[PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________
FILED
No. 02-11303 U.S. COURT OF APPEALS
________________________ ELEVENTH CIRCUIT
OCT 21 2002
D. C. Docket No. 01-01866 CV-PT-S THOMAS K. KAHN
CLERK
RODERICK JACKSON,
Plaintiff-Appellant,
versus
BIRMINGHAM BOARD OF EDUCATION,
Defendant-Appellee.
________________________
Appeal from the United States District Court
for the Northern District of Alabama
_________________________
(October 21, 2002)
Before DUBINA, MARCUS and GOODWIN*, Circuit Judges.
*
Honorable Alfred T. Goodwin, U.S. Circuit Judge for the Ninth Circuit, sitting by
designation.
MARCUS, Circuit Judge:
Roderick Jackson appeals the dismissal of his complaint alleging that the
Birmingham Board of Education (the “Board”) retaliated against him in violation of
Title IX of the Education Amendments of 1972 (“Title IX”), 20 U.S.C. § 1681 et
seq., and the regulations implementing it. While employed by the Board as the coach
of a girl’s basketball team, Jackson complained about practices that he believed
discriminated against his team in violation of Title IX. The school, he maintains,
retaliated against him by removing him from his coaching position. The question
before us is whether Title IX implies a private right of action in favor of individuals
who, although not themselves the victims of gender discrimination, suffer retaliation
because they have complained about gender discrimination suffered by others. After
review of the text and structure of the statute, we can discern no congressional intent
in Title IX to create by implication such a private cause of action. Accordingly, we
affirm the dismissal of Jackson’s complaint.
I.
A.
We review de novo an order granting a motion to dismiss the complaint, see
McDonald v. S. Farm Bureau Life Ins. Co., 291 F.3d 718, 722 (11th Cir. 2002),
taking the facts alleged in the complaint as true and construing them in the light most
2
favorable to the plaintiff. See Covad Communications Co. v. Bellsouth Corp., 299
F.3d 1272, 1276 n.2 (11th Cir. 2002); Stephens v. Dep’t of Health & Human Servs.,
901 F.2d 1571, 1573 (11th Cir. 1990) (“On a motion to dismiss, the facts stated in
appellant’s complaint and all reasonable inferences therefrom are taken as true.”).
“A motion to dismiss is only granted when the movant demonstrates ‘beyond doubt
that the plaintiff can prove no set of facts in support of his claim which would entitle
him to relief.’” Harper v. Blockbuster Entm’t Corp., 139 F.3d 1385, 1387 (11th Cir.
1998) (quoting Conley v. Gibson, 355 U.S. 41, 45-46, 78 S. Ct. 99, 102, 2 L. Ed. 2d
80 (1957)).
B.
According to his complaint, Jackson was hired by the Board as a physical
education teacher and girls’ basketball coach on or about August 1993. He was
transferred to Ensley High School in August 1999, where his duties included
coaching the girls’ basketball team. While coaching at Ensley, Jackson came to
believe that the girls’ team was denied equal funding and equal access to sports
facilities and equipment. He complained to his supervisors about the apparent
differential treatment and, shortly thereafter, he began receiving negative work
evaluations. Jackson was ultimately relieved of his coaching duties in May 2001, but
remains employed as a tenured physical education teacher.
3
We assume for purposes of this appeal that the Board retaliated against Jackson
for complaining about perceived Title IX violations. The only question before us
today is whether Title IX provides Jackson a private right of action and a private
remedy against the Board for its allegedly retaliatory actions. Conceding that Title
IX creates no private rights of action expressly, see Cannon v. Univ. of Chicago, 441
U.S. 677, 683, 99 S. Ct. 1946, 1950, 60 L. Ed. 2d 560 (1979) (“The statute does not .
. . expressly authorize a private right of action by a person injured by a violation of §
901.”), Jackson claims that such a right is impliedly created by §§ 901 and 902 of
Title IX, 20 U.S.C. §§ 1681-82, in conjunction with 34 C.F.R. § 100.7(e), an anti-
retaliation regulation promulgated by the Department of Education to enforce Title
IX.
Section 901 of Title IX, with certain exceptions not at issue here, 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).1
1
In relevant part, § 901, 86 Stat. 373, as amended, as set forth in 20 U.S.C. § 1681, provides:
(a) Prohibition against discrimination; exceptions
No 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
4
In section § 902, Congress created and authorized an elaborate administrative
enforcement scheme for Title IX. See Davis v. Monroe County Bd. of Educ., 526
U.S. 629, 638-39, 119 S. Ct. 1661, 1669, 143 L. Ed. 2d 839 (1999).2 Pursuant to §
under any education program or activity receiving Federal financial
assistance . . .
(b) Preferential or disparate treatment because of imbalance in participation
or receipt of Federal benefits; statistical evidence of imbalance
Nothing contained in subsection (a) of this section shall be interpreted to
require any educational institution to grant preferential or disparate treatment
to the members of one sex on account of an imbalance which may exist with
respect to the total number or percentage of persons of that sex participating
in or receiving the benefits of any federally supported program or activity,
in comparison with the total number or percentage of persons of that sex in
any community, State, section, or other area: Provided, That this subsection
shall not be construed to prevent the consideration in any hearing or
proceeding under this chapter of statistical evidence tending to show that
such an imbalance exists with respect to the participation in, or receipt of the
benefits of, any such program or activity by the members of one sex.
(c) “Educational institution” defined
For purposes of this chapter an educational institution means any public or
private preschool, elementary, or secondary school, or any institution of
vocational, professional, or higher education, except that in the case of an
educational institution composed of more than one school, college, or
department which are administratively separate units, such term means each
such school, college, or department.
2
Section 902, 86 Stat. 374, as set forth in 20 U.S.C. § 1682, titled “Federal administrative
enforcement; report to Congressional committees,” provides in relevant part:
Each Federal department and agency which is empowered to extend Federal
financial assistance to any education program or activity . . . is authorized
and directed to effectuate the provisions of section 1681 of this title with
respect to such program or activity by issuing rules, regulations, or orders of
general applicability . . . . No such rule, regulation, or order shall become
effective unless and until approved by the President. Compliance with any
5
902, any federal department or agency that “is empowered to extend Federal financial
assistance to any education program or activity” is “authorized and directed to
effectuate the provisions of” § 901. 20 U.S.C. § 1682. To do so, agencies are
required to “issu[e] rules, regulations, or orders of general applicability,” which do
not “become effective unless and until approved by the President.” Id. The primary
enforcement mechanism that § 902 gives to agencies is cessation of federal funding:
“[c]ompliance with any requirement adopted pursuant to this section may be effected
. . . by the termination of or refusal to grant or to continue assistance . . . .” Id.
There are a number of procedural requirements that must be met, however,
before an agency may cut off funding. First, an agency must attempt to obtain
voluntary compliance with the requirements it has imposed to enforce § 901: “no . . .
requirement adopted pursuant to this section may be effected (1) by the
termination of or refusal to grant or to continue assistance under such
program or activity to any recipient as to whom there has been an express
finding on the record, after opportunity for hearing, of a failure to comply
with such requirement . . . , or (2) by any other means authorized by law:
Provided, however, That no such action shall be taken until the department
or agency concerned has advised the appropriate person or persons of the
failure to comply with the requirement and has determined that compliance
cannot be secured by voluntary means. In the case of any action terminating,
or refusing to grant or continue, assistance because of failure to comply with
a requirement imposed pursuant to this section, the head of the Federal
department or agency shall file with the committees of the House and Senate
having legislative jurisdiction over the program or activity involved a full
written report of the circumstances and the grounds for such action. No such
action shall become effective until thirty days have elapsed after the filing of
such report.
6
action shall be taken until the department or agency concerned has advised the
appropriate person or persons of the failure to comply with the requirement and has
determined that compliance cannot be secured by voluntary means.” Id. Second, if
an agency fails to obtain voluntary compliance, an agency must hold a hearing
regarding any alleged regulatory violation, because only a “recipient as to whom
there has been an express finding on the record, after opportunity for hearing, of a
failure to comply with” a regulation enacted pursuant to § 902 may have its funding
cut off. Id. Third, even after making an “express finding” of noncompliance, an
agency may not cut off funding unless it files “a full written report” to “the
committees of the House and Senate having legislative jurisdiction over the program
or activity involved” and waits “until thirty days have elapsed after the filing of such
report.” Id.3
3
In addition to the congressional review required by § 902, § 903 of Title IX, 86 Stat. 374,
as set forth in 20 U.S.C. § 1683, provides for judicial review of “[a]ny department or agency action
taken pursuant to section [902].” 20 U.S.C. § 1683. Section 903 provides in full that:
Any department or agency action taken pursuant to section 1682 of this title
shall be subject to such judicial review as may otherwise be provided by law
for similar action taken by such department or agency on other grounds. In
the case of action, not otherwise subject to judicial review, terminating or
refusing to grant or to continue financial assistance upon a finding of failure
to comply with any requirement imposed pursuant to section 1682 of this
title, any person aggrieved (including any State or political subdivision
thereof and any agency of either) may obtain judicial review of such action
in accordance with chapter 7 of Title 5, and such action shall not be deemed
committed to unreviewable agency discretion within the meaning of section
701 of that title.
7
Using the authority vested in it by § 902, the Department of Education
promulgated 34 C.F.R. § 100.7(e),4 which prohibits retaliation against anyone who
complains of a Title IX violation:
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 of
Title IX] of the Act or this part, or because he has made a complaint,
testified, assisted, or participated in any manner in an investigation,
proceeding or hearing under this part.
34 C.F.R. § 100.7(e) (emphasis added).
Jackson urges that a private right of action ought to be implied in his favor
from the statute and, more particularly, from 34 C.F.R. § 100.7(e). We are
unpersuaded. For the reasons we make clear below, we hold that neither Title IX
itself nor 34 C.F.R. § 100.7(e) implies a private right of action for retaliation in
Jackson’s favor.
C.
Our analysis of Jackson’s claim is governed in substantial measure by the
Supreme Court’s recent decision in Alexander v. Sandoval, 532 U.S. 275, 121 S. Ct.
4
34 C.F.R. § 100.7(e) was originally promulgated by the Department of Justice to enforce
Title VI of the Civil Rights Act of 1964 (“Title VI”), 78 Stat. 252, as amended, 42 U.S.C. § 200d
et seq. The Department of Education has incorporated by reference § 100.7(e) and other regulations
enforcing Title VI to enforce Title IX. See 34 C.F.R. § 106.71.
8
1511, 149 L. Ed. 2d 517 (2001), which we explicate fully for three reasons. First,
Sandoval distills and clarifies the approach we are obliged to follow in determining
whether to imply a private right of action from a statute.5 Second, Sandoval resolved
a claim under Title VI of the Civil Rights Act of 1964 (“Title VI”), 78 Stat. 252, as
5
The Supreme Court implied private rights of action with a relatively free hand, see J.I. Case
Co. v. Borak, 377 U.S. 426, 433-34, 84 S. Ct. 1555, 1560, 12 L. Ed. 2d 423 (1964), until its decision
in Cort v. Ash, 422 U.S. 66, 95 S. Ct. 2080, 45 L. Ed. 2d 26 (1975). In Cort, the Court articulated
four factors that must be considered before a private right of action may be implied:
First, is the plaintiff “one of the class for whose especial benefit the statute was
enacted” -- that is, does the statute create a federal right in favor of the plaintiff?
Second, is there any indication of legislative intent, explicit or implicit, either to
create such a remedy or to deny one? Third, is it consistent with the underlying
purposes of the legislative scheme to imply such a remedy for the plaintiff? And
finally, is the cause of action one traditionally relegated to state law, in an area
basically the concern of the States, so that it would be inappropriate to infer a cause
of action based solely on federal law?
422 U.S. at 78, 95 S. Ct. at 2088 (quoting Texas & Pac. Ry. Co. v. Rigsby, 241 U.S. 33, 39, 36 S.
Ct. 482, 484, 60 L. Ed. 874 (1916)) (additional citations omitted). Since the late 1970’s, the Court
has gradually receded from reliance on three of these four factors, focusing more and more
exclusively on legislative intent alone. See, e.g., Transamerica Mortgage Advisors, Inc. v. Lewis,
444 U.S. 11, 15-16, 100 S. Ct. 242, 245, 62 L. Ed. 2d 146 (1979) (“While some opinions of the
Court have placed considerable emphasis upon the desirability of implying private rights of action
in order to provide remedies thought to effectuate the purposes of a given statute, what must
ultimately be determined is whether Congress intended to create the private remedy asserted . . . .”)
(citations omitted); Touche Ross & Co. v. Redington, 442 U.S. 560, 575, 99 S. Ct. 2479, 2489, 61
L. Ed. 2d 82 (1979) (the “central inquiry” is “whether Congress intended to create, either expressly
or by implication, a private cause of action”); Thompson v. Thompson, 484 U.S. 174, 179, 108 S.
Ct. 513, 516, 98 L. Ed. 2d 512 (1988) (“The intent of Congress remains the ultimate issue . . . .”).
Sandoval is the culmination of this trend, announcing that “[s]tatutory intent . . . is determinative.”
532 U.S. at 286, 121 S. Ct. at 1519; see also Gonzaga Univ. v. Doe, -- U.S. --, 122 S. Ct. 2268,
2276-77, 153 L. Ed. 2d 309 (2002) (applying Sandoval mode of analysis). The other three Cort
factors remain relevant only insofar as they provide evidence of Congress’s intent. See Thompson,
484 U.S. at 189, 108 S. Ct. at 521 (Scalia, J., concurring in the judgment) (The Court has
“convert[ed] one of [the Cort test’s] four factors (congressional intent) into the determinative factor,
with the other three merely indicative of its presence or absence.”) (emphasis in original).
9
amended, 42 U.S.C. § 2000d et seq., which is the model for Title IX and whose
language Title IX copies nearly verbatim. See Cannon, 441 U.S. at 694-95, 99 S. Ct.
at 1956-57 (“Title IX was patterned after Title VI . . . . Except for the substitution of
the word ‘sex’ in Title IX to replace the words ‘race, color, or national origin’ in Title
VI, the two statutes use identical language to describe the benefited class.”); see also
id. at 694-696 nn.16 & 19, 99 S. Ct. at 1956-57 nn. 16 & 19 (setting forth the
legislative history of Title IX, which, inter alia, notes that “[t]his is identical
language, specifically taken from Title VI”). Because we therefore read Titles VI and
IX in pari materia, Sandoval’s interpretation of Title VI powerfully informs our
reading of Title IX. Third, like Jackson, the plaintiffs in Sandoval relied on a
regulation promulgated to enforce Title VI as the basis for implying a private right of
action.
In Sandoval, the Supreme Court held that Title VI does not imply a right of
action for private litigants to sue recipients of federal funds for “disparate impact”
violations. See Sandoval, 532 U.S. at 293, 121 S. Ct. at 1523. At issue in Sandoval
was the claim that the Alabama Department of Public Safety’s policy of
administering all tests for drivers’ licenses in English only has a discriminatory effect
on racial minorities. Section 601 of Title VI provides that “[n]o person in the United
States shall, on the ground of race, color, or national origin, be excluded from
10
participation in, be denied the benefits of, or be subjected to discrimination under any
program or activity receiving Federal financial assistance.” 42 U.S.C. § 2000d.
Recognizing that Title VI itself reaches only acts of intentional discrimination, see
Alexander v. Choate, 469 U.S. 287, 293, 105 S. Ct. 712, 716, 83 L. Ed. 2d 661
(1985), the plaintiff in Sandoval alleged that Alabama’s restriction violated 28 C.F.R.
§ 42.104(b)(2), a Department of Justice regulation promulgated pursuant to § 602 of
Title VI,6 that forbids recipients of federal funding from “utiliz[ing] criteria or
methods of administration which have the effect of subjecting individuals to
discrimination because of their race, color, or national origin . . . .” 28 C.F.R. §
42.104(b)(2) (1999) (emphasis added).7
6
Section 602 authorizes and directs “[e]ach Federal department and agency which is
empowered to extend Federal financial assistance to any program or activity . . . to effectuate the
provisions of [§ 601] with respect to such program or activity by issuing rules, regulations, or orders
of general applicability . . . .” 42 U.S.C. § 2000d-1.
7
28 C.F.R. § 42.104(b)(2) provides in full that:
A recipient, in determining the type of disposition, services, financial aid, benefits,
or facilities which will be provided under any such program, or the class of
individuals to whom, or the situations in which, such will be provided under any
such program, or the class of individuals to be afforded an opportunity to participate
in any such program, may not, directly or through contractual or other arrangements,
utilize criteria or methods of administration which have the effect of subjecting
individuals to discrimination because of their race, color, or national origin, or have
the effect of defeating or substantially impairing accomplishment of the objectives
of the program as respects individuals of a particular race, color, or national origin.
The Department of Transportation has promulgated an identical regulation. See 49 C.F.R. §
21.5(b)(2).
11
The Court in Sandoval held that, although a private cause of action exists to
enforce § 601, see 532 U.S. at 279, 121 S. Ct. at 1516 (“private individuals may sue
to enforce § 601 of Title VI and obtain both injunctive relief and damages”), that
right plainly does not extend to the enforcement of disparate impact regulations
promulgated under §602. See Sandoval, 532 U.S. at 293, 121 S. Ct. at 1523.
In reaching this decision, the Supreme Court stressed that legislative intent is
the only basis upon which a private right of action may be inferred:
Like substantive federal law itself, private rights of action to enforce
federal law must be created by Congress. The 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. Statutory intent on this latter point is determinative. Without
it, a cause of action does not exist and courts may not create one, no
matter how desirable that might be as a policy matter, or how
compatible with the statute. Raising up causes of action where a
statute has not created them may be a proper function for common-
law courts, but not for federal tribunals.
Id. at 286-87, 121 S. Ct. at 1519-1520 (citations and quotations omitted and emphasis
added); see also Gonzaga University v. Doe, -- U.S. --, 122 S. Ct. 2268, 2276, 153 L.
Ed. 2d 309 (2002) (The inquiry “simply require[s] a determination as to whether or
not Congress intended to confer individual rights upon a class of beneficiaries.”).
Sandoval also clearly delimits the sources that are relevant to our search for
legislative intent. First and foremost, we look to the statutory text for “‘rights-
12
creating’ language.” Sandoval, 532 U.S. at 288, 121 S. Ct. at 1521; see also Gonzaga
University, 122 S. Ct. at 2275 n.3 (“Where a statute does not include this sort of
explicit ‘right- or duty-creating language’ we rarely impute to Congress an intent to
create a private right of action.”); Cannon, 441 U.S. at 690 n.13, 99 S. Ct. at 1954
n.13 (“Not surprisingly, the right- or duty-creating language of the statute has
generally been the most accurate indicator of the propriety of implication of a cause
of action.”). “Rights-creating language” is language “explicitly conferr[ing] a right
directly on a class of persons that include[s] the plaintiff in [a] case,” Cannon, 441
U.S. at 690 n.13, 99 S. Ct. at 1954 n.13, or language identifying “the class for whose
especial benefit the statute was enacted.” Tex. & Pac. Ry. Co. v. Rigsby, 241 U.S.
33, 39, 36 S. Ct. 482, 484, 60 L. Ed. 874 (1916), quoted in Cannon, 441 U.S. at 689
n.10, 99 S. Ct. at 1953 n.10. In contrast, “statutory language customarily found in
criminal statutes . . . and other laws enacted for the protection of the general public,”
or a statute written “simply as a ban on discriminatory conduct by recipients of
federal funds,” provides “far less reason to infer a private remedy in favor of
individual persons.” Cannon, 441 U.S. at 690-93, 99 S. Ct. at 1954-55.
Second, we examine the statutory structure within which the provision in
question is embedded. If the statutory structure provides a discernible enforcement
mechanism, Sandoval teaches that we ought not imply a private right of action
13
because “[t]he express provision of one method of enforcing a substantive rule
suggests that Congress intended to preclude others.” Sandoval, 532 U.S. at 290, 121
S. Ct. at 1521-22.8
Third, if (and only if) statutory text and structure have not conclusively
resolved whether a private right of action should be implied, we turn to the legislative
history and context within which a statute was passed. See Sandoval, 532 U.S. at
288, 121 S. Ct. at 1520 (“In determining whether statutes create private rights of
action, as in interpreting statutes generally, legal context matters only to the extent it
clarifies text.”) (citation omitted).9 We examine legislative history with a skeptical
eye, because “[t]he bar for showing legislative intent is high. ‘Congressional intent to
create a private right of action will not be presumed. There must be clear evidence of
8
See also Karahalios v. Nat'l Fed'n of Fed. Employees, 489 U.S. 527, 533, 109 S. Ct. 1282,
1286-87, 103 L. Ed. 2d 539 (1989) (“[I]t is . . . ‘an elemental canon’ of statutory construction that
where a statute expressly provides a remedy, courts must be especially reluctant to provide
additional remedies.”) (quoting Transamerica Mortgage Advisors, Inc. v. Lewis, 444 U.S. 11, 19,
100 S. Ct. 242, 246, 62 L. Ed. 2d 146 (1979)); McDonald, 291 F.3d at 725 (“When Congress creates
certain remedial procedures, we are, ‘in the absence of strong indicia of contrary congressional
intent, . . . compelled to conclude that Congress provided precisely the remedies it considered
appropriate.’”) (alteration in original) (quoting Karahalios, 489 U.S. at 533, 109 S. Ct. at 1286-87
(quoting Middlesex County Sewerage Auth. v. Nat'l Sea Clammers Ass'n, 453 U.S. 1, 15, 101 S. Ct.
2615, 2623, 69 L. Ed. 2d 435 (1981))).
9
See also Thompson, 484 U.S. at 179, 107 S. Ct. at 516 (“Congress’ ‘intent may appear
implicitly in the language or structure of the statute, or in the circumstances of its enactment.’”)
(quoting Transamerica Mortgage Advisors, 444 U.S. at 18, 100 S. Ct. at 246); McDonald, 291 F.3d
at 723 (“Legislative history can be taken into account where relevant, but the central focus of
judicial inquiry must be the ‘text and structure’ of the statute itself.”) (citation omitted).
14
Congress’s intent to create a cause of action.’” McDonald, 291 F.3d at 723 (quoting
Baggett v. First Nat’l Bank of Gainesville, 117 F.3d 1342, 1345 (11th Cir. 1997)).
Moreover, the legislative history of a statute that is itself unclear about whether a
private right of action is implied is unlikely to provide much useful guidance. See
Cannon, 441 U.S. at 694, 99 S. Ct. at 1956 (“[T]he legislative history of a statute that
does not expressly create or deny a private remedy will typically be equally silent or
ambiguous on the question.”).
Relying exclusively on the text and structure of Title VI, see Sandoval, 532
U.S. at 288, 121 S. Ct. at 1520 (“We . . . begin (and find that we can end) our search
for Congress’s intent with the text and structure of Title VI.”), the Court in Sandoval
concluded that Title VI implies no private right to sue for actions not motivated by
discriminatory intent that result in a disparate impact. See id. at 293, 121 S. Ct. at
1523. Examining § 601, the Court determined that it does not imply a private right of
action for disparate impact claims, because, as noted above, Ҥ 601 prohibits only
intentional discrimination.” Id. at 280, 121 S. Ct. at 1516.
The Court turned next to § 602, which, like § 902 of Title IX, authorizes
federal agencies “to effectuate the provisions of [§ 601] . . . by issuing rules,
regulations, or orders of general applicability.” 42 U.S.C. § 2000d-1. The Court
concluded that this provision does not imply a private right of action. It first
15
observed that “‘rights-creating’ language . . . is completely absent from § 602.”
Sandoval, 532 U.S. at 288, 121 S. Ct. at 1521. Indeed, “[f]ar from displaying
congressional intent to create new rights, § 602 limits agencies to ‘effectuat[ing]’
rights already created by § 601.” Id. at 289, 121 S. Ct. at 1521 (second alteration in
original) (citation omitted). Further, the Court noted,
the focus of § 602 is twice removed from the individuals who will
ultimately benefit from Title VI’s protection. Statutes that focus on
the person regulated rather than the individuals protected create “no
implication of an intent to confer rights on a particular class of
persons.” Section 602 is yet a step further removed: it focuses
neither on the individuals protected nor even on the funding recipients
being regulated, but on the agencies that will do the regulating.
Id. (quoting California v. Sierra Club, 451 U.S. 287, 294, 101 S. Ct. 1775, 1779, 68
L. Ed. 2d 101 (1981)); see also Touche Ross & Co. v. Redington, 442 U.S. 560, 576,
99 S. Ct. 2479, 2489, 61 L. Ed. 2d 82 (1979) (“The question whether Congress . . .
intended to create a private right of action [is] definitely answered in the negative”
where a “statute by its terms grants no private rights to any identifiable class[.]”).
The Court thus concluded that, “[s]o far as we can tell, this authorizing portion of §
602 reveals no congressional intent to create a private right of action.” Sandoval, 532
U.S. at 289, 121 S. Ct. at 1521.
The Court also found that “the methods § 602 . . . provide[s] for enforcing its
authorized regulations . . . suggest” an intent not to create a private right of action.
16
Id. Section 602 provides for extensive administrative enforcement, as well as
“elaborate restrictions” of that enforcement, which “tend[s] to contradict a
congressional intent to create privately enforceable rights through § 602 itself.” Id. at
290, 121 S. Ct. at 1521. In fact, the Court continued, “[t]he express provision of one
method of enforcing a substantive rule suggests that Congress intended to preclude
others.” Id. at 290, 121 S. Ct. at 1522.10
Having determined that § 601 does not imply a private right of action for
disparate impact claims and that § 602 does not imply any private right of action at
all, the Court concluded that the regulations promulgated by agencies with the power
granted to them by § 602 to enforce the provisions of § 601 also cannot be the basis
of an implied private right of action for disparate impact claims:
Language in a regulation may invoke a private right of action that
Congress through statutory text created, but it may not create a right
that Congress has not. Thus, when a statute has provided a general
authorization for private enforcement of regulations, it may perhaps
be correct that the intent displayed in each regulation can determine
whether or not it is privately enforceable. But it is most certainly
10
The Court observed that the suggestion created by an extant enforcement scheme that
Congress did not intend to create another enforcement mechanism is “[s]ometimes . . . so strong that
it precludes a finding of congressional intent to create a private right of action, even though other
aspects of the statute (such as language making the would-be plaintiff ‘a member of the class for
whose benefit the statute was enacted’) suggest the contrary.” Id. at 290, 121 S. Ct. at 1522 (quoting
Massachusetts Mut. Life Ins. Co. v. Russell, 473 U.S., 134, 145, 105 S. Ct. 3085, 3092, 87 L. Ed.
2d 96 (1985)). We need not address any potential tension between the language of a statute and its
structure, however, because Jackson’s claim creates no conflict between Title IX’s text and its
structure.
17
incorrect to say that language in a regulation can conjure up a private
cause of action that has not been authorized by Congress. Agencies
may play the sorcerer’s apprentice but not the sorcerer himself.
Id. at 291, 121S. Ct. at 1522 (citations and quotations omitted); see also Touche Ross,
442 U.S. at 577 n.18, 99 S. Ct. at 2489 n.18 (“[T]he language of the statute and not
the rules must control”). Thus, while regulations that merely interpret a statute may
provide evidence of what private rights Congress intended to create, see Sandoval,
532 U.S. at 284, 121 S. Ct. at 1518 (“A Congress that intends the statute to be
enforced through a private cause of action intends the authoritative interpretation of
the statute to be so enforced as well.”), “regulations that go beyond what the statute
itself requires” are not enforceable through a private right of action. Id. at 293 n.8,
121 S. Ct. at 1523 n.8. Sandoval thus concluded there is no private right of action to
pursue disparate impact claims under Title VI.
II.
With this template in front of us, we turn to Jackson’s contention that Title IX,
in conjunction with 34 C.F.R. § 100.7(e), implies a private right of action to remedy
the type of retaliation he claims to have suffered.
As noted above, Title IX does not expressly provide any private right of action.
See supra at __. In Cannon v. Univ. of Chicago, 441 U.S. 677, 688-89, 99 S. Ct.
1946, 1953, 60 L. Ed. 2d 560 (1979), however, the Supreme Court held that Title IX
18
implies a private right of action in favor of direct victims of gender discrimination. A
woman who was denied admission by two medical schools brought suit against the
schools under Title IX, alleging that their admissions policies discriminated against
women. Carefully applying the four-part test set out in Cort v. Ash, 422 U.S. 66, 78,
95 S. Ct. 2080, 2088, 45 L. Ed. 2d 26 (1975), see supra note __,11 the Court found
11
The Court first noted that the text of § 901 “explicitly confers a benefit on persons
discriminated against on the basis of sex.” Cannon, 441 U.S. at 694, 99 S. Ct. at 1956. That is, Title
IX contains precisely the type of “rights-creating language” in favor of an identifiable class --
victims of gender discrimination -- that militates in favor of implying a private right of action. The
second Cort factor, the Court likewise found, cuts in favor of finding a private right of action,
because at the time of Title IX’s passage, Title VI -- on which Title IX was modeled, see supra at
__ -- was understood to imply a private right of action. See Cannon, 441 U.S. at 696, 99 S. Ct. at
1957 (“In 1972 when Title IX was enacted, the critical language in Title VI had already been
construed as creating a private remedy.”). Congress, the Court reasoned, was therefore aware that
Title IX would be interpreted similarly and tacitly consented to this interpretation.
Under the third Cort factor, the Court gleaned from Title IX’s legislative history that it was
enacted to promote “two related, but nevertheless somewhat different, objectives:” “to avoid the use
of federal resources to support discriminatory practices” and “to provide individual citizens effective
protection against those practices.” Cannon, 441 U.S. at 704, 99 S. Ct. at 1961; see also id. at704
n.36, 99 S. Ct. at 1961 n.36 (discussing legislative history of Title IX); Gebser v. Lago Vista Indep.
Sch. Dist., 524 U.S. 274, 286, 118 S. Ct. 1989, 1997, 141 L. Ed. 2d 277 (1998). The Court observed
that the first of these objectives is “generally served by the statutory procedure for the termination
of federal financial support for institutions engaged in discriminatory practices” set forth in § 902.
Cannon, 441 U.S. at 704, 99 S. Ct. at 1961. Cutting off federal funding is, however, a “severe”
remedy of “last resort” that “often may not provide an appropriate means of accomplishing the
second purpose . . . .” Id. at 704-705 & n.38, 99 S. Ct. at 1961-62 & n.38. The Court thus
concluded that “[t]he award of individual relief to a private litigant who has prosecuted her own suit
is not only sensible but is also fully consistent with -- and in some cases even necessary to -- the
orderly enforcement of the statute.” Id. at 705-06, 99 S. Ct. at 1962.
Finding the fourth Cort factor also favored implying a private right of action, the Court in
Cannon concluded that “all of [the Cort factors] support the same result. Not only the words and
history of Title IX, but also its subject matter and underlying purposes, counsel implication of a
cause of action in favor of private victims of discrimination.” Id. at 709, 99 S. Ct. at 1964 (emphasis
added).
19
that Title IX implies a private right of action “in favor of private victims of
discrimination.” Id. at 709, 99 S. Ct. at 1964 (emphasis added). The Court implied
this private right of action in the plaintiff’s favor based, not on § 902 or the
regulations promulgated pursuant to it, but exclusively on the text, structure, and
legislative history of § 901.
The Supreme Court has plainly receded from the four-part Cort analysis that
animated Cannon, focusing instead only on congressional intent to create a private
right of action. See supra note __. But the Court has not overturned the specific
holding of Cannon, and so a direct victim of gender discrimination still may pursue a
private right of action under Title IX to remedy the discrimination she has suffered.
In Cannon, however, the Supreme Court had no occasion to address the
questions before us today: whether Title IX implies a private right of action to
redress retaliation resulting from Title IX complaints or whether individuals other
than direct victims of gender discrimination have any private rights under Title IX at
all. Nor has any subsequent decision of the Supreme Court or this Court resolved
these questions. We therefore face the basic question of whether to imply a private
right of action and a private remedy for retaliation in favor of an individual who is
not himself a direct victim of gender discrimination. After reading Title IX in the
manner required by Sandoval, we can find nothing in the language or structure of
20
Title IX creating a private cause of action for retaliation, let alone a private cause of
action for retaliation against individuals other than direct victims of gender
discrimination.
A.
We begin with the text of § 901. See supra at __. Section 901 aims to prevent
and redress gender discrimination and does so by requiring 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); see also
Cannon, 441 U.S. at 704, 99 S. Ct. at 1961. Nothing in the text indicates any
congressional concern with retaliation that might be visited on those who complain of
Title IX violations. Indeed, the statute makes no mention of retaliation at all.12 Our
12
In contrast, when Congress wished to prohibit retaliation against individuals who complain
about employment discrimination under Title VII of the Civil Rights Act of 1964 (“Title VII”), 78
Stat. 253, as amended, 42 U.S.C. § 2000e et seq., it did so explicitly as part of the statute itself. See
42 U.S.C. § 2000e-3(a). The anti-retaliation section of Title VII provides in pertinent part that it
shall be an unlawful employment practice for any employer to retaliate against an employee or an
applicant for employment “because he has opposed any practice made an unlawful employment
practice by this subchapter, or because he has made a charge, testified, assisted, or participated in
any manner in an investigation, proceeding, or hearing under this subchapter.” 42 U.S.C. § 2000e-
3(a). We recognize that Title VII is of limited usefulness in interpreting Title IX, both because Title
VII was enacted pursuant to Congress’s Commerce power, while both Title VI and IX were enacted
pursuant to Congress’s Spending Clause power, and because the text and structure of Title VII are
markedly different than that of Title IX. See Gebser, 524 U.S. at 286, 118 S. Ct. 1989.
Nonetheless, the fact that Congress felt required to prohibit retaliation expressly under Title VII may
indicate that Congress did not intend the concept of “discrimination” in Title IX to be read
sufficiently broadly to cover retaliation.
21
task, as Sandoval makes clear, is to interpret what Congress actually said, not to
guess from congressional silence what it might have meant. The absence of any
mention of retaliation in Title IX therefore weighs powerfully against a finding that
Congress intended Title IX to reach retaliatory conduct. See Litman v. George
Mason Univ., 156 F. Supp. 2d 579, 584-85 (E.D. Va. 2001) (“Congress was aware
that it could create a right of action for retaliatory treatment, and it did so in Title VII;
it did not do so in Title IX.”).
Section 902 of Title IX, see supra note __, does not vary our conclusion that
Congress did not intend Title IX to prohibit retaliation. Section 902, like its twin §
602, is devoid of “rights-creating” language of any kind -- whether against gender
discrimination, retaliation, or any other kind of harm. Instead, again like § 602, it
explicitly directs and authorizes federal agencies to regulate recipients of federal
funding to effectuate the anti-discrimination provisions of § 901. As detailed above,
see supra at __, it provides an enforcement mechanism -- the cessation of federal
funding -- and imposes “elaborate restrictions on agency enforcement.” Sandoval,
532 U.S. at 290, 121 S. Ct. at 1521. These restrictions include requirements that
agencies first attempt to attain voluntary compliance, that agencies hold a hearing and
make express findings of noncompliance before cutting off funding, and that agencies
provide Congress thirty days to consider any proposed funding cut off. See 20
22
U.S.C. § 1682. That § 902 is thus concerned exclusively with the power of federal
agencies to regulate recipients of federal funds renders its focus, like §602’s,“twice
removed” from any consideration of what harm Title IX is meant to remedy.
Sandoval, 532 U.S. at 289, 121 S. Ct. at 1521. Section 902 plainly does not disclose
any congressional intent to imply a private right of action of any kind, let alone
against retaliation.
Moreover, as Sandoval teaches, Section 902’s provision of an administrative
enforcement mechanism, coupled with § 903’s provision of judicial review, strongly
counsels against inferring a private right of action against retaliation, because “[t]he
express provision of one method of enforcing a substantive rule suggests that
Congress intended to preclude others.” Sandoval, 532 U.S. at 290, 121 S. Ct. at
1521-22.
We conclude, much like the Supreme Court did in Sandoval, that nothing in
the text or structure of §§ 901 and 902 yields the conclusion that Congress intended
to imply a private cause of action for retaliation. While we “have a measure of
latitude to shape a sensible remedial scheme that best comports with the statute”
when determining the scope of a judicially implied right and the remedies it makes
available, Gebser v. Lago Vista Indep. Sch. Dist., 524 U.S. 274, 284, 118 S. Ct. 1989,
1996, 141 L. Ed. 2d 277 (1998), we are not free to craft a right that there is no
23
evidence Congress intended to create. See id. (“[W]e generally 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.”); see also id. at 285, 118 S. Ct. at
1997 (We must “‘attempt to infer’” from all available indicia “‘how the [1972]
Congress would have addressed the issue had the . . . action been included as an
express provision in the’ statute.”) (alterations in original) (quoting Central Bank of
Denver, N.A. v. First Interstate Bank of Denver, N.A., 511 U.S. 164, 178, 114 S. Ct.
1439, 1448, 128 L. Ed. 2d 119 (1994)); Sandoval, 532 U.S. at 286, 121 S. Ct. at 1519
(“Statutory intent . . . is determinative.”). Our review of §§ 901 and 902 unearths
absolutely no indication that Congress intended Title IX to prevent or redress
retaliation. Because the text thus evinces no concern with retaliation, we are not free
to imply a private right of action to redress it.
Nor does 34 C.F.R. § 100.7(e)’s prohibition on retaliation, see supra at __,
imply such a private right of action or create a private remedy. It is true, as Jackson
asserts, that § 100.7(e) identifies a class to which it extends its protection: “any
individual” retaliated against for “complain[ing], testif[ying], assist[ing], or
participat[ing] in any manner in an investigation, proceeding or hearing” undertaken
to enforce Title IX. This regulatory identification of a protected class cannot be
taken, however, as “rights-creating,” for the simple reason that “[l]anguage in a
24
regulation . . . may not create a right that Congress has not.” Sandoval, 532 U.S. at
291, 121 S. Ct. at 1522. Quite simply, if Congress did not enact a statute creating a
private cause of action, we cannot find its intent to do so in this regulation. Because
Congress has not created a right through Title IX to redress harms resulting from
retaliation, 34 C.F.R. § 100.7(e) may not be read to create one either.13
B.
Moreover, even if Title IX did aim to prevent and remedy retaliation for
complaining about gender discrimination, Jackson is plainly is not within the class
meant to be protected by Title IX. As Cannon held, § 901 identifies victims of
gender discrimination as the class it aims to benefit, and so implies a private right of
action in their favor. Nowhere in the text, however, is any mention made of
individuals other than victims of gender discrimination. Gender discrimination
13
In our only previous encounter with the question, we expressly declined to resolve whether
34 C.F.R. § 100.7(e) creates a private right of action for retaliation. See Paisey v. Vitale, 807 F.2d
889, 895 n.8 (11th Cir. 1986) (“Paisey . . . makes the argument that . . . he is entitled to an injunction
as part of his relief pursuant to his private cause of action against Nova for violation of the
anti-retaliation regulation. That issue is not properly before us.”). Before Sandoval, the Fourth
Circuit had determined that a victim of gender discrimination does have a private right of action for
retaliation. See Preston v. Commonwealth of Va. ex rel. New River Cmty. Coll., 31 F.3d 203, 206
(4th Cir. 1994) (“Retaliation . . . for filing a claim of gender discrimination is prohibited under Title
IX.”). The only two cases that have resolved a claim for retaliation under Title IX after Sandoval
-- both of which were decided by district courts -- have both reached the oppposite conclusion. See
Atkinson v. Lafayette Coll., 2002 WL 123449 at *11 (E.D. Pa. Jan. 29, 2002) (“[I]n the wake of
Sandoval, there is no private right of action under Title IX to enforce the anti-retaliation regulation.
. . .”); Litman, 156 F. Supp. 2d at 584-85 (“Congress was aware that it could create a right of action
for retaliatory treatment, and it did so in Title VII; it did not do so in Title IX.”).
25
affects not only its direct victims, but also those who care for, instruct, or are
affiliated with them -- parents, teachers, coaches, friends, significant others, and
coworkers. Congress could easily have provided some protection or form of relief to
these other interested individuals had it chosen to do so -- especially for a harm as
plainly predictable as the retaliation here at issue14 -- but it did not do so expressly.
Nor does any language in § 902 evince an intent to protect anyone other than direct
victims of gender discrimination. Indeed, as with § 602 of Title VI, the focus of §
902 is “twice removed” from victims of gender discrimination, Sandoval, 532 U.S. at
289, 121 S. Ct. at 1521, and, consequently, thrice-removed from individuals like
Jackson who are not themselves the victims of gender discrimination. Here, there is
quite simply no indication of any kind that Congress meant to extend Title IX’s
coverage to individuals other than direct victims of gender discrimination. We are
not free to extend the scope of Title’s IX protection beyond the boundaries Congress
14
In an analogous statutory context, claims for retaliation are often raised by individuals who
are not themselves disabled but are affiliated with disabled individuals under § 504 of the
Rehabilitation Act, 29 U.S.C. § 794. See, e.g., Weber v. Cranston Sch. Comm., 212 F.3d 41, 43-44
(1st Cir. 2000) (parent); Hoyt v. St. Mary’s Rehab. Ctr., 711 F.2d 864, 865 (8th Cir. 1983) (friend);
Lillbask v. Sergi, 193 F.Supp. 2d 503, 515 (D. Conn. 2002) (guardian); Whitehead v. Sch. Bd. for
Hillsborough County, 918 F.Supp. 1515, 1522 (M.D. Fla. 1996) (parents); Ross v. Allen, 515
F.Supp. 972, 976(S.D.N.Y. 1981) (school psychologist). Courts have generally found that a private
right exists to redress this type of retaliation, but this is in large part because the statutory text of the
Rehabilitation Act explicitly extends its remedies to “any person aggrieved by an act or failure to
act by any recipient of Federal assistance . . . under section 794 of this title.” 29 U.S.C. § 794a(a)(2)
(emphasis added).
26
meant to establish, and we thus may not read Title IX so broadly as to cover anyone
other than direct victims of gender discrimination.
We thus hold that Title IX does not imply a private right of action in favor of
individuals who, although not themselves the victims of gender discrimination, suffer
retaliation because they have complained about gender discrimination suffered by
others.15 Statutory intent remains the touchstone of our analysis. Without it -- and
the mandate of Sandoval is crystal clear on this point -- we simply cannot imply a
private right of action, no matter how desirable the result may be. And our review of
15
As far as we can discern, we are the first court of appeals to resolve this question after the
Supreme Court rendered its opinion in Sandoval. Our decision today is, we note, contrary to the
lone circuit decision that addressed this question prior to Sandoval, Lowrey v. Texas A & M Univ.
Sys., 117 F.3d 242 (5th Cir. 1997). The Fifth Circuit held in Lowrey that 34 C.F.R. § 100.7(e) can
of its own force provide the basis for an implied private right of action for retaliation suffered by
individuals not themselves the victims of gender discrimination. See id. at 253. To reach this
conclusion, it relied on an earlier Fifth Circuit opinion that had observed in passing while construing
the Wagner-Peyser Act of 1933 (which establishes the United States Employment Service, see 29
U.S.C. § 49 et seq.) that “civil remedies may be implied from regulations, as well as statutes.”
Gomez v. Fla. State Employment Ser., 417 F.2d 569, 576 n.29 (5th Cir. 1969). Ignoring the
statutory text contained in §§ 901 and 902 of Title IX and focusing exclusively on 34 C.F.R. §
100.7(e), Lowrey applied the four-part Cort test to reach its conclusion that § 100.7(e) implies a
private right of action. To reach this conclusion, Lowrey relied heavily on the third Cort factor --
finding that “the implication of a private right of action for retaliation would serve the dual purposes
of title IX, by creating an incentive for individuals to expose violations of title IX and by protecting
such whistleblowers from retaliation,” id. at 254 (footnote omitted) -- while giving conspicuously
little consideration to whether Congress intended to create such a private right of action.
After Sandoval, we believe the reasoning in Lowrey is unpersuasive. Accordingly, we do
not follow Lowrey, either in its exclusive reliance on 34 C.F.R. § 100.7(e) to imply a private right
of action, see Sandoval, 532 U.S. at 291, 121S. Ct. at 1522 (“[I]t is most certainly incorrect to say
that language in a regulation can conjure up a private cause of action that has not been authorized
by Congress.”), or in its application of the Cort factors that gives short shrift to legislative intent.
See Sandoval, 532 U.S. at 286-87, 121 S. Ct. at 1519-1520 (“Statutory intent . . . is determinative.”).
27
both the text and structure of Title IX yields no congressional intent to create a cause
of action for retaliation, particularly for a plaintiff who is not a direct victim of
gender discrimination. Congress is, of course, free to create a private right of action
for retaliation under Title IX and may extend its protection beyond direct victims of
gender discrimination. Until it does so, however, Sandoval plainly precludes a
federal court from implying such a right or expanding the class benefitted by Title IX.
The district court was therefore correct to dismiss Jackson’s complaint.16
AFFIRMED.
16
Because we find that Jackson has no private right of action under Title IX, we do not reach
the Board’s other claims that (i) Jackson lacks standing to assert such a right because he has not
suffered an adverse employment action, or that (ii) his claim for retaliation is preempted by the
retaliation provisions of Title VII.
28