four\nnondiscrimination statutes. T he Senate version and the ultimate conference\nversion of the Social Services Block G rant, however, made no reference to\nnondiscrim ination. Although the absence of a provision in one of several versions\nmight be said to suggest an intentional deletion, this does not seem to have been\nthe case. First, the section-by-section analysis of the Administration\xe2\x80\x99s proposed\nSocial Services Block Grant, inserted into the Record by its sponsor, Representa\xc2\xad\ntive A shbrook, is instructive:\nSection 10 of the d raft bill, modeled on a section of [the]\nHousing and Com m unity Developm ent Act of 1974, prohibits\ndiscrim ination on the ground of race, color, national origin, or sex\nin any program o f activity funded under the Act, and also express\xc2\xad\nly recognizes the application of section 504 of the Rehabilitation\nA ct of 1973, which prohibits discrimination against qualified\nhandicapped persons, and the anti-discrimination provisions of\nthe Age Discrimination Act of 1975. W henever the Secretary\ndeterm ines that there has been a failure to comply with these non\xc2\xad\ndiscrim ination provisions, the Secretary must notify the Governor\no f the State. The Governor is given up to 60 days to secure\ncom pliance. If the Governor does not secure timely compliance,\nthe Secretary may refer the matter to the Attorney General and\nrecom m end the commencement of a civil action to secure com \xc2\xad\npliance. Alternatively, the Attorney General may institute pro\xc2\xad\nceedings under current statutes, such as title VI o f the Civil Rights\nAct c f 1964, that now apply to discrimination.\n127 Cong. Rec. E2194 (daily ed. M ay 6, 1981) (emphasis added). As understood\nby its sponsor, the nondiscrim ination provision did not \xe2\x80\x9cmake\xe2\x80\x9d Section 504 and\nthe A ge D iscrim in atio n Act a p p licab le, but rather \xe2\x80\x9crecognized\xe2\x80\x9d their a p \xc2\xad\n108\n\n\x0cplicability. The provision added sex discrimination as a general prohibition.\nFinally, Representative Ashbrook appeared to recognize that \xe2\x80\x9ccurrent statutes,\nsuch as title V I,\xe2\x80\x9d provided an alternative method of proceeding. Id. Thus, it is\nconceivable that \xe2\x80\x9cdeletion\xe2\x80\x9d of the provision was merely intended to leave current\nnondiscrimination law as the only method of proceeding.\nIt is unclear w hether Congress even thought in terms of \xe2\x80\x9cdeletion.\xe2\x80\x9d As\nexplained in the sum m ary of the reconciliation conference: \xe2\x80\x9cthe House receded\nfrom its Social Services block grant and conferees agreed to a Title XX block\ngrant and a com m unity services block grant. Child welfare services and Foster\nCare and Adoption Assistance were retained as categorical program s.\xe2\x80\x9d 127\nCong. Rec. H5759 (daily ed. July 31, 1981). The conference report referred to\nthe rejected House Social Services Block Grant as a \xe2\x80\x9cnew freestanding\xe2\x80\x9d block\ngrant repealing Title XX social services and training, the Child Abuse Preven\xc2\xad\ntion, Adoption Reform , and Runaway and Homeless Youth Acts, and seven titles\nof the Com m unity Services Act. See H .R. Conf. Rep. No. 208, 97th C ong., 1st\nSess. 989 (1981). The conference agreement, however, was to a more modest\nblock grant, am ending Title XX to form a new block grant, which \xe2\x80\x9cgenerally\nfollows the Senate am endm ent,\xe2\x80\x9d although not incorporating child welfare, foster\ncare, and adoption assistance programs. See id. at 991. In the conference report\xe2\x80\x99s\nrather detailed com parisons of the House and Senate versions, there is no\nreference to the absence of a nondiscrimination provision. Nor was there floor\ndebate over inclusion or deletion of such a provision. Thus, like the Education\nBlock G rant, it is unclear whether Congress intentionally deleted the non\xc2\xad\ndiscrimination provision or merely enacted a different block grant that contained\nno such provision. Because of the enactment of a substantially different block\ngrant from the one that contained a nondiscrimination provision, and in light of\nthe absence of any reference to a \xe2\x80\x9cdeletion\xe2\x80\x9d of the nondiscrimination provisions,\nand the presence of another plausible interpretation of any \xe2\x80\x9cdeletion,\xe2\x80\x9d it is at best\nuncertain whether Congress intentionally \xe2\x80\x9cdeleted\xe2\x80\x9d the nondiscrimination provi\xc2\xad\nsions to make them inapplicable. It is as appropriate to conclude merely that\nCongress enacted a block grant silent as to their applicability. Therefore, the\nabsence of the provisions from the final version, under these circum stances,\nprovides no more than highly equivocal support for finding an implied \xe2\x80\x9crepeal\xe2\x80\x9d\nor \xe2\x80\x9cam endm ent,\xe2\x80\x9d when much clearer support is required. See Allen v. McCurry,\n449 U .S. 90, 99 (1980).\n(3) Conclusion Regarding Intentional Deletion o f Nondiscrimination\nProvisions\nWe conclude, therefore, that Congress\xe2\x80\x99 intention to make the nondiscrim ina\xc2\xad\ntion statutes inapplicable is at best ambiguous insofar as the finding of such an\nintention relies on the apparent \xe2\x80\x9cdeletion\xe2\x80\x9d of nondiscrimination provisions from\nprior versions of these two block grants. There is no indication that Congress\ngave any thought to such a \xe2\x80\x9cdeletion,\xe2\x80\x9d and the absence of nondiscrimination\nprovisions is as consistent with a congressional determination to leave existing\n109\n\n\x0claw intact as it is with an intention to exempt the block grants from the four cross\xc2\xad\ncutting statutes.\nD . Conflict Between the Block Grants and the Nondiscrimination Statutes\nBecause there is no clear indication of congressional intent to make the\nnondiscrim ination statutes inapplicable to program s or activities funded by the\nEducation and the Social Services Block G rants, they should be considered to be\ninapplicable only if there is an irreconcilable conflict between the block grants\nand the nondiscrim ination statutes. Your m emorandum suggests an important\nground upon which the block grants and the nondiscrimination statutes may be in\nconflict: C ongress\xe2\x80\x99 intent in enacting block grants to free the states of \xe2\x80\x9cfederal\nencum brances and regulations other than those specifically imposed by the A ct.\xe2\x80\x9d\nTo apply the nondiscrimination provisions, it is suggested, would be directly\ncontrary to the intent.\nWe have found no meaningful evidence, however, that the nondiscrimination\nstatutes are the kinds of federal \xe2\x80\x9cinterference\xe2\x80\x9d with which Congress or the\nAdm inistration was concerned. To reduce bureaucratic overhead and permit the\nstates to set their own program priorities, the Education Block Grant expressed\nthe intent in C hapter 1 that th e design and implementation c f the programs\nauthorized under that Chapter be \xe2\x80\x9cmainly that of local educational agencies,\nschool superintendents and principals, and classroom teachers and supporting\npersonnel, because they have th e most direct contact with students and are most\ndirectly responsible to parents.\xe2\x80\x9d \xc2\xa7 561(b) (emphasis added). In Chapter 2,\nC ongress directed that the Secretary issue no regulations in most matters \xe2\x80\x9crelat\xc2\xad\ning to the details o f planning, developing, implementing, and evaluating pro\xc2\xad\ngram s and projects by state and local educational agencies.\xe2\x80\x9d \xc2\xa7 591 (b) (emphasis\nadded). The Social Services B lock Grant is intended to \xe2\x80\x9cincrease State flex\xc2\xad\nibility\xe2\x80\x9d in furnishing social services directed at five goals. \xc2\xa7 2352 (\xc2\xa7 2001).\nC ongress\xe2\x80\x99 focus therefore appears to have been on reducing \xe2\x80\x9cthose detailed\nrequirem ents and instructions on how to conduct program s,\xe2\x80\x9d see 127 Cong. Rec.\nH 5796 (daily ed. July 31, 1981) (remarks of Rep. Ashbrook) (emphasis added),\nwhich force the states to spend great amounts of time and energy on federally\nim posed program details. As Senator Hatch, a strong proponent of block grants,\nsaid, the objection to categorical programs is the involvement of the federal\nbureaucracy in their administration. See note 16, supra. Block grants are intend\xc2\xad\ned to effect a significant reduction in this involvement.\nT he nondiscrim ination statutes clearly im pose regulatory burdens on fund\nrecipients and decrease the \xe2\x80\x9cflexibility\xe2\x80\x9d of those recipients to the extent they\nwould choose to use federal funds in a m anner otherwise prohibited by the cross\xc2\xad\ncutting statutes; that is, by expending the money in ways that discriminate on the\nbasis o f race, sex, age, or handicap. We believe, however, that this apparent\nconflict does not actually make the cross-cutting statutes and the two block grants\nirreconcilable, particularly when every attem pt must be made to read the two sets\nof statutes in a way that permits each to be effective. See, e.g., Morton v.\n110\n\n\x0cMancari, 417 U .S. at 551. In applying NHPA and NEPA to a block grant, the\nFourth Circuit stated, \xe2\x80\x9c in the absence of unmistakable language to the contrary,\nwe should hesitate to read the congressional solution to one problem\xe2\x80\x94 protection\nof local police autonomy\xe2\x80\x94 so broadly as unnecessarily to undercut solutions\nadopted by Congress to preserve and protect other societal values, such as the\nnatural and cultural environm ent. It is not to be assumed lightly that Congress\nintended to cancel out two highly important statutes without a word to that\neffect.\xe2\x80\x9d Ely v. Velde, 451 F.2d 1130, 1136 (4th Cir. 1971).24 The same analysis\ncan be applied to this case. The congressional solution to the problem of excess\nfederal involvement in matters of program choice and administration need not be\nread so broadly as to encompass in the concept of \xe2\x80\x9cprogram administration\xe2\x80\x9d the\nfreedom to\' discrim inate on otherwise prohibited grounds or to operate programs\nfree from existing regulations regarding the nondiscrimination statutes. We\nbelieve, instead, that it is more likely that the lessened federal involvement\nanticipated by Congress was to be achieved by allowing state and local authorities\nto choose how best to use their allocations in programs or activities best suited to\nthe needs of their citizens.25\nThere are several indications that this interpretation is consistent with con\xc2\xad\ngressional intent. Clearly, the Administration believed that its block grants were\ncapable of coexisting with nondiscrimination provisions, because the Admin\xc2\xad\nistration\xe2\x80\x99s own proposals assumed applicability of the nondiscrimination stat\xc2\xad\nutes. There is no indication in the legislative history that Congress itself initiated\nany effort to eliminate or cut back on the operation o f the nondiscrimination\nstatutes with respect to block grants. In fact, the two block grants enacted are\ndescribed in the legislative debates as \xe2\x80\x9cmore modest\xe2\x80\x9d in terms of centralizing,\nconsolidating, and decreasing federal involvement than those proposed by the\nAdministration. In the numerous attempts to explain the advantages of block\ngrants as m inim izing federal interference and maximizing state flexibility, the\nnondiscrimination provisions were simply not at issue. Moreover, all the block\ngrants share these goals of increased efficiency, decreased regulation, and\nincreased local autonomy, including the six containing nondiscrimination provi\xc2\xad\nsions. It thus does not appear that application of the nondiscrimination provisions\nis inherently inconsistent with the block grant concept. It is difficult to conclude,\n24 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 \xe2\x80\x9c sim ple desire\nto give the states m ore latitude in the spending o f federal m oney," but also \xe2\x80\x9cto guard against any tendency tow ards\nfederalization o f local police an d law enforcem ent agencies " A pplication o f NHPA and NEPA d id not th reaten\nfederalization o f local police effo rts See 451 F 2 d at 1136 A lthough the question before the court in Ely is not\nidentical 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\nabout w ho decides how to spend federal money but also reflect concern that the federal governm ent not be involved\nin the details o f program administration, w hich are m ore appropriately left to local decisionm akers.\n25 This appears to be consistent w ith the P resident\xe2\x80\x99s understanding o f the value of block grants. See Interview w ith\nthe President, 17 W eekly C o m p Pres D oc. 1326-27 (D ec 7 , 1981)*\nNow, having been a G overnor, I can tell you w hat th e categorical grants do. They com e to you with\nFederal money, but w ith enorm ous am ounts of redtape and regulation prescribing exactly what the\npriorities are and how this money must be spent W ell, no one in W ashington can set rules o f that kind\nthat 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 \xe2\x80\x99t\nhave the sam e problem s or the W est S o , it m akes these program s needlessly extravagant.\n(E m phasis added )\n\nin\n\n\x0ctherefore, that Congress viewed the nondiscrimination statutes as inconsistent\nwith its purpose in enacting block grants.\nThe policy disfavoring \xe2\x80\x9crepeals\xe2\x80\x9d or \xe2\x80\x9cam endm ents\xe2\x80\x9d by implication is par\xc2\xad\nticularly applicable when the allegedly repealed provision is a longstanding,\nimportant com ponent of a governm ent program . See Morton v. Mancari, 417\nU .S. 535, 550 (1974). The cross-cutting statutes clearly represent important\nfederal nondiscrim ination policies of broad applicability. It is difficult, if not\nim possible, to believe that Congress would choose to alter such fundamental\npolicies without any discussion, and in the context of debates over the block\ngrants, which focused on different concerns unrelated to the policies embodied in\nthe nondiscrim ination laws. Because the policies inherent in the nondiscrim ina\xc2\xad\ntion statutes and the block grants may be reconciled without apparent serious\ndam age to either, as indicated by the fact that other block grants and the\nAdm inistration\xe2\x80\x99s own proposals specifically adopted nondiscrimination provi\xc2\xad\nsions\xe2\x80\x94 in fact, added to the categories of prohibited discrimination\xe2\x80\x94 the non\xc2\xad\ndiscrim ination statutes should be considered to apply to the block grants. See,\ne.g ., Morton v. Mancari, 417 U .S. 535; Ely v. Velde, 451 F.2d 1130.26\n\nVI. Conclusion\nThe circum stances surrounding enactm ent of the two block grants, as well as\nthe purposes for which they were enacted, do not reveal a congressional intention\n\xe2\x80\x99.o make the nondiscrim ination statutes inapplicable to the Education and the\nSocial Services Block Grants. The nondiscrim ination statutes were intended to\nbe statem ents of national policy applicable to all programs or activities receiving\nfederal financial assistance, freeing Congress from the need to give subsequent\nconsideration to their applicability on a program-by-program basis. Block grant\nfunding falls w ithin the literal term s of those statutes, and the nondiscrimination\nstatutes should therefore be applied to these two block grants unless Congress\nactually intended otherwise, or unless the block grants and the nondiscrimination\nstatutes cannot be reconciled so as to give effect to all. That Congress failed to\ninclude nondiscrimination provisions in the two block grants does not support a\nfinding of an intention to m ake Title VI, Title IX, Section 504, and the Age\nDiscrim ination Act inapplicable: The nondiscrimination statutes do not require\nspecific reference in funding legislation; Congress may have included non\xc2\xad\ndiscrim ination provisions in other block grants to effect changes in existing\ndiscrim ination law; and Congress\xe2\x80\x99 failure to include nondiscrimination provi\xc2\xad\nsions in the two block grants can be interpreted as an expression of intent to have\n*ISWe believe that this conclusion is not in consistent w ith Pennhurst State School & Hospital v Halderman, 451\nU S . I (1981). in w hich the C o u rt stated that \xe2\x80\x9c C ongress m ust express clearly its intent to im pose conditions on the\ngrant 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.\xe2\x80\x9d Id. at 24 In the\nfour cro ss-cu ttin g nondiscrim ination statutes them selves. C ongress had clearly expressed its intent that they apply\ngenerally to all p rogram s o r activities rece iv in g federal financial assistance. See 1 10 C ong. Rec. 7063 (1964)\n(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 \xe2\x80\x99 \xe2\x80\x9c N o one is\nrequired to accept F ederal assistance or F ederal funds If anyone does so voluntarily, he m ust tak e it on the\ncon d itio n s on w hich it is offered ").\n/\n\n112\n\n\x0cexisting law apply. Finally, the block grants and the nondiscrimination statutes\nare not so irreconcilable that both cannot be given effect.\nIn light of the fundamental expression of congressional intent underlying the\nnondiscrimination statutes, it should be presumed that Congress would have\ndebated or made specific its intent to change their applicability. As long as it did\nnot do so, and in light of the several possible reasons for its failure to include\nindependent nondiscrimination provisions, we conclude that the nondiscrim ina\xc2\xad\ntion provisions of Title VI, Title IX, Section 504, and the Age Discrimination Act\napply to the Education and the Social Services Block Grants.\nT h e o d o r e B. O l s o n\nAssistant Attorney General\nOffice c f Legal Counsel\n\n113\n\n\x0c'