The opinion of the court was delivered by: GESELL
This is a suit challenging regulations promulgated by the Secretary of Education to implement Title IV of the Higher Education Act of 1965, 20 U.S.C. § 1070 et seq., and § 1113 of the Department of Defense Authorization Act, 1983 (Defense Act), 50 U.S.C. app. § 462(f) (1982). Plaintiffs are three female students who have been denied federal financial assistance because of their refusal on grounds of conscience to sign a form mandated by the regulations. They argue that the regulations are not authorized by the statutes cited above, are arbitrary and capricious, and violate plaintiffs' rights under the Free Speech Clause of the First Amendment and the Equal Protection Clause of the Fifth Amendment.
The matter is before the Court after full hearing on plaintiffs' motion for a preliminary injunction, with the Court reserving the right to consolidate the hearing with a final hearing on the merits pursuant to Fed. R. Civ. P. 65(a)(2). Briefs, affidavits, exhibits and testimony have been considered and, the Court having determined that consolidation is appropriate, the matter is now ripe for final resolution. The following constitute the Court's findings of fact and conclusions of law.
Section 1113 of the Defense Act states that any person who is required to register with Selective Service but has failed to do so is ineligible for federal financial assistance. It provides:
In order to receive any grant, loan, or work assistance under title IV of the Higher Education Act of 1965 (20 U.S.C. 1070 et seq.), a person who is required under section 3 to present himself for and submit to registration under such section shall file with the institution of higher education which the person intends to attend, or is attending, a statement of compliance with section 3 and regulations issued thereunder.
50 U.S.C. app. § 462(f)(2). The Secretary is directed to promulgate regulations to implement the requirements of this subsection. 50 U.S.C. app. § 462(f)(4).
On April 11, 1983, the Secretary issued regulations implementing the Defense Act which included a "model statement of educational purpose and registration compliance." 48 Fed. Reg. 15,578. The registration compliance statement requires students to certify either that they are registered with the Selective Service or are not required to be registered because (1) they are female; (2) they are in the armed forces on active duty; (3) they have not reached their 18th birthday; (4) they were born before 1960; or (5) they are a permanent resident of the Trust Territory of the Pacific Islands or the Northern Mariana Islands. The student is to indicate into which category he or she falls. The schools which plaintiffs attend have adopted forms essentially identical to the model form and plaintiffs, having refused to sign such forms, have been denied financial aid from those schools as a result.
Despite plaintiffs' protestations to the contrary, the regulations at issue were clearly authorized by the relevant enabling legislation. The Secretary was directed to promulgate regulations to carry out the purposes of the Defense Act. 50 U.S.C. app. § 462(f)(4). The regulations were developed following full notice and comment, and at least some of the concerns raised by the plaintiffs were specifically addressed by the Secretary.
A practical problem in implementing the Statement of Registration Compliance requirement is the difficulty in identifying which students are required to be registered, especially since some institutions may not have a record of the student's gender or date of birth. Therefore, to minimize the burden on the institution of determining whether a student is required to be registered or is exempt from registration for any of a number of reasons, the Secretary is requiring all title IV aid recipients to complete and submit to the institution the Statement of Registration and Compliance . . . .
Comment: Several commenters suggested that only males should be required to sign the required Statement of Registration Compliance. Further, some of them asked if a waiver might not be granted for schools which enroll female students exclusively.
Response: No change has been made. Often, it is not clear from a student's name whether the student is female. Moreover, since students are often paid by credit adjustments to their accounts, there may be no easy way -- other than the student's signed statement that she is female -- to assure that registration was not applicable. Further, the signing of the Statement of Educational Purpose (which is now part of the combined "Statement of Educational Purpose/Registration Compliance["]) must be done by female as well as male ...