This case was brought in the district court by three registration-exempt Boston University theological students who were refused federal financial assistance after they declined to answer questions as to their draft registration status on an aid application form that was prescribed by the United States Department of Education ("DOE"). Concluding that Congress had not authorized DOE to condition registration-exempt students' receipt of aid on their completion of these forms, the district court enjoined the denial of aid to the three students. Defendants have appealed, and the three plaintiffs have cross-appealed both from the court's refusal to certify a class and its limitation of injunctive relief to themselves only.

At issue is whether the district court erred in ruling that the regulations adopted by DOE, which require all aid applicants to file a statement indicating either that they have registered for the draft or are exempt, and which deny aid to those who do not comply, exceeds the statutory authority granted to DOE by the Solomon Amendment ("the Amendment"). Plaintiffs are all exempt from draft registration, either on account of gender or age, but object because of religious scruples to filling out and filing a form of this sort, regarding such acts as cooperation with a program of military conscription.

An explanation of the statutory and regulatory context will assist in understanding this controversy. The Solomon Amendment to the Military Selective Service Act, 50 U.S.C.App. Sec. 462(f),1 provides that students who are required to register with the Selective Service and fail to do so are ineligible for federal student aid under Title IV of the Higher Education Act of 1965, 20 U.S.C. Sec. 1070 et seq. 50 U.S.C.App. Sec. 462(f)(1). The Solomon Amendment further provides that persons required to register must file with their schools a "statement of compliance" with registration requirements in order to receive aid. Id. Sec. 462(f)(2).

The Secretary of Education, in accordance with the Amendment's directive to "issue regulations to implement the requirements of this subsection," id. Sec. 462(f)(4), promulgated regulations2 requiring every aid applicant (with minor, immaterial exceptions) to file a "Statement of Registration Compliance" ("the Statement") certifying "either that he or she is registered with Selective Service or that, for a specified reason, he or she is not required to be registered." 34 C.F.R. Sec. 668.24(a)(2). If a student does not file the Statement, the school "may not" provide any otherwise available aid to that student. Id. Sec. 668.24(a)(1). The regulations also contain a model "Statement of Educational Purpose/Registration Compliance,"3 which the Secretary regards "as satisfying the requirements of ... Sec. 668.24(a),"4 34 C.F.R. Sec. 668.25, and which Boston University required all financial aid applicants to complete.

Two of the three plaintiffs are exempt from the requirements of military draft registration because they are women, and one is exempt because of his age. All three need federal financial aid, available under Title IV, to complete their training at the Boston University School of Theology as ministers in the United Methodist Church, but all three balked at submitting the "Statement of Educational Purpose/Registration Compliance" in order to secure the needed aid. They claimed that their religious beliefs prevented them from cooperating in any fashion with a system of military conscription.5 One student submitted the Statement, under protest, while the other two refused to fill out the Statement and were, as a result, denied federal student aid.

After some preliminary skirmishing with Boston University, the students filed a complaint containing the issue presently before us in the United States District Court for the District of Massachusetts on January 18, 1984. They sought declaratory and injunctive relief and damages against the Trustees of Boston University, Dr. John R. Silber, individually and as President of Boston University, the Selective Service System and its Director, Major General Thomas K. Turnage, and the Department of Education and its Secretary, Terrel H. Bell. The complaint alleged three counts: (I) the DOE regulations, and Boston University's implementation of those regulations as an agent of the federal defendants, violated the plaintiffs' free exercise rights; (II) Silber's and Boston University's policy violated the plaintiffs' religious freedom rights under state constitutional and statutory law, and violated the Boston University Charter; and (III) the DOE regulations are inconsistent with and beyond the authority conferred by the Solomon Amendment because the regulations require persons who are not required to register to submit a Statement of Registration Compliance and deny Title IV aid to persons not subject to any registration requirement. Plaintiffs had also filed a motion for a preliminary injunction to restrain Boston University and the federal defendants from enforcing the DOE regulations.

On April 11, 1984, the court granted plaintiffs' motion for a preliminary injunction. The court ruled that the regulations were not "reasonably related to the enabling legislation," Mourning v. Family Publications Service, Inc., 411 U.S. 356, 369, 93 S.Ct. 1652, 1661, 36 L.Ed.2d 318 (1973), because the regulations imposed the "sanction" of denial of aid on a "potentially much larger group" than Congress intended. Alexander v. Trustees of Boston University, 584 F.Supp. 282, 283, 285 (D.Mass.1984). The court also believed that the Secretary overstepped his authority because the regulations "needlessly conflict with the Title IV educational aid program." Id. at 286. The court stated that "unsupported" assertions of possible delay and expense accruing from other means of determining an applicant's draft status did not justify DOE's overstepping the power delegated it by Congress. Id. at 285.

denying aid to fully qualified persons simply because they fail to file the statement is disproportionately harsh. Even when an administrative agency is authorized by statute to impose sanctions, a court may overturn that decision if it finds the sanction " 'unwarranted in law or ... without justification in fact.' " Butz v. Glover Livestock Commission, 411 U.S. 182, 185-86 [93 S.Ct. 1455, 1458, 36 L.Ed.2d 142], reh. denied, 412 U.S. 933 [93 S.Ct. 2746, 37 L.Ed.2d 162] (1973).

Id. The court singled out two characteristics of the regulatory "sanction"6 that made it disproportionately harsh and required a finding that the Secretary's action was "unwarranted by law and so far beyond delegated authority as to be arbitrary and capricious." Id. First, the Secretary has required application of the "sanction" of aid denial to those who fully qualified for benefits under statutory standards. Id. Second, the court noted that,

Denying aid to those whose only defense is refusal out of religious conviction to fill out a form stating that they are not required to register raises serious constitutional questions. I cannot conclude that Congress, after fully considering the constitutional implications of its own narrowly defined action, then delegated authority to the Secretary to make regulations of broader sweep that raise more troublesome constitutional problems.

Id. at 286.

The court declined to consider the federal constitutional and state law arguments raised by plaintiffs in Counts I and II. It enjoined the federal defendants7 solely because the DOE regulations went beyond the enabling statute (Count III).

In response to the court's order of April 11, 1984 directing the parties to confer on the form of the injunction to be entered, plaintiffs submitted a proposed order that would have enjoined the federal defendants from requiring "any applicant for federal educational aid who is exempt from any requirement of draft registration ... to submit information regarding such applicant's exempt status and from denying federal educational aid to any such person for failure to submit information concerning draft registration status." (Emphasis added.) Defendants objected to the broad scope of the proposed order. The court found that plaintiffs' proposed order was beyond the court's jurisdictional powers and issued a much narrower injunction:

Defendant United States Department of Education, Terrel H. Bell, Secretary, Selective Service System, Major General Thomas K. Turnage, Director, and their respective agents, ... and all persons acting by, through, for or in concert with them, are hereby enjoined, pending final judgment in this action, from withholding or delaying student financial assistance from plaintiffs under title IV of the Higher Education Act of 1965, 20 U.S.C. 1070 et seq., by reason of the failure of plaintiffs to submit statements of registration compliance pursuant to 34 C.F.R. Sec. 668.24 (1983)....

Both parties thereafter moved for summary judgment. Plaintiffs also moved for leave to amend their complaint "to include as plaintiffs all persons situated similarly to the present plaintiffs, and to amend their prayer for relief," and for certification of a Fed.R.Civ.P. 23(b)(2) class action on behalf of all registration-exempt persons who object to completing a Statement of Registration Compliance.

On June 6, 1984, the district court denied the federal defendants' motion for summary judgment and plaintiffs' motion to certify a class. The court, exercising its discretion, held the class action motion untimely because the court had already ruled favorably on plaintiffs' likelihood of success on the merits in its preliminary injunction decision, which involved the determination of legal questions likely to be dispositive of the entire case. It concluded that

[a]llowing plaintiffs first to see whether they can obtain a favorable ruling and only after so doing then to expand their complaint into one seeking relief on behalf of a nationwide class is unfair to defendants and contrary to the spirit of the federal rules.

In response to defendants' summary judgment arguments, the court reconfirmed its decision of April 11, 1984. The court observed that the parties had "failed to respond to the court's request that they indicate whether they are ready for trial on the merits, not summary judgment." The court then again asked the parties to advise the court whether they were ready for trial, either on the affidavits already submitted or on the understanding that additional evidence would be submitted. As neither party indicated an interest in submitting further evidence, the court, on June 20, 1984, entered a permanent injunction on terms identical to the preliminary injunction and dismissed without prejudice Counts I and II of plaintiffs' complaint.

We first consider whether DOE exceeded its authority under the Solomon Amendment, 50 U.S.C.App. Sec. 462(f)(4) in promulgating 34 C.F.R. Sec. 668.24. A regulation must be " 'reasonably related to the purposes of the enabling legislation.' " Mourning v. Family Publications Service, Inc., 411 U.S. 356, 369, 93 S.Ct. 1652, 1661, 36 L.Ed.2d 318 (1973) (quoting Thorpe v. Housing Authority of the City of Durham, 393 U.S. 268, 280-81, 89 S.Ct. 518, 525, 21 L.Ed.2d 474 (1969) ). It is in excess of authority if it "bears no relationship to any recognized concept" of the statutory terms at issue. Batterton v. Francis, 432 U.S. 416, 428, 97 S.Ct. 2399, 2407, 53 L.Ed.2d 448 (1977). A regulation will be sustained if the "reviewing court [is] reasonably able to conclude that the grant of authority contemplates the regulations issued." Chrysler Corp. v. Brown, 441 U.S. 281, 308, 99 S.Ct. 1705, 1721, 60 L.Ed.2d 208 (1979). See also Planned Parenthood Federation of America v. Heckler, 712 F.2d 650, 655 (D.C.Cir.1983).

Plaintiffs contend that the regulation is ultra vires because the Solomon Amendment denies aid eligibility only to "[a]ny person who is required under section 3 ... to present himself for and submit to registration under such section and fails to do so"; and it likewise conditions receipt of Title IV benefits upon the filing of statements of compliance only in respect to "person[s] who [are] required under section 3 ... to present [themselves] for and submit to registration." 50 U.S.C.App. Sec. 462(f)(1), (2) (quoted in full in note 1, supra ). Because, due to their sex and age, plaintiffs are not required under section 3 to present themselves for and submit to registration, they argue that conditioning aid on their signing a statement attesting to their exempt status goes beyond the statute.

While superficially plausible, this argument is not persuasive. Concededly, the statute's language is limited, and on its face affects a smaller group than do the regulations. But the fact that regulations cover individuals not included in the statutory scheme does not necessarily render them objectionable. See Mourning, 411 U.S. at 373-74, 93 S.Ct. at 1662-63.8 As the above cited cases indicate, the relevant inquiry is whether the regulations are reasonably related to the purposes of the enabling legislation and can be said to have been within Congress's contemplation when it enacted the Solomon Amendment.

The purpose of the Solomon Amendment was "to deny federal educational assistance to those young men who were required to register for the draft, yet had not done so." Alexander, 584 F.Supp. at 284. See also 128 Cong.Rec. H4757 (daily ed. July 28, 1982) (Rep. Solomon); id. (Rep. Mitchell); id. at H4769 (Rep. Montgomery). By imposing this condition for educational aid eligibility, "Congress sought, not to punish anyone, but to promote compliance with the draft registration requirement and fairness in the allocation of scarce federal resources." Selective Service System v. Minnesota Public Interest Research Group, 468 U.S. 841, 104 S.Ct. 3348, 3357-58, 82 L.Ed.2d 632 (1984) (footnote omitted) (holding, inter alia, Solomon Amendment is not a Bill of Attainder).9

To carry out this purpose, the Secretary must ascertain whether each aid applicant is a person required to register and, if so, whether the applicant has in fact registered. Manifestly, the easiest, most efficient, method to obtain the requisite information is simply to ask the applicant.10 We do not believe an agency charged with dispensing governmental program benefits needs explicit authority to ask those persons seeking such benefits whether they qualify for them. All plaintiffs were required to do was indicate that they were not required to register for the draft because they were females or fit within a certain age group.

The form in question elicits the relevant information with a minimum of fuss and inconvenience. It is short and clear, requiring minimal effort to complete. It has the virtue, from an administrator's standpoint, of compiling all necessary information on one easily processed piece of paper. And the information in issue, age and sex, is rudimentary, commonplace data solicited from most of us on countless occasions. We have little doubt that asking applicants to give this information on this form was a direct and efficient means of implementing the statute, thereby furthering its purpose.

Plaintiffs distinguish between the Secretary's right to ask aid applicants to fill out this informational form, and his authority to refuse aid to applicants who will not do so. They argue that the Secretary has no authority to extend the Solomon Amendment's "sanction" aimed at "lawbreakers" to a class of individuals who qualify for Title IV aid under all statutory eligibility requirements and who are in compliance with registration laws. The district court in essence accepted this characterization of the purpose and effect of the statute and regulations when it held that the denial of aid to plaintiffs was a "disproportionately harsh" administrative "sanction." Alexander, 584 F.Supp. at 285.

We disagree. No sanction, as such, is involved,11 nor are plaintiffs being denied aid for other than their voluntary act. In denying plaintiffs benefits, the Secretary is simply saying that if an individual is unwilling to tell the government that he or she fulfills the conditions for aid, the government will not dispense it. The situation is indistinguishable from many other programs where, before one obtains benefits, one has to fill out a form indicating that statutory conditions have been met. To call such an arrangement a "sanction" or "punishment" is to play with words.

The district court erred not only in viewing DOE's conditioning of aid upon certification of eligibility as a "sanction," but also in finding the "sanction" to be "disproportionately harsh." If the Secretary is not permitted to withhold program benefits from those who voluntarily choose not to complete applications showing their eligibility, he may face serious administrative difficulties. While some types of information may be otherwise accessible, other types may not be--such as information relating to registration eligibility exemptions like being in the armed forces on duty, or being a permanent resident of the Trust Territory of the Pacific Islands or the Northern Mariana Islands. In a program of this magnitude, we are unable to agree with plaintiffs that considerations of "administrative convenience" are insubstantial.

To be sure, it might have been possible to draft the regulations so as to avoid the present confrontation--for example, by accepting a university's certification of age or sex from its other records. See note 4, supra. But in determining whether regulations conform to a statute, the question is not whether they could have been written more accommodatingly, but whether they are reasonably related to carrying out the statutory purpose. It would be both a departure from existing law and an unwisely burdensome precedent to hold that perfectly reasonable regulations that condition the granting of aid upon a simple, straightforward showing of eligibility are illegally "harsh" because they might have been drafted so as to have circumvented objections such as the present ones.

In sum, we conclude that the regulations are amply related to the purposes of the Amendment inasmuch as they facilitate, in a reasonable manner, its effective implementation. Beyond administrative ends, moreover, the regulations further the substantive ends of the Solomon Amendment. The principal purpose of the Amendment was to induce eligible individuals to register. See Selective Service System, --- U.S. at ---- & n. 12, 104 S.Ct. at 3357 & n. 12; note 9, supra. The debate included a number of references to the many young men who failed to register because they were unaware of their obligation, and the hope that the Amendment would have the salutary effect of bringing the uninformed into compliance with the law. See, e.g., 128 Cong.Rec. H4757 (daily ed. July 28, 1982) (Rep. Solomon); id. at H4759 (Rep. Simon). By requiring all aid applicants to check off on a form the exemption applicable to themselves, the Secretary reminds them of any registration obligations as yet unmet, thus increasing the likelihood of compliance.

In short, under the ordinary understanding of the "reasonably related" standard, "[t]here can be no question ... that these regulations are 'reasonably related to [the purposes of] the enabling legislation.' " Dickinson v. Bell, 580 F.Supp. 432, 434 (D.D.C.1984) (quoting Mourning, 411 U.S. at 369, 93 S.Ct. at 1661).12 This being so, the regulations can only be deemed unauthorized if the congressional debate gave evidence that Congress would regard this means of implementing the statute as unreasonable, or if other considerations point to the necessity of a particularly close fit between the regulations and the Solomon Amendment. Plaintiffs contend that both types of factors exist and that, as a result, the regulations must be closely scrutinized and, ultimately, invalidated as beyond the grant of the enabling legislation. We will address these arguments in turn.

A. First, plaintiffs assert that because Congress was sensitive to the constitutional ramifications of the Amendment and because it places a high priority on the Title IV program, Congress purposely made the language of the statute narrow, evidencing its intent to deny aid only to those persons it specifically sought to exclude from Title IV eligibility. We find little or nothing in the congressional debate to support this view; rather the history tends to support the Secretary's regulations.

Congress adopted the present language of section 462(f)(1), (2) because that was the language proposed and approved by the Secretary,13 not because of any sensitivity to constitutional or other concerns. Such concern as existed over the Amendment's constitutionality sprang from the alleged discriminatory effect the Amendment would have on low- to middle-income students and from possible due process problems with the procedural protections afforded applicants.14 Sensitivity to possible first amendment problems was never mentioned, even when the debate centered on a proposed exemption from aid denial for non-registrants who certified that they were eligible for registration but refused to register on moral or religious grounds.15

Nor are the policies underlying Title IV such as would require that we construe strictly the language of the Amendment. As we have earlier said, see note 11, supra; compare page 637, supra, the Solomon Amendment was not viewed in Congress as a measure in which Title IV was used to achieve punitive ends unrelated to the Title IV program. Representative Solomon introduced the Amendment to add a condition for eligibility for Title IV funds, see 128 Cong.Rec. H4757 (daily ed. July 28, 1982) (Rep. Solomon),16 not to penalize a specific group of individuals. The debate reflects the members' belief that it would be unfair to allow those who failed to fulfill their minimal registration obligation to have the benefit of the limited Title IV funding. The Amendment is therefore consistent with the policy behind Title IV--to provide financial assistance to those students whom Congress deemed to be needy and deserving. Viewed in this light, the DOE requirement that applicants give the Department the information it needs to determine whether the applicants fulfill the Amendment's eligibility condition does not impede the purposes of Title IV any more than requirements regarding parental financial disclosure do.

Two other conclusions to be drawn from the legislative history of the Amendment reinforce our belief that Congress, if faced with the issue now before us, would agree that these regulations are reasonable. First, Congress determined that Title IV funds could be denied to those whose failure to register was prompted by religious or moral reasons. By extension, it seems unlikely Congress would have particular sympathy for those registration-exempt persons who, for like reasons, refuse to take the far less burdensome step of noting their exemption on a statement of compliance.

Second, the legislative history reveals that the present statutory method of implementing the exclusion of non-exempt, unregistered students from the Title IV program (i.e., mandating that each person required to register certify as to compliance, as opposed to requiring DOE and the Selective Service System to cross-check lists of applicants and registrants, as originally proposed) turned on DOE's estimate of the administrative workability of the proposals.17 It appears that Congress adopted the present system because the Secretary considered it more feasible, leading us to infer that Congress would likewise go along with the Secretary's related, if broader, regulatory scheme.

The foregoing analysis of the congressional debate over the Solomon Amendment leads us to conclude that a literal and restrictive construction of the statutory language is not called for, and that Congress would think that the current regulations are "reasonably related" to the Amendment.

B. Plaintiffs next argue that because this case raises a substantial constitutional issue (i.e., whether the regulatory requirement that registration-exempt individuals submit a statement of compliance as a precondition to obtaining Title IV aid impermissibly burdens their free exercise rights), this court should construe the regulations' enabling legislation narrowly so as to avoid that question. See St. Martin Evangelical Lutheran Church v. South Dakota, 451 U.S. 772, 780, 101 S.Ct. 2142, 2147, 68 L.Ed.2d 612 (1981); NLRB v. Catholic Bishop of Chicago, 440 U.S. 490, 500-01, 99 S.Ct. 1313, 1318-19, 59 L.Ed.2d 533 (1979); Kent v. Dulles, 357 U.S. 116, 129, 78 S.Ct. 1113, 1119, 2 L.Ed.2d 1204 (1958). They contend that if such a reading is applied, the Secretary's regulations will be invalidated as exceeding the authority conferred by the statute.

Their canon of construction, which holds that an act of Congress ought not be construed to violate the Constitution if any other possible construction remains available, see Murray v. The Charming Betsy, 6 U.S. (2 Cranch) 64, 118, 2 L.Ed. 208 (1804); Catholic Bishop, 440 U.S. at 500, 99 S.Ct. at 1318, is not applicable here. Plaintiffs' constitutional argument falls far short of provoking the "serious doubt of the [regulations'] constitutionality" necessary to invoke this canon of construction. Machinists v. Street, 367 U.S. 740, 749, 81 S.Ct. 1784, 1790, 6 L.Ed.2d 1141 (1961). See also Catholic Bishop, 440 U.S. at 501, 99 S.Ct. at 1319.

The denial of Title IV aid to those who refuse, out of religious scruples, to meet DOE regulatory conditions for granting aid, arguably may constitute some slight burden on the plaintiffs' first amendment rights. See Thomas v. Review Board of the Indiana Employment Security Division, 450 U.S. 707, 717-18, 101 S.Ct. 1425, 1431-32, 67 L.Ed.2d 624 (1981); Sherbert v. Verner, 374 U.S. 398, 404-05, 83 S.Ct. 1790, 1794, 10 L.Ed.2d 965 (1963). Plaintiffs contend, therefore, that to sustain the constitutionality of the regulations, a court must find that such incidental burdening of the plaintiffs' first amendment rights "is essential to accomplish an overriding governmental interest." United States v. Lee, 455 U.S. 252, 257-58, 102 S.Ct. 1051, 1055, 71 L.Ed.2d 127 (1982). See also Wisconsin v. Yoder, 406 U.S. 205, 214-15, 92 S.Ct. 1526, 1532-33, 32 L.Ed.2d 15 (1972); Sherbert, 374 U.S. at 403, 83 S.Ct. at 1793. The "burden" here on free exercise rights is, however, at best remote and tangential. We believe the above strict standard is inappropriate where only such a remote intrusion on an individual's free exercise rights has been shown. See United States v. Boardman, 419 F.2d 110 (1st Cir.), cert. denied, 397 U.S. 991, 90 S.Ct. 1124, 25 L.Ed.2d 398 (1970) (fact that defendant's conduct in failing to report for civilian work in compliance with a selective service board order was based on religious belief did not preclude criminal conviction). As this court explained in Boardman:

The Constitution does not extend the same degree of protection to every manifestation of religious impulse. The strict standard which defendant invokes may be appropriate when the government seeks to regulate acts of worship, or to compel conduct which violates a cardinal tenet of religious faith. In this case, however, defendant has been ordered to work in a hospital, an employment in which he has already engaged without violence to his principles. Defendant objects not to the specific conduct which the government requires, but to cooperation with a system which he considers wicked. But, in the words of Mr. Justice Cardozo,

"Never in our history has the notion been accepted * * * that acts thus indirectly related to service in the camp or field are so tied to the practice of religion as to be exempt, in law or in morals, from regulation by the state. * * * [A] different doctrine would carry us to lengths that have never yet been dreamed of. The conscientious objector, if his liberties were to be thus extended, might refuse to contribute taxes in furtherance of a war, whether for attack or for defense, or in furtherance of any other end condemned by his conscience as irreligious or immoral. The right of private judgment has never yet been so exalted above the powers and the compulsion of the agencies of government." Hamilton v. Board of Regents, 293 U.S. 245, 267, 268, 55 S.Ct. 197, 206, 79 L.Ed. 343 (1934) (concurring).

Id. at 112-13 (footnotes omitted).

Just as in Boardman, plaintiffs here object on religious grounds "not to the conduct which the government seeks to compel[, i.e., to the giving of information about one's sex or age, per se], but to the national policy which that conduct promotes[, i.e., the Selective Service System's functioning]." Id. at 112. Plaintiffs have, in fact, provided similar information, i.e., sex or age, on documents submitted to Boston University in other connections. This is not a case where the government seeks to extract information which, by itself, directly violates a religious tenet. Compare Quaring v. Peterson, 728 F.2d 1121 (8th Cir.1984) (requiring state to make exception to state drivers licensing requirement that applicants submit a photograph to accommodate applicant's free exercise of religious belief that taking of her photograph directly violates the second commandment's express prohibition on the making of any graven image), aff'd by equally divided Court, Westlaw, Supreme Court Database (June 17, 1985).

To be sure, it may not always be easy to draw lines in the first amendment area between objections to the conduct compelled and objections to the policy promoted by that conduct. Speech and religion arguments often involve highly symbolic objections. But in this case, the burden on plaintiffs' free exercise is at least as attenuated as the burdening upheld in Boardman. The challenged practice does not, therefore, deserve the same degree of scrutiny warranted where more direct infringements of religious freedoms are involved. See also Johnson v. Robison, 415 U.S. 361, 385-86, 94 S.Ct. 1160, 1174-75, 39 L.Ed.2d 389 (1974) (holding that free exercise right of appellee, a conscientious objector exempted from military service, was not violated by denial of educational benefits under the Veteran's Readjustment Benefits Act of 1966, stating that "[t]he withholding of educational benefits involves only an incidental burden upon appellee's free exercise of religion--if, indeed, any burden exists at all.").

Balancing whatever slight burden is borne by plaintiffs in being required to state that they are registration-exempt because of their sex or age against the governmental interest in securing this or like information from students seeking aid, we believe the governmental interest prevails. The Court, to be sure, has rejected questionable assertions of administrative convenience as justifying certain more substantial infringements of individuals' free exercise rights. See, e.g., Thomas, 450 U.S. at 719, 101 S.Ct. at 1432; Sherbert, 374 U.S. at 407, 83 S.Ct. at 1795. One--although not the only--governmental interest in the enforcement of this regulation without exceptions, see United States v. Lee, 455 U.S. at 259, 102 S.Ct. at 1056; Quaring, 728 F.2d at 1126, doubtless stems from administrative convenience. But in none of the cases where free exercise rights have overridden administrative convenience have the free exercise rights been so remote as a mere claim of right to withhold routine personal data which, by itself, has no religious significance to plaintiffs and is being withheld solely because elicited to show exemption from a program plaintiffs abhor. If administrative convenience must give way on this occasion, we would fear the erosion of the government's essential right to obtain from its citizens, without endless litigation and hassle, the basic information needed to govern.

Moreover, it is not administrative convenience alone that is involved here. Also implicated is the government's power to raise and support an army. U.S. Const., Art. I, Sec. 8. A chief purpose of the Solomon Amendment was to induce eligible individuals to register, and the regulations here at issue, as explained at pages 637-639, supra, both implement that inducement and serve an educational function regarding students' registration responsibilities. The courts have given the federal government's authority under section 8 of Article I great weight in cases dealing with conscientious objectors to military registration,18 the draft,19 and alternative service requirements,20 and in other cases.21 We think that any remote and indirect burden on plaintiffs' first amendment rights is far outdistanced by the immediate and direct governmental interest here involved.

In sum, we believe that plaintiffs' constitutional challenge is not sufficiently "serious" to warrant the very restrictive reading of the statutory language for which plaintiffs argue. We conclude that the regulations were authorized by the Solomon Amendment, and accordingly reverse the judgment below enjoining defendants from denying aid to plaintiffs.

In view of our reversal of the district court's judgment, we do not reach plaintiffs' cross-appeal concerning class relief and the scope of injunctive relief.

Because the court below believed that the contested regulations were not statutorily authorized, it did not reach plaintiffs' federal free exercise claim nor did it reach plaintiffs' state law claims. This court, however, has rejected plaintiffs' federal free exercise claim in the course of rejecting plaintiffs' argument that the enabling legislation should be read narrowly, and the challenged regulations should thereby be held to exceed statutory authority, because the regulations give rise to serious federal constitutional doubts. The district court should, on remand, determine whether there remain any issues that are still appropriate for it to determine after our opinion, and, if any, make such disposition of them as it considers proper.22

Reversed and remanded.

BREYER, Circuit Judge (dissenting).

The appellees would like the court to hold that the government must pay them educational benefits despite their reluctance (for religious reasons) to fill out the proper form. The government, on the other hand, wishes to show that it can insist upon punctilious adherence to its formal requirements. This court, however, need not--indeed it should not--resolve the clash of "bureaucratic v. religious" principles for one simple reason. The applicants in effect have filled out the critical parts of requisite forms; they have directly provided the government with all the information it requested; they have made the necessary certifications; their deviation from the formal requirements is insubstantial or de minimis. For this reason, irrespective of the validity of the claim of "religious right," the government should pay the students the educational benefits to which they are entitled.

The regulation in question says that a university may provide a student with Title IV federal financial aid only if the student "files a Statement of Registration Compliance with the institution." The regulation adds:

In the Statement of Registration Compliance, the student must certify either that he or she is registered with Selective Service or that, for a specified reason, he or she is not required to be registered.

34 C.F.R. Sec. 668.24(a) (1984). The Secretary of Education has provided a "model statement" form of a registration compliance statement, see id. Sec. 668.25, but the regulation does not require the university to use this particular form. Indeed, in a supplementary communication to colleges and universities, the Department said

a verbatim repetition of the model statement in the regulations would not be required as long as all substantive requirements of the regulations are included in the institution's statement.

The Department has also made clear that statements are to be filed with universities. And, the universities are to keep the statements; they are not to forward them to the Department.

Each student in this case has sent directly or indirectly to the university's financial aid office four or five sheets of paper which, in an obvious, readily available way, contain all the necessary information and certifications. To understand how this occurred, one must focus upon two separate documents both of which a financial aid applicant arranges to have sent to the university. The first document is entitled "Financial Assistance Statement." The Financial Assistance Statement contains a set of boxes apparently used to calculate the amount of an aid award. At the bottom of the page there is a "Statement of Educational Purpose/Registration Requirement" which reads as follows:

I certify that I will use the money I receive under the Title IV student financial aid programs only for expenses related to attendance at Boston University, and (check one):

__ I certify that I am not required to be registered with Selective Service because--(check one reason):

__ I am a female.

__ I am in the armed services on active duty. (Note: Members of the reserves and National Guard are not considered on active duty.)

__ I have not reached my 18th birthday.

__ I was born before 1960.

__ I am a permanent resident of the Trust Territory of the Pacific Islands or the Northern Mariana Islands.

__ I certify that I am registered with Selective Service.

By my signature I also acknowledge that I have read and agree to the statements on both sides of this document.

Signature: ___________________ Date: ________________

NOTICE: You will not receive Title IV financial aid unless you complete this statement and, if required, give proof to your school of your registration compliance. If you purposely state falsely that you are registered or that you are not required to be registered, you may be subject to fine or imprisonment, or both.

The second document consists of several pages entitled "Financial Aid Form." Side I of this form asks the student to list, among other things, his or her name and "date of birth." Side II asks for other information, including "Student's sex (optional) __________ Male __________ Female." The form contains a space for the student's signature, next to the statement:

Certification: All of the information on this form is true and complete to the best of my knowledge. If asked by an authorized official, I agree to give proof of the information I have given on this form....

At the top of Side I, in a box outlined in dark print, there appears the following notice:

If you use this form to establish eligibility for federal student aid funds, you should know that any person who makes false statements or misrepresentations on this form is subject to a $10,000 fine or to imprisonment or both, under provisions of the United States Criminal Code.

Two of the student appellees in this case refused to fill out the first form, though one of them sent it in signed, with the boxes unchecked. The third student, Michael Alexander, properly filled out a statement of registration compliance (which consisted of the relevant portion of the Statement). He has added that he did so "under duress." Each of the three students filled out the Financial Aid Form and indicated on that form his or her sex and date of birth. Each signed the form's certification. To be more specific, the two female applicants did not put a check next to the two lines in the Statement that say

--- I certify that I am not required to be registered with Selective Service because . . .

--- I am a female.

* * *

But each of them did check the box on the Financial Aid Form that said "Female," and each signed a "certification" that this representation was true. The male applicant, Michael Alexander, in fact signed a statement of registration compliance and put a check next to the two lines that say

He says now that he did so "under duress." He also filled in, without objection, a blank in the Financial Aid Form with his birthdate, and signed a "certification" that this representation was true.

The few pages of the Financial Aid Form provide the university with all the information, certifications, and signatures the regulation calls for. The information is simple and straightforward; its relevance to the statute is obvious. Anyone inspecting the few pages briefly would know at a glance that the applicant does not have to register for the draft. The information is readily available. Apparently, the student sends the forms (or copies of the forms are sent), directly or indirectly, to the University's financial aid office, where they would seem likely to end up in the same file as the official "Statement." As previously mentioned, the government says specifically that the university is not to send it the compliance forms; the university is to keep them itself.

I agree that the students have not checked the proper box on the proper form. As a general matter, the government has a strong administrative interest in insisting that applicants fill out forms properly. But, are there not stronger reasons for the government simply to overlook so trifling a deviation from the bureaucratic norm, at least where the applicants have a genuine religious or ideological scruple that prohibits their supplying the information on one form but not on another, equally useful one? To deny this, in a nation as diverse as ours, housing so many strongly held but differing points of view, is to exacerbate conflict where it could be muted. It is also to threaten an unnecessary weakening of judicial authority insofar as that authority rests on judicial reluctance to intervene in ideological disputes unless and until they focus upon differences over matters of substance. Cf. Ashwander v. Tennessee Valley Authority, 297 U.S. 288, 346-48, 56 S.Ct. 466, 482-83, 80 L.Ed. 688 (1936) (Brandeis, J., concurring).

That the case before us is one of "trivial deviation" I have no doubt. What bureaucratic or other governmental purpose is served here by the government's refusal to tolerate the deviation at issue, by its insistence upon literal compliance with a 'check-the-box' rule (a rule apparently derived by interpretation of a set of 'questions and answers' interpreting a regulation interpreting the statute, see majority opinion, ante, pp. 633-634)?

1. Will the government's insistence provide the government or the university with additional useful information?

No. The Financial Aid Form gives the government and the university the same information.

2. Will it help to clarify, or specify, the information?

No. The information--sex and age--could not be more clear; it is provided on the Financial Aid Form in a manner that allows no confusion.

3. Will it help a 'verifying official' by making clear the relevance of the information to the statutory need?

No. The relevance to the statute is obvious--i.e., it is obvious that women and older students do not have to register for the draft.

4. Will it make it easier for the government later to penalize or to prosecute those who lie?

No. The certification appears on both forms; the signature appears on both forms; the warnings of penalties and prosecution appear on both forms (and the warning on the Financial Aid Form is stronger).

5. Will it make it easier for the government to locate the information?

Not really. Neither the Financial Assistance Statement nor the Financial Aid Form is sent to the government. Both of them (or copies of them) apparently live out their full lives together in the files of Boston University's financial aid office.

Under these circumstances, common sense suggests that the Department should have concluded that the students' failure to check the right box presents no threat to the Republic, to the statute, to the regulation, or to orderly administration. The Department had adequate legal power to treat the deviation as de minimis, to find that the students had substantially complied with statute and regulation. See Alabama Power Co. v. Costle, 636 F.2d 323, 360 & n. 88 (D.C.Cir.1979) (stating that agencies have power to overlook de minimis deviations from regulations and listing cases); cf. American Farm Lines v. Black Ball Freight Service, 397 U.S. 532, 537-38, 90 S.Ct. 1288, 1291-92, 25 L.Ed.2d 547 (1970) (ICC may relax procedural rules requiring certain information to be set forth in statements in a given case when justice requires); NLRB v. Ideal Laundry and Dry Cleaning Co., 330 F.2d 712, 718 (10th Cir.1964); McKenna v. Seaton, 259 F.2d 780, 783-84 (D.C.Cir.), cert. denied, 358 U.S. 835, 79 S.Ct. 57, 3 L.Ed.2d 71 (1958).

Where the agency's interest in form is negligible, it might well be unreasonable or "arbitrary" for it to refuse to find that an applicant substantially complied with its rules or to make an exception. Could the Department, for example, recover funds from an applicant who had accidently forgotten to check the right box several years earlier? Cf. NLRB v. Marshall Maintenance Corp., 320 F.2d 641, 643-45 (3d Cir.1963) (overturning Board's "inflexible adherence to the strict letter of the law," in case of one-day delay in filing of exceptions) and authorities cited there; NLRB v. Central Mercedita, Inc., 273 F.2d 370, 372 (1st Cir.1959) (Board acted arbitrarily in defaulting party whose exceptions were two days late). See generally Alabama Power Co. v. Costle, 636 F.2d at 360 n. 87 (listing de minimis cases); Sawyer v. County of Sonoma, 719 F.2d 1001, 1008 (9th Cir.1983) ("The doctrine of substantial compliance is an equitable doctrine designed to avoid hardship in cases where the party does all that can reasonably be expected of him."); Videotronics, Inc. v. Bend Electronics, 586 F.Supp. 478, 484 (D.Nev.1984) ("[I]n determining whether there has been substantial compliance with a statute, a court should determine whether the statute has been followed sufficiently so as to carry out the intent for which it was adopted.")

In any event, given the lack of agency interest in insisting upon literal compliance with its interpretation of its rule and given the constitutionally protected interests that the applicants assert, the agency's insistence here, in my view, is unreasonable. The agency's interest is no weightier than a state's in enforcing various procedural technicalities that the courts have found inadequate to withstand the assertion of a constitutional right. Compare Shuttlesworth v. City of Birmingham, 376 U.S. 339, 84 S.Ct. 795, 11 L.Ed.2d 766 (1964) (a minor procedural failing, such as using the wrong type of paper, cannot constitute an "adequate state ground" blocking review of a federal constitutional issue); Wright v. Georgia, 373 U.S. 284, 83 S.Ct. 1240, 10 L.Ed.2d 349 (1963) (same); P. Bator, P. Mishkin, D. Shapiro, & H. Wechsler, The Federal Courts and the Federal System 545 (2d ed. 1973). Under these circumstances, the agency should simply make an exception to what is basically an informal interpretation of its regulation. See Thomas v. Review Board of the Indiana Employment Security Division, 450 U.S. 707, 101 S.Ct. 1425, 67 L.Ed.2d 624 (1981) (requiring that state make minimal adjustment to accommodate religious principle); Wooley v. Maynard, 430 U.S. 705, 97 S.Ct. 1428, 51 L.Ed.2d 752 (1977) (same); Wisconsin v. Yoder, 406 U.S. 205, 92 S.Ct. 1526, 32 L.Ed.2d 15 (1972) (same); Sherbert v. Verner, 374 U.S. 398, 83 S.Ct. 1790, 10 L.Ed.2d 965 (1963) (same). Cf. Asimakopoulos v. Immigration and Naturalization Service, 445 F.2d 1362 (9th Cir.1971) (requiring individualized exercise of agency discretion in light of statutory policy). The agency's failure to make so minimal an accommodation as is required here is, in my view, "arbitrary." 5 U.S.C. Sec. 706(2)(A).

The other members of the panel are unwilling to view this appeal as presenting an issue of "substantial compliance" because the parties did not argue it on that basis. Majority opinion, ante, n. 22. The students' brief in the district court, however, comes close to doing so. ("The only relevant inquiry is whether the defendants already have information concerning these plaintiffs that they could rely upon in lieu of requiring submittal of the Statement." App. at 153; emphasis is in original.) And, we discussed the matter with counsel at oral argument. See majority opinion, ante, n. 4. See also Doe v. Anrig, 728 F.2d 30, 32 (1st Cir.1984) ("We are, of course, free to affirm a district court's decision 'on any ground supported by the record even if the issue was not pleaded, tried, or otherwise referred to in the proceedings below.' "). In any event, I would not allow the parties, through their choice of arguments, to force this court unnecessarily to decide a broader constitutional question than the facts require. If necessary, we should call for reargument or remand the case to the district court for further consideration of the point. Cf. Massachusetts v. Westcott, 431 U.S. 322, 97 S.Ct. 1755, 52 L.Ed.2d 349 (1976) (per curiam). In the absence of any such further reconsideration, and particularly in light of the First Amendment considerations raised, I would find that the appellees have substantially complied with the agency's rules and therefore require the government to grant them the financial assistance they seek.