Joseph v. Bd. of Regents of The Univ. of Georgia discusses whether Title IX of the Education Amendments of 1972 creates an implied private right of action for sex discrimination in employment. 121 F. 4th 855 (11th Cir. 2024). The question has divided federal appellate courts, creating a circuit split on the scope of Title IX’s enforceability in the employment context.
Crowther worked as an art professor at Augusta University from 2006 through spring 2021. During the Spring 2020 semester, several students complained that Crowther had sexually harassed them. While the University investigated those complaints, the chair of the Department of Art and Design issued Crowther a negative evaluation of his teaching and tried to negotiate his resignation. After the investigation found that Crowther had violated the University's sexual harassment policy, the University suspended his employment for one semester. Crowther appealed that decision through several channels to no avail. Before Crowther's appeal ended, the interim dean reassigned him to remedial tasks and refused to renew his contract for the 2021-2022 academic year.
Crowther later sued the Board of Regents of the University System of Georgia and several officials for sex discrimination and retaliation under Title IX and other provisions of federal law. He requested both damages and injunctive relief. The Board and officials moved to dismiss Crowther's complaint. The district court dismissed the claims against the officials but denied the motion to dismiss the claims against the Board under Title IX. The district court also certified the order for interlocutory appeal based on the question whether Title VII precludes claims for sex discrimination in employment brought under Title IX. See 28 U.S.C. § 1292(b).
Held — Title IX does not create an implied right of action for sex discrimination in employment. The Supreme Court "has never extended the implied private right of action under Title IX to
claims of sex discrimination for employees of educational institutions."
Joseph, 121 F. 4th 855 (11th Cir. 2024).
Title IX Does Not Provide a Private Right of Action
for Sex Discrimination in Employment.
The parties ask us to decide whether the rights and remedies under Title VII preclude claims for employment discrimination under Title IX. Our sister circuits are split on that question. Compare Lakoski v. James, 66 F.3d 751, 753 (5th Cir. 1995) (finding preclusion as to individuals seeking money damages under Title IX), and Waid v. Merrill Area Pub. Schs., 91 F.3d 857, 862 (7th Cir. 1996) (same as to claims for equitable relief under Title IX or section 1983), abrogated in part on other grounds by Fitzgerald v. Barnstable Sch. Comm., 555 U.S. 246, 251, 129 S.Ct. 788, 172 L.Ed.2d 582 (2009), with Doe v. Mercy Cath. Med. Ctr., 850 F.3d 545, 560 (3d Cir. 2017) (finding no preclusion); see also Vengalattore v. Cornell Univ., 36 F.4th 87, 92 (2d Cir. 2022) (holding that Title IX right of action was viable without deciding the preclusion question); Lipsett v. Univ. of Puerto Rico, 864 F.2d 881, 896-97 (1st Cir. 1988) (same); Preston v. Virginia ex rel. New River Cmty. Coll., 31 F.3d 203, 206 (4th Cir. 1994) (same); Hiatt v. Colo. Seminary, 858 F.3d 1307, 1316-17 (10th Cir. 2017) (same). But Supreme Court precedent requires us to ask a more fundamental question: whether Title IX provides an implied right of action for sex discrimination in employment. We hold that it does not.
Whether express or implied, "private rights of action to enforce federal law must be created by Congress." Alexander v. Sandoval, 532 U.S. 275, 286, 121 S.Ct. 1511, 149 L.Ed.2d 517 (2001). When Congress fails to provide an express right of action, "[t]he judicial task is to interpret the statute Congress has passed to determine whether it displays an intent to create not just a private right but also a private remedy." Id. (emphasis added). An intent to create a remedy is necessary "even where a statute is phrased in ... explicit rights-creating terms." Gonzaga Univ. v. Doe, 536 U.S. 273, 284, 122 S.Ct. 2268, 153 L.Ed.2d 309 (2002). And even when a statute "was intended to protect" a certain class, "the mere fact that the statute was designed to protect [that class] does not require the implication of a private cause of action ... on their behalf." Transamerica Mortg. Advisors, Inc. v. Lewis, 444 U.S. 11, 24, 100 S.Ct. 242, 62 L.Ed.2d 146 (1979) (emphasis added). "The dispositive question [is] whether Congress intended to create any such remedy." Id.; see also Sandoval, 532 U.S. at 286, 121 S.Ct. 1511 ("Statutory intent ... is determinative."). Without a clear indication of congressional intent to create a cause of action, "courts may not create one, no matter how desirable [a cause of action] might be as a policy matter, or how compatible with the statute." Sandoval, 532 U.S. at 286-87, 121 S.Ct. 1511; see also Gonzaga Univ., 536 U.S. at 280, 122 S.Ct. 2268 ("[U]nless Congress speaks with a clear voice, and manifests an unambiguous intent to confer individual rights, federal funding provisions provide no basis for private enforcement." (alteration adopted) (citation and internal quotation marks omitted)).
Since the landmark decision in Alexander v. Sandoval, the Supreme Court has reminded inferior courts to exercise caution in implying rights of action. For example, in Gonzaga University v. Doe, the Court "reject[ed] the notion that [its] cases permit anything short of an unambiguously conferred right to support a cause of action." 536 U.S. at 276, 283, 122 S.Ct. 2268 (considering whether Family Educational Rights and Privacy Act conferred a right that could be vindicated under section 1983). And in Cummings v. Premier Rehab Keller, PLLC, the Court circumscribed the remedies for implied rights of action under several statutes prohibiting discriminatory practices. 596 U.S. 212, 142 S. Ct. 1562, 1569-70, 1576, 212 L.Ed.2d 552 (2022) (holding "that emotional distress damages are not recoverable under the Spending Clause antidiscrimination statutes"). Where implied rights of action exist, we must honor them, but we cannot expand their scope without assuring ourselves that Congress unambiguously intended a right of action to cover more people or more situations than courts have yet recognized.
Congress enacted Title IX under the Spending Clause and provided an express remedial scheme for withdrawing federal funding. See 20 U.S.C. § 1682. For most Spending Clause legislation, "'the typical remedy for ... noncompliance with federally imposed conditions is not a private cause of action ... but rather action by the Federal Government to terminate funds.'" Gonzaga Univ., 536 U.S. at 280, 122 S.Ct. 2268 (quoting Pennhurst State Sch. & Hosp. v. Halderman, 451 U.S. 1, 28, 101 S.Ct. 1531, 67 L.Ed.2d 694 (1981)). When deciding whether an implied right of action exists under Spending Clause legislation, "our consideration of whether a remedy qualifies as appropriate relief must be informed by the way Spending Clause statutes operate: by conditioning an offer of federal funding on a promise by the recipient." Cummings, 142 S. Ct. at 1570 (citation and internal quotation marks omitted). Even where Spending Clause legislation is phrased in terms of the "persons" protected, the inclusion of a funding-based remedial scheme cautions against construing the statute to create other remedies. See Gonzaga Univ., 536 U.S. at 284, 289, 122 S.Ct. 2268 (noting that the conclusion that a Spending Clause statute did not confer enforceable rights was "buttressed by the mechanism that Congress chose to provide for enforcing [the statute's] provisions").
"Unlike ordinary legislation, which 'imposes congressional policy' on regulated parties 'involuntarily,' Spending Clause legislation operates based on consent: 'in return for federal funds, the recipients agree to comply with federally imposed conditions.'" Cummings, 142 S. Ct. at 1570 (alteration adopted) (quoting Pennhurst, 451 U.S. at 16, 17, 101 S.Ct. 1531). But those conditions are binding only if they are clear and the "recipient voluntarily and knowingly accepts the terms of th[e] contract." Id. (alteration adopted) (citation and internal quotation marks omitted). The relevant terms of that "contract" include both the duties imposed and the liabilities created because "a prospective recipient would surely wonder not only what rules it must follow, but also what sort of penalties might be on the table." Id. So, if an implied right of action would impose unclear conditions or remedies for Spending Clause legislation, we should not recognize that right. Id. ("A particular remedy is ... appropriate relief in a private Spending Clause action only if the funding recipient is on notice that, by accepting federal funding, it exposes itself to liability of that nature." (citation and internal quotation marks omitted)). And for a state recipient of federal funds, the clarity of the penalty is important because Title IX abrogates any recipient's sovereign immunity from claims for damages. See 42 U.S.C. § 2000d-7; Atascadero State Hosp. v. Scanlon, 473 U.S. 234, 242, 105 S.Ct. 3142, 87 L.Ed.2d 171 (1985) (requiring that abrogation to be "unmistakably clear in the language of the statute").
The Supreme Court has held that Title IX provides an implied right of action for students who complain of sex discrimination by schools that receive federal funds. In Cannon v. University of Chicago, the Court held that section 901 of Title IX provided an implied right of action for a prospective student because "the language of the statute explicitly conferred a right directly on a class of persons that included the plaintiff in the case" and was "phrased in terms of the persons benefited." 441 U.S. 677, 690 n.13, 692, 99 S.Ct. 1946, 60 L.Ed.2d 560 (1979). Cannon concluded that the prospective student was clearly a member of an intended beneficiary class and that Congress intended Title IX not only to ferret out discriminatory uses of federal funding but also to protect individual students from discrimination. Id. at 680, 693-94, 709-10, 99 S.Ct. 1946 (first interpreting Title IX, then considering the consequences for university admissions decisions).
In Jackson v. Birmingham Board of Education, the Supreme Court also held that Title IX provides a private right of action for retaliation for an employee's complaint about discrimination against students. 544 U.S. 167, 171, 125 S.Ct. 1497, 161 L.Ed.2d 361 (2005). There, the male coach of a high school girls' basketball team complained that the school retaliated against him for complaining that the school discriminated against the girls' team. Id. at 171-72, 125 S.Ct. 1497. The Court concluded that "the text of Title IX prohibits a funding recipient from retaliating against a person who speaks out against sex discrimination, because such retaliation is intentional 'discrimination' on the basis of sex.'" Id. at 178, 125 S.Ct. 1497. The Court explained that the statutory goal of protecting students from discrimination "would be difficult, if not impossible, to achieve if persons who complain about sex discrimination did not have effective protection against retaliation" and that "teachers and coaches ... are often in the best position to vindicate the rights of their students." Id. at 180-81, 125 S.Ct. 1497 (emphasis added) (citation and internal quotation marks omitted).
Although the Supreme Court has reaffirmed Cannon several times, it has never extended the implied private right of action under Title IX to claims of sex discrimination for employees of educational institutions. To be sure, Title IX empowers administrative agencies to promulgate and enforce regulations that require educational institutions to avoid sex discrimination against their employees. See N. Haven Bd. of Educ. v. Bell, 456 U.S. 512, 521, 535-36, 102 S.Ct. 1912, 72 L.Ed.2d 299 (1982). The Supreme Court has held that because "[section] 901(a) neither expressly nor impliedly excludes employees from its reach," Title IX "cover[s] and protect[s]" employees through the statute's funding conditions structure. Id. at 521, 530, 102 S.Ct. 1912 ("[E]mployment discrimination comes within the prohibition of Title IX."). But that federal funding might be contingent on an educational institution's treatment of its employees—or that an administrative agency could issue regulations imposing that contingency— has little bearing on whether Congress intended to create a private right of action for employees under Title IX. Cf. Sandoval, 532 U.S. at 290, 121 S.Ct. 1511 (refusing to imply a right of action under the administrative enforcement provision of Title VI). To answer that question, we must look to congressional intent in creating "not just a private right but also a private remedy." Id. at 286, 121 S.Ct. 1511. Bell considered only the administrative remedy evident on the face of Title IX, not any implied private right of action.
None of these Supreme Court precedents —Cannon, Jackson, or Bell—speak to whether Title IX created an implied right of action for sex discrimination in employment. And our sister circuits that have allowed claims of sex discrimination in employment under Title IX to proceed have failed to grapple with the inquiry required by Sandoval (and later Gonzaga); they instead have relied primarily on Bell (and later Jackson) to hold that Title IX prohibits employment discrimination. See, e.g., O'Connor v. Peru State Coll., 781 F.2d 632, 642 n.8 (8th Cir. 1986); Mabry v. State Bd. of Cmty. Colls. & Occup. Educ., 813 F.2d 311, 316-17 (10th Cir. 1987); Lipsett, 864 F.2d at 884 n.3, 896; Preston, 31 F.3d at 204 n.1, 205-06; Waid, 91 F.3d at 861; Mercy Cath. Med. Ctr., 850 F.3d at 562; Vengalattore, 36 F.4th at 104-06; see also Campbell v. Haw. Dep't of Educ., 892 F.3d 1005, 1023 (9th Cir. 2018); Snyder-Hill v. Ohio State Univ., 48 F.4th 686, 708 (6th Cir. 2022) (non-student, non-employee claims).
It is not enough to say that Cannon and Jackson recognized an implied right of action under Title IX or that Bell recognized that Title IX permits agencies to demand that recipients of federal funding avoid discriminating against employees based on sex. "Because the private right of action under Title IX is judicially implied, we have a measure of latitude to shape a sensible remedial scheme that best comports with the statute." Gebser v. Lago Vista Indep. Sch. Dist., 524 U.S. 274, 284, 118 S.Ct. 1989, 141 L.Ed.2d 277 (1998). And when we consider whether a particular claim falls within the judicially implied right of action, we "examine the relevant statute to ensure that we do not fashion the scope of an implied right in a manner at odds with the statutory structure and purpose." Cf. id. So, to determine the appropriate scope of the implied right of action—and whether that scope includes employment discrimination—we look to the text of Title IX and its statutory context.
The text of Title IX provides that "[n]o person ... 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." Education Amendments of 1972, Pub. L. No. 92-318, § 901, 86 Stat. 235, 373 (June 23, 1972) (codified as amended at 20 U.S.C. § 1681) (emphasis added). True, the Supreme Court construed that language not to exclude employees from Title IX's administrative coverage. See Bell, 456 U.S. at 521, 530, 102 S.Ct. 1912. But nothing about that language indicates congressional intent to provide a private right of action to employees of educational institutions. In other words, although there can be little doubt that Title IX's focus on educational institutions and programs represents an intent to provide students new protections from sex discrimination, see Cannon, 441 U.S. at 680, 693-94, 709-10, 99 S.Ct. 1946, that connection is less obvious for employees.
Congress passed Title IX in June 1972 as part of a series of amendments to the Civil Rights Act of 1964 and other antidiscrimination statutes. The Equal Employment Opportunity Act of 1972 extended first Title VII's prohibition of employment discrimination to federal employees and educational institutions. Pub. L. No. 92-261, § 701-02, 86 Stat. 103, 103-04 (Mar. 24, 1972). That extension to educational institutions responded to "the widespread and compelling problem of invidious discrimination in educational institutions." Univ. of Pa. v. Equal Emp. Opp. Comm'n, 493 U.S. 182, 190, 110 S.Ct. 577, 107 L.Ed.2d 571 (1990). The amendment "expose[d]" employment decisions in educational institutions to the "same enforcement procedures applicable to other employment decisions" under Title VII—the "integrated, multistep enforcement procedure that enables the [Equal Employment Opportunity] Commission to detect and remedy instances of discrimination." Id. (citation and internal quotation marks omitted). And Title IX extended next Title VI's protections against discrimination in federally funded programs to cover sex discrimination in educational institutions. Education Amendments of 1972, Pub. L. No. 92-318, § 901, 86 Stat. 235, 373 (June 23, 1972). But Title IX's enforcement mechanism relied on the carrot and stick of federal funding to combat sex discrimination.
Passed only three months apart, the 1972 amendments evince a congressional intent to create a comprehensive antidiscrimination remedial scheme. As amended, Title VII and Title IX work in tandem: "whereas Title VII aims centrally to compensate victims of discrimination, Title IX focuses more on protecting individuals from discriminatory practices carried out by recipients of federal funds." Gebser, 524 U.S. at 287, 118 S.Ct. 1989 (emphasis added) (citation and internal quotation marks omitted); see also Lakoski, 66 F.3d at 757.
The two statutes accomplish these goals through different remedies. Title VII creates an administrative process that requires claimants first to file a charge of employment discrimination with the Equal Employment Opportunity Commission and then obtain a right to sue letter from the Commission before filing a complaint in a federal court. 42 U.S.C. §§ 2000e-4-2000e-5. Title IX, in contrast, empowers administrative agencies to condition federal funding on compliance with its anti-sex-discrimination mandate. 20 U.S.C. § 1682. Although it also provides an implied right of action for students—who would otherwise have no statutory remedy to enforce their substantive right under Title IX—the terms of the statute do not embrace a private right of action for employees.
It is unlikely that Congress intended Title VII's express private right of action and Title IX's implied right of action to provide overlapping remedies. Judicially implied rights of action require expressions of congressional intent to create both a right and a remedy. Sandoval, 532 U.S. at 286, 121 S.Ct. 1511. In the light of the complexity of Title VII's express remedial scheme, it would be anomalous to conclude that the implied right of action under Title IX would allow employees of educational institutions immediate access to judicial remedies unburdened by any administrative procedures. See Cent. Bank of Denver, N.A. v. First Interstate Bank of Denver, N.A., 511 U.S. 164, 180, 114 S.Ct. 1439, 128 L.Ed.2d 119 (1994) ("[I]t would be anomalous to impute to Congress an intention to expand the plaintiff class for a judicially implied cause of action beyond the bounds it delineated for comparable express causes of action." (citation and internal quotation marks omitted)); cf. Gebser, 524 U.S. at 289, 118 S.Ct. 1989. That conclusion becomes even weaker when we remember that Congress extended Title VII's remedies to employees of educational institutions only three months before enacting Title IX. And because Title IX was enacted under the Spending Clause, it is dubious that recipients of federal funds would understand that they have knowingly and voluntarily accepted potential liability for damages for claims of employment discrimination under Title IX when those kinds of claims are expressly provided for and regulated by Title VII. See Gebser, 524 U.S. at 286-87, 118 S.Ct. 1989 (distinguishing Title IX's "contractual framework" from Title VII's express prohibition and limiting the scope of available remedies under Title IX).
We hold that Title IX does not create an implied right of action for sex discrimination in employment. We reverse the order denying the motion to dismiss Crowther's claim of employment discrimination under Title IX and remand with instructions to dismiss that claim. And we affirm the dismissal of Joseph's claims of employment discrimination under Title IX.
THIS CASEBOOK contains a selection of U. S. Court of Appeals decisions that analyze, interpret and apply provisions of Title IX of the Education Amendments of 1972. Volume 1 of the casebook covers the District of Columbia Circuit and the First through the Fifth Circuit Court of Appeals. Volume 2 of the casebook covers the Sixth through the Eleventh Circuit Court of Appeals.