Applicability of Control of Paperwork Amendments of 1978 to Certain Activities of the Civil Rights Division ( 1980 )

Applicability of Control of Paperwork Amendments of 1978 to
Certain Activities of the Civil Rights Division
C ontrol o f Paperw ork A m endm ents o f 1978, w hich impose restrictions on federal agen­
cies’ collection o f data from educational institutions, do not apply to collection o f data
by the D epartm ent o f Justice in connection with school desegregation litigation.
February 6, 1980
M EM ORANDUM OPIN IO N FOR TH E ASSISTANT ATTORNEY
G EN ER A L, CIV IL RIGHTS DIVISION
This responds to your request for an opinion on the applicability of
the Control of Paperwork Amendments of 1978, 20 U.S.C. § 1221-3(Amendments), to your Division’s collection of information from edu­
cational institutions in connection with the litigation of school desegre­
gation cases. More specifically, you ask whether your division’s litiga­
tion of school desegregation cases is a “federal education program”
under the Amendments. You identified the following three categories
of information-collecting activities conducted by your Division in con­
nection with such cases:
(1) Formal discovery requests in active school desegregation
cases;
(2) Collection of information from defendants in inactive school
desegregation cases to determine whether the cases should
be dismissed; and
(3) Collection of information from educational institutions for
the purpose of determining whether litigation should be
initiated.
Because your Division conducts all of the above activities in connec­
tion with your litigating responsibilities and compliance with the
Amendments’ restrictions would interfere with the enforcement of fed­
eral antidiscrimination statutes, we conclude that the Amendments do
not apply to such activities. For that reason, any regulations promul­
gated to implement the Amendments similarly would not apply to those
activities.
The Control of Paperwork Amendments of 1978 were enacted to
coordinate the collection of data from educational institutions by fed­
eral agencies “[i]n order to eliminate excessive detail and unnecessary
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and redundant information requests and to achieve the collection of
information in the most efficient and effective possible manner. . .
20 U.S.C. § 1221-3(a)(1)(A). Under the statute, the Secretary of Educa­
tion 1 must approve requests by federal agencies for data and informa­
tion directed to educational institutions. Each agency is required to
submit to the Secretary a plan for each collection of information indi­
cating how the information will be used, the methods of analysis that
will be applied to such data, a timetable for the dissemination of the
collected data and an estimate of the costs and man-hours that will be
incurred by each educational institution in completing the request and
by the federal agency in collecting, processing, and analyzing the infor­
mation. 20 U.S.C. § 1221—3(b)(1). The Secretary is required to ensure
that each request has been approved and publicly announced by the
15th of February preceding the beginning of a new school year, unless
there is an urgent need for the information or very unusual circum­
stances. 20 U.S.C. § 1221-3(b)(2)(A). Prior to approval, each educa­
tional agency subject to a request is afforded a 30-day period to com­
ment to the Secretary on the information request. 20 U.S.C. § 1221 —
3(b)(3).
The Amendments set forth two conditions for its applicability to
information requests by federal agencies:
(1) The respondents must be primarily educational agencies or
institutions; and
(2) The purpose of a federal agency’s activities must be to
obtain information needed for the management of, or the
formulation of,.policy related to federal education programs
or research or evaluation studies related to the implementa­
tion of federal education programs. 20 U.S.C. § 1221 —
3(a)(1)(A).
Because your information-collection activities are directed at educa­
tional institutions, the first condition is satisfied and the applicability of
the Amendments depends, therefore, upon whether your activities meet
the second condition. For two reasons, we conclude that they do not.
First, the information you collect is needed to decide whether to
initiate, maintain, or discontinue litigation, not to manage or formulate
policy or to conduct research or evaluation studies. Moreover, even if a
decision to initiate or discontinue litigation could be viewed as formu­
lating policy, we believe that your litigating activities are not “federal
education programs” for the purpose of the Amendments. It is true that
a construction of the Amendments must be guided by the Conference
Report’s direction that they are “to be interpreted broadly so as to
1 T he A ct originally required the Secretary o f H ealth, Education and W elfare to approve such
requests. H ow ever, under the D epartm ent o f E ducation O rganization A ct, Pub. L. No. 96-88,
§ 301(a)(2)(D), 93 Stat. 677 (1979), this function was transferred to the Secretary o f Education.
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include as many activities as possible.” H.R. Rep. No. 1753, 95th Cong.,
2d Sess., 313 (1978). But a construction that would include school
desegregation litigation as a “federal education program” would strain
the meaning of that term far beyond common understanding of what
constitutes an education program. Nothing in the legislative history of
the Amendments warrants such a construction. Moreover, the Amend­
ments explicitly provide:
Nothing in this section [20 U.S.C. § 1221-3] shall be con-
. strued to interfere with the enforcement of the provisions
of the Civil Rights Act of 1964 or any other nondiscrim­
ination provision of Federal law.
20 U.S.C. § 1221—3(b)(6). In our view, this provision 2 militates against
regarding your litigating activities as education programs. If the
Amendments were construed to cover such activities, your Division
would have to comply with their restrictions on information requests
each time you requested information from each school defendant or
target of investigation. Compliance with the Amendments’ comment
period and public announcement requirement when litigating a case or
deciding to institute or discontinue litigation would undoubtedly sub­
stantially interfere with the expeditious enforcement of federal nondis­
crimination laws.
For these reasons we conclude that the term “federal education
program” is not to be construed to encompass the information collec­
tion activities involved here. Accordingly, the definition of “federal
education program” in the interim procedures 3 promulgated by the
Department of Health, Education, and Welfare under the Act is not to
be construed to encompass such activities.
L eon U lm an
Deputy Assistant Attorney General
Office o f Legal Counsel
2 T h e legislative history o f the A m endm ents contains no discussion o f this provision, w hich was
included in both the H ouse and Senate bills. H .R . Rep. No. 1137, 95th C ong., 2d Sess. 134-38, 177
(1978); S. Rep. N o. 856, 95th C ong., 2d Sess. 5, 112-16, 158-59 (1978); H. Conf. Rep. No. 1753, 95th
C ong., 2d Sess. 313-15 (1978). T h e provision appears to have its origin in the E ducation A m endm ents
o f 1976, §4 0 6 , 90 Stat. 2231, w h ich restricted only the E ducation D ivision and the O ffice o f Civil
R ights in the D epartm ent o f H ealth, E ducation and W elfare in their collection o f inform ation. T he
restrictions along w ith th e proviso w ere added on the floor o f the Senate, 122 C ong. Rec. 28017-
28020 (1976), and survived the C onference. H. Conf. Rep. No. 1701, 94th C ong., 2d Sess. 242 (1976).
3 T h e interim p ro ced u res define “ Federal E ducation P ro g ram ’* as “ any Federal activity w ith a
prim ary purpose o f offering instruction, financing instruction, o r affecting an educational agency's or
institution’s ability to offer instruction o r provide access to e d ucation.” 44 Fed. R eg. 46535, 46538
(1979).
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