The Supreme Court has agreed to resolve the split between the Eleventh and Fifth Circuits on whether Title IX and its regulations provide a cause of action to an individual who suffers retaliation for complaining about gender discrimination suffered by others. Jackson v. Birmingham Bd. of Educ., 309 F.3d 11333 (11th Cir. 2002), cert. granted, 2004 WL 1300175 (U.S. Jun 14, 2004). The Eleventh Circuit's decision relied heavily on Alexander v. Sandoval, 532 U.S. 275 (2001), which was decided after the Fifth Circuit case, in finding that the male coach of a girls' basketball team had no cause of action. The Bush Administration filed a brief in support of the plaintiff urging the Court to take the case, and it is possible that this fact could lead the Court to limit the rule of Sandoval that regulations cannot create a cause of action.
Title IX is patterned after Title VI - the statute at issue in Sandoval - and contains almost identical language prohibiting discrimination by programs receiving federal funding. Section 901 provides that "[n]o person in the United States shall, on the basis of sex, be excluded from participation in, be denied the benefits of, or be subjected to discrimination under any education program or activity receiving Federal Financial assistance...." 20 U.S.C. § 1681(a). Section 902 contains an elaborate administrative enforcement scheme and also gives federal agencies power "to effectuate the provisions" of section 901 by issuing regulations. The primary enforcement mechanism available to agencies under section 902 is the power to cut off federal funding.
The regulation at issue, promulgated by the Department of Education, provides:
No recipient [of federal funds] or other person shall intimidate, threaten, coerce, or discriminate against any individual for the purpose of interfering with any right or privilege secured by section [901], or because he has made an complaint, testified, assisted, or participated in any manner in an investigation, proceeding or hearing under this part. 34 C.F.R. § 100.7(e).
It seems relatively clear that the plaintiff in Jackson would have a cause of action under this regulation. But in Sandoval, the Supreme Court held that regulations cannot themselves create a cause of action not provided by the statute itself. Here, the plaintiff has two hurdles to overcome. The first is whether the implied cause of action against gender discrimination that the Court has already recognized under Title IX reaches retaliation. It would not be a hard stretch to find that retaliation is encompassed within the "discrimination" prohibited by Title IX.
The much harder issue for the plaintiff is whether a third party who is not the direct target of sex discrimination can assert the cause of action. Here, it is harder to tether the cause of action to the text of the statute itself, and resort to the regulation is more important. If the Court sticks with the strict approach it used in Sandoval, it likely will affirm the Eleventh Circuit's dismissal of the case.
But given the fact that the Bush Administration is weighing in on the side of the Jackson plaintiff, there is some reason for optimism that the Court may temper the harsh Sandoval rule. The majority in Sandoval acknowledged that its sole mission in deciding whether there is a cause of action is to determine congressional intent. Here, the Court could easily find that when Congress authorized agencies to "effectuate" the ban on sex discrimination, it authorized a rule prohibiting retaliation aimed at interfering with that ban. The trick will be to find some way to distinguish Sandoval.
One way might be to pick up on Justice Scalia's insistence that "this Court is bound by holdings, not language." Sandoval, 532 U.S. at 282. The language of Sandoval restricts the ability of regulations to create causes of actions beyond those in the statute itself. But its holding is that when Congress intended a statute only to prohibit intentional discrimination, it did not authorize a disparate impact claim reaching unintentional conduct outside of the statute. In the instant case - as evidenced by the position of the Bush Administration - there is not the same political tension between the rights created by the regulation and the rights created by the statute. Taking the facts of the Jackson complaint as true, as the Court must, the defendant school board retaliated because the coach complained about unlawful sex discrimination, and the purpose of the retaliation was to interfere with the girls' rights under Title IX. This is conduct that Congress surely authorized the agencies to prohibit. Sandoval thus should be limited to its holding.
The rules that the Supreme Court has been creating to determine the existence of causes of action, whether under substantive statutes or under 42 U.S.C. § 1983, are beginning to take on a life of their own, apart from their stated purpose of simply divining congressional intent. When the facts of a particular case put some conservatives on the side of public interest plaintiffs, advocates need to take advantage of that situation to chip away at those formulaic rules. The Jackson case is a particularly significant one to watch because it involves a statute adopted under Congress' power under the Spending Clause. The Spending power is becoming increasingly important to civil rights plaintiffs given the Supreme Court's recent restrictions on Congress's power under the Fourteenth Amendment.
Lauren K. Saunders, Director
Federal Rights Project
National Senior Citizens Law Center
1101 14th Street, NW, Suite 400
Washington, DC 20005
(202) 289-6976 x 214
Fax: :(202) 289-7224
The Supreme Court has agreed to resolve the split between the Eleventh and Fifth Circuits on whether Title IX and its regulations provide a cause of action to an individual who suffers retaliation for complaining about gender discrimination suffered by others. Jackson v. Birmingham Bd. of Educ., 309 F.3d 11333 (11th Cir. 2002), cert. granted, 2004 WL 1300175 (U.S. Jun 14, 2004). The Eleventh Circuit's decision relied heavily on Alexander v. Sandoval, 532 U.S. 275 (2001), which was decided after the Fifth Circuit case, in finding that the male coach of a girls' basketball team had no cause of action. The Bush Administration filed a brief in support of the plaintiff urging the Court to take the case, and it is possible that this fact could lead the Court to limit the rule of Sandoval that regulations cannot create a cause of action.
Title IX is patterned after Title VI - the statute at issue in Sandoval - and contains almost identical language prohibiting discrimination by programs receiving federal funding. Section 901 provides that "[n]o person in the United States shall, on the basis of sex, be excluded from participation in, be denied the benefits of, or be subjected to discrimination under any education program or activity receiving Federal Financial assistance...." 20 U.S.C. § 1681(a). Section 902 contains an elaborate administrative enforcement scheme and also gives federal agencies power "to effectuate the provisions" of section 901 by issuing regulations. The primary enforcement mechanism available to agencies under section 902 is the power to cut off federal funding.
The regulation at issue, promulgated by the Department of Education, provides:
No recipient [of federal funds] or other person shall intimidate, threaten, coerce, or discriminate against any individual for the purpose of interfering with any right or privilege secured by section [901], or because he has made an complaint, testified, assisted, or participated in any manner in an investigation, proceeding or hearing under this part. 34 C.F.R. § 100.7(e).
It seems relatively clear that the plaintiff in Jackson would have a cause of action under this regulation. But in Sandoval, the Supreme Court held that regulations cannot themselves create a cause of action not provided by the statute itself. Here, the plaintiff has two hurdles to overcome. The first is whether the implied cause of action against gender discrimination that the Court has already recognized under Title IX reaches retaliation. It would not be a hard stretch to find that retaliation is encompassed within the "discrimination" prohibited by Title IX.
The much harder issue for the plaintiff is whether a third party who is not the direct target of sex discrimination can assert the cause of action. Here, it is harder to tether the cause of action to the text of the statute itself, and resort to the regulation is more important. If the Court sticks with the strict approach it used in Sandoval, it likely will affirm the Eleventh Circuit's dismissal of the case.
But given the fact that the Bush Administration is weighing in on the side of the Jackson plaintiff, there is some reason for optimism that the Court may temper the harsh Sandoval rule. The majority in Sandoval acknowledged that its sole mission in deciding whether there is a cause of action is to determine congressional intent. Here, the Court could easily find that when Congress authorized agencies to "effectuate" the ban on sex discrimination, it authorized a rule prohibiting retaliation aimed at interfering with that ban. The trick will be to find some way to distinguish Sandoval.
One way might be to pick up on Justice Scalia's insistence that "this Court is bound by holdings, not language." Sandoval, 532 U.S. at 282. The language of Sandoval restricts the ability of regulations to create causes of actions beyond those in the statute itself. But its holding is that when Congress intended a statute only to prohibit intentional discrimination, it did not authorize a disparate impact claim reaching unintentional conduct outside of the statute. In the instant case - as evidenced by the position of the Bush Administration - there is not the same political tension between the rights created by the regulation and the rights created by the statute. Taking the facts of the Jackson complaint as true, as the Court must, the defendant school board retaliated because the coach complained about unlawful sex discrimination, and the purpose of the retaliation was to interfere with the girls' rights under Title IX. This is conduct that Congress surely authorized the agencies to prohibit. Sandoval thus should be limited to its holding.
The rules that the Supreme Court has been creating to determine the existence of causes of action, whether under substantive statutes or under 42 U.S.C. § 1983, are beginning to take on a life of their own, apart from their stated purpose of simply divining congressional intent. When the facts of a particular case put some conservatives on the side of public interest plaintiffs, advocates need to take advantage of that situation to chip away at those formulaic rules. The Jackson case is a particularly significant one to watch because it involves a statute adopted under Congress' power under the Spending Clause. The Spending power is becoming increasingly important to civil rights plaintiffs given the Supreme Court's recent restrictions on Congress's power under the Fourteenth Amendment.
Lauren K. Saunders, Director
Federal Rights Project
National Senior Citizens Law Center
1101 14th Street, NW, Suite 400
Washington, DC 20005
(202) 289-6976 x 214
Fax: :(202) 289-7224