In March of 1988, the United States Congress overrode a presidential veto of a piece of legislation by a vote of 365 to 157, thus precipitating the greatest single extension of federal power in this century. No doubt, most Americans are unaware that such an event took place. Few have ever heard of the Civil Rights Restoration Act, but sooner or later they will, because it will dramatically affect their lives in the years to come.
What the passage of this act betrays is how far we have strayed from our understanding of constitutional government and our historical commitment to individual liberty. What does it do? It guarantees that where government money goes, government control surely follows. And as storytellers were once wont to say, thereby hangs a tale.
At Hillsdale College, a small school in rural Michigan, the tale begins in 1844, when a group of local church congregations founded a liberal arts college, independent of any church sanction, setting up its operations in a rented storefront. The first handful of students included a woman who was the first in Michigan to be admitted to college on par with men in a degree program, and the future founder of a major black university.
But from the outset, the founders of the College shared a grand vision. They declared that Hillsdale College was an independent, nonsectarian institution of higher learning founded by men and women “grateful to God for the inestimable blessings” resulting from civil and religious liberty and “believing that the diffusion of learning is essential to the perpetuity of these blessings.” It further stated that the College’s objective was “to furnish all persons who wish, irrespective of nation, color, sex, a literary and scientific education” outstanding among American colleges and to combine with this “such moral and social instruction as will best develop the minds and improve the hearts of its pupils.”
Today, the mission statement also adds: “the College considers itself a trustee of modern man’s intellectual and spiritual inheritance from the Judeo-Christian tradition and Greco-Roman culture, a heritage finding its clearest expression in the American experiment of self-government under law.
“By training the young in the liberal arts, Hillsdale College prepares students to become leaders worthy of that legacy. By encouraging the scholarship of its faculty, it contributes to the preservation of that legacy for future generations. By publicly defending that legacy, it enlists the aid of other friends of free civilization and thus secures the conditions of its own survival and independence.”
Nearly 150 years after the founding of Hillsdale College, its mission is still clear, the resolve still firm, Hillsdale College offers its 1100-1200 students a traditional liberal arts education, including Greek, Latin and Christian Studies. It maintains single-sex dormitories, an honor code, and a campus-wide social policy regarding good conduct. And it still doesn’t keep records of its students’ and staff members’ race, religion or ethnic background, or use such criteria to determine how they ought to be treated. Above all, it is distinguished from most other schools by the fact that it has never in its century-and-a-half of existence accepted federal funds. Today, three out of every four dollars in need-based tuition aid to public and private education comes from the federal government—but not at Hillsdale.
In the summer of 1975, all colleges and universities received a bulletin from the (then) Department of Health, Education and Welfare declaring that under pending affirmative action legislation (which subsequently became law) they would be required to sign a statement attesting that they were in compliance with a variety of government regulations regarding discrimination. Signing meant that these same schools would thereafter be compelled to report detailed information about the race, gender and ethnic origin of all students and employees. Hiring and admission practices as well as a multitude of other procedures were to be hereafter scrutinized. Watchdog affirmative action programs were to be installed, at each school’s expense, on many campuses to ensure that government racial and sexual quotas were being enforced.
Significantly, under Title IX legislation, the definition of a “recipient institution” was revised. Under the old definition, a school which received direct federal subsidies was subject to federal control. Now, under the new definition, a school which merely accepted students who had federal grants or loans was to be classified as a recipient institution, forcing it to accept the same control as directly subsidized schools. This is much like telling a mom-and-pop grocery store that accepting customers’ food stamps makes the store a ward of the federal government.
A handful of schools didn’t return their compliance forms, hoping they would be lost in the leviathan’s computer. But, in the fall of 1975, the trustees of Hillsdale College decided that Title IX was such a serious assault on the school’s freedom that we simply could not accept it. We sent a letter to HEW telling its officers so. We were the only school in the United States, large or small, that notified the federal government that we had no intention of signing away our rights, and that we were prepared to make a legal issue of the matter.
For five years, Hillsdale stood alone, insisting that the federal government had overstepped its authority. Our stubbornness attracted wide notice; Hillsdale became a powerful symbol to a very substantial national audience. People often referred to Hillsdale as David struggling against Goliath. Readership for the College’s monthly publication, Imprimis, grew from 1,000 in 1971 to 50,000, and then 100,000 names. (It is now fast approaching the 200,000 mark.) People from all walks of life let us know that they were glad someone was refusing to bend to federal pressure and was willing to take a firm stand in opposition to government intrusion.
Just as Hillsdale has symbolized independence to people nationwide, the school has meant something quite different to the federal government: A very large pain in the neck. In other words, an institution unwilling to compromise it principles, untempted by the lure of federal dollars, preferring freedom of choice and self-reliance to dependence on government. But eventually they had to face us in the courtroom.
Between 1975 and 1980, we developed our legal case. We hired attorneys and spent about half a million dollars on legal expenses. We endured a series of hearings, and then a series of trials. And then, suddenly, one of the schools who had been “hiding in the computer” popped up. Pennsylvania’s Grove City College was challenged by HEW. The school’s directors came to us for help, and we put our own resources at their disposal, including the details of the constitutional case which we had painstakingly built in the previous five years.
So the two cases—Grove City’s and Hillsdale’s—made it to the Circuit Court of Appeals, theirs in the Second Circuit and ours in the Sixth. One step short of the Supreme Court, Hillsdale won its case by a 2-1 split decision. Grove City fared less well. The school lost on the appeals level and its case was taken to the Supreme Court. The brief presented in the case which became known around the world as Grove City v. Bell, although not attributed as such, was Hillsdale’s.
In February of 1984, the justices rendered a decision. Their first conclusion was that if an individual college or university department was found to be engaging in discriminatory practices, only that department, not the whole institution, could be penalized. This “program-specific” portion of the decision was hailed as a victory. However, the justices went on to uphold HEW’s definition of a recipient institution. A single Pell grant or National Direct Student Loan spent on our campus, for example, makes Hillsdale College a recipient institution exposed to unlimited federal interference. Today, even the G.I. Bill isn’t exempt; veterans have no right to attend a school of their own choosing without jeopardizing that same school’s independence.
Once again, Hillsdale responded. We notified the federal government that the College would no longer accept students with federal grants and loans. Instead, we would offer candidates who qualified for admission private sources of financial aid.
The issue was not just shielding ourselves, but protecting our students. In the first year, this resolve cost about $250,000; today the figure is nearly $600,000, which we must raise in addition to all our other scholarship and aid obligations.
Why has the expense skyrocketed? You often hear college and university presidents complaining that the Reagan administration has gutted higher education, but that is pure nonsense. Federal aid to education has increased 70 percent in the last several years. And a school like Hillsdale which refuses to sup at the federal trough is forced to compete in a market in which the odds are against us.
I’ll repeat an earlier statistic: three out of every four dollars in need-based tuition aid to education comes from the federal government. If that doesn’t take your breath away, it ought to. Thirty years ago, when federal aid to education was being debated for the first time, the big argument was over whether federal funding would result in federal control. “Of course not!” was the assurance we received from many of our political leaders. “Why in the world would the federal government want to meddle with academic freedom? All we want to do is lend a hand to education.
Disingenuous or not, the assurances proved false. During Hillsdale’s ten years in the courts, the bureaucracy proved time and time again that what it was interested in was power, plain and simple. Never once was the allegation raised that Hillsdale discriminated—we were in the anti discrimination business over a century before the government ever found out there was a problem—yet we were hauled into court, just the same. Looking at the hundreds of federally-imposed restrictions on school hiring, tenure and admissions policies can anyone doubt that the real issue is government control?
The 1984 Supreme Court decision was far from the end of the story. The liberal faction in Congress was determined to apply it to every business and organization in the United States. Democratic Senator Ted Kennedy teamed up with liberal Republican Senator Lowell Weicker to concoct the Civil Rights Restoration Act. They offered it in session after session of Congress. Lots of people, including me, testified against it. The third time around, however, they triumphed resoundingly over a presidential veto. As I have said, the Civil Rights Restoration Act represents the greatest single extension of federal authority in our lifetime, perhaps in our history. It stipulates that federal aid in any form, touching an organization in any way, makes it—lock, stock and barrel—subject to federal control. Churches, hospitals, family businesses—none are exempt from its sweeping provisions.
How could such a law sail through Congress? Well, it had a great title, for starters. The words “civil rights” bestow magical protection these days. Few politicians have the courage to go on record as voting against any bill related to civil rights, even if it may actually encourage unequal treatment before the law or other abuses of individual rights. This lack of courage is aggravated by the fact that business as usual in the House and Senate means routinely passing 1,000-page, pork-laden bills which no member fully supports, much less reads in their entirety. They couldn’t if they wanted to; this is legislation by the pound and the weight of it is crushing the American people.
With the Civil Rights Restoration Act, we have been sold a bill of goods wrapped in a tissue of deception. Where once the blindfolded goddess of justice was supposed to view all who came before her with impartiality, this new law compels her to peek: “Tell me your race, your creed, your sex, and then I will tell you how I will treat you. That isn’t justice; it is racism, it is sexism. It will also force the kind of “equality of result” rather than “equality of opportunity” tests that have done so much to harm American higher education upon society.
The financial and administrative cost of doing business and delivering services will rise tremendously. In the end, the burden, the penalties and the inconvenience will rest most heavily on the individual citizens who depend on low-cost and rapid service for their needs. More often than not, they are the members of racial minorities, the handicapped, the elderly, the poor—the very persons the Civil Rights Restoration Act purports to protect.
And for what? To ensure that no one is discriminated against, that no one is treated unfairly. The goal is a noble one, but there are already ample statutes, enforcement powers and court rulings to see the goal progressively better realized. There comes a point at which granting ever broader enforcement powers to government and imposing even more stringent reporting and compliance requirements on our public and private institutions becomes counterproductive.
That point has been reached now as the Civil Rights Restoration Act tries to, in the words of one observer, “kick down a door that is already open.” It harms those who are passing through the open door of equal opportunity in our society and those already working in good faith to hold the door open.
The prospect of this kind of federal intervention is frightening, but it is not without precedent. We have been allowing the government more and more control over our public and private lives for years. Nowhere is this clearer than in education. What originated as local schooling supported by immediate communities (and was therefore somewhat responsive to local and parental wishes) has inexorably moved toward bureaucratic binges and isolation.
Hillsdale College will survive. We will continue to pay the price of protecting our independence. Moreover, we have proved that you don’t need government money in order to become an American success story. The next battle may come over tax exemption; after all, the IRS has already declared that it regards tax exemption as a subsidy rather than as a recognition of independent status. That we will be challenged again is certain, for our very existence is a rebuke and a threat to the bureaucrats who desire complete control. But Hillsdale’s future is not the only thing at stake: the real issue is whether society can survive without the freedom which this little school so ardently champions.
