Cannon v. University of Chicago

On Rehearing

After issuing our opinion in this case, we granted plaintiff’s petition for rehearing of the issue of whether a private right of action lies under Title IX of Public Law 92-318 in the circumstances of this case.1 We took this step principally to " give the parties an opportunity to develop the question of whether the inclusion of Title IX within the provisions of the Civil Rights Attorney’s Fees Award Act of 1976, Pub.L. No. 94-559, § 2, 90 Stat. 2641, requires a different resolution of the Title IX issue presented to us. Also, we were concerned that we had misconstrued the import of Lau v. Nichols, 414 U.S. 563, 94 S.Ct. 786, 39 L.Ed.2d 1 (1974), in resolving the Title IX issue against the plaintiff.

After considering the new briefs submitted by the parties, we remain convinced that no private cause of action lies under *1078Title IX in the circumstances of this case. Accordingly, we adhere to our previous judgment affirming the district court’s dismissal of plaintiff’s complaint for the reasons noted below.

I.

Shortly after our decision of the case at bar, Congress enacted the Civil Rights Attorney’s Fees Award Act of 1976, Pub.L. No. 94-559, § 2, 90 Stat. 2641 (codified at 42 U.S.C.A. § 1988 (1977 Supp.)). The statute provides in relevant part:

“In any action or proceeding to enforce a provision of . title IX of Public Law 92-318, . . . the court, in its discretion, may allow the prevailing party, other than the United States, a reasonable attorney’s fee as part of the costs.”

On rehearing, plaintiff concedes that the legislative history of the Act makes clear that the Act was not designed to create any remedies for violations of federal civil rights not already authorized under the statutes covered by the Act. E.g., Sen. Rep. No. 94-1011, 94th Cong., 2d Sess. 6 (1976), reprinted in [1976] U.S. Code Cong. & Admin. News 5913; 122 Cong. Rec. S. 16525 (daily ed. Sept. 21, 1976) (remarks of Sen. Kennedy); 122 Cong. Rec. H. 12153 (daily ed. Oct. 1, 1976) (remarks of Rep. Drinan). However, plaintiff argues that the Act’s inclusion of Title IX constitutes a “most emphatic and unmistakable declaration” of Congress’s understanding and intent that private suits by individuals are permitted under Title IX, for the inclusion of Title IX in the Act makes no sense unless Congress believed that private rights of action were already authorized under Title IX itself. In support of her argument, plaintiff refers us to the remarks of various members of Congress made during debates on the Attorney’s Fees Award Act,2 which suggest that at least those members of Congress assumed that private suits were permitted under all of the statutes included in the Act, including Title IX. Plaintiff would have us view those remarks as a subsequent expression of Congress’s previous intent in enacting Title IX. This subsequent declaration of Congress’s pre-existing intent, says plaintiff, must be given at least “great” if not “conclusive” weight in determining whether we should imply a private right of action under Title IX.3

Defendants answer that the Act’s inclusion of Title IX could be construed as simply indicating an intent to provide for the award of attorney’s fees to the prevailing party in any proceeding for judicial review of agency action already expressly provided in Title IX under 42 U.S.C. § 1683. Thus, Title IX’s inclusion in the Attorney’s Fees Award Act would make sense, say defendants, even if we implied no judicial cause of action on behalf of private parties. Moreover, the defendants argue, even if the Act was intended to authorize the award of attorney’s fees to the prevailing party in private party litigation brought to enforce the provisions of Title IX, we should not therefore assume that Congress necessarily was expressing either an understanding that a private right of action already existed under Title IX or an intent to encourage courts to imply one; rather, Congress simply could have been providing for the contingency that future court decisions might imply a private right of action from the provisions of Title IX.

*1079As we read the legislative history of the Attorney’s Fees Award Act, it provides no support for plaintiff’s argument that the inclusion of Title IX within the Act was intended to provide a private right of action under Title IX. At best, the remarks to which plaintiff has referred us suggest only that some members of Congress may have assumed that private suits were authorized under all of the statutes included within the Act. But, even if the entire Congress shared the assumption that a private right of action was authorized by Title IX, none of the precedents on which plaintiff relies would be controlling, for they involved subsequent legislative history explicitly declarative of Congress’s own intent in passing a given statute, rather than a mere assumption concerning a judicial construction that had been or might be placed on a statute after its enactment.

Notwithstanding plaintiff’s strained efforts to rewrite the legislative history of Title IX, we find nothing in the legislative history of the Attorney’s Fees Award Act that gives us cause to reconsider our holding that no private right of action exists under Title IX. As defendants argue, the legislative history indicates that Congress included Title IX within the Act only to provide for the possibility that the statute might be construed in the future as authorizing judicial implication of a private right of action. This seems clear from a colloquy among Representatives Quie, Anderson, Drinan, Bauman and Railsback, in which Representatives Quie and Bauman expressed concern that the Attorney’s Fee Award Act might be construed as impliedly authorizing private individuals to bring suit under Title IX. 122 Cong. Rec. H. 12152-53 (daily ed. Oct. 1, 1976). Representatives Anderson, Drinan and Railsback, all supporters of the bill, denied that it would effect any change in pre-existing law concerning an individual’s right to sue under Title IX. Representative Railsback made their position clear:

“I would simply like to point out that, as I understand it, it is clearly not the intent of Congress to create a new remedy, but that, rather, this bill would create a remedy only in the event that the courts should in the future determine that an individual may sue under the statutes.
And the bill does not authorize or statutorily grant any private right of action which does not now exist. At least I feel certain that is our intent. I think we ought to establish that in the Record.” 122 Cong. Rec. H. 12152 (daily ed. Oct. 1, 1976).

Representative Drinan, the House sponsor of the Senate bill under consideration, “concur[red] completely” in Representative Railsback’s comments: “We do not create any new statutory right of action in the bill today.” 122 Cong. Rec. H. 12153 (daily ed. Oct. 1, 1976). Any ambiguity inherent in the above record was dispelled by Representative Railsback’s subsequent remarks that went unchallenged during final debate on passage of the bill:

“Mr. RAILSBACK. Mr. Speaker, I rise in support of S. 2278 which is designed to allow the court, in its discretion, to award reasonable attorney fees to prevailing parties — other than the United States — in suits to enforce the Civil Rights Acts which Congress has enacted since 1866.
Mr. Speaker, In considering S. 2278 for passage today, I have been alerted to several legal issues which were not raised at hearings held by the Senate and House committees. Not wishing to establish any legal precedents by implication, I would like to make several points explicitly clear with respect to the intent of this bill.
I have been informed by the Committee on Education and Labor as well as several education associations that under title VI of the Civil Rights Act and title IX of the Education Amendments of 1972 there exists a serious question as to whether an individual complainant or class of complainants has the right to sue as a private plaintiff. To date the Department of Health, Education and Welfare has been the prime enforcer of these titles and in the case of Cannon against *1080University of Chicago, the Seventh Circuit U.S. Court of Appeals stated that Congress gave the right of action to HEW and not to private individuals.
It has been brought to my attention that by granting attorneys’ fees to prevailing parties other than the United States, Congress might implicitly authorize a private right of action under title VI and title IX. This is not the intent of Congress. This bill merely creates a remedy in the event the courts determine that an individual may sue under these statutes. This bill does not authorize or statutorily grant any private right of action which does not now exist.” 122 Cong. Rec. H. 12161 (daily ed. Oct. 1, 1976).

We doubt that the legislative history could be much clearer. Congress certainly was not engaged in any effort to rewrite the legislative history of Title IX or to declare its pre-existing intent to create a private right of action thereunder when it included Title IX within the provisions of the Attorney’s Fees Award Act. As is clear from Representative Railsback’s reference to our holding in the case at bar, Congress did not intend to imply any opinion on the merits of the question before us here. The Act’s inclusion of Title IX was intended merely to provide for the possibility that some court might deem it appropriate in the future to imply a private right of action from the provisions of Title IX. It was not intended to do more.

II.

Although our principal motivation in granting rehearing was to obtain the parties’ views on the potential impact of the Attorney’s Fees Award Act of 1976 on our resolution of the Title IX issue, we were also curious as to why the Department of Health, Education and Welfare, which had consistently supported its codefendants’ position that no private cause of action lies under Title IX, did an about face on the merits of that issue in its answer to plaintiff’s petition for rehearing. Unfortunately, neither the Department’s answer nor its subsequent brief on rehearing explains why the Department no longer believes that “Title IX’s administrative procedural remedies were meant to suffice in enforcing Title IX’s prohibitions against sex discrimination.” Supplemental Brief of the Department of Health, Education and Welfare, Office of Civil Rights at 8. Whatever the reason for the Department’s change of heart, it has now adopted the position that implication of a private cause of action under Title IX is justified under the criteria set out in Cort v. Ash, 422 U.S. 66, 95 S.Ct. 2080, 45 L.Ed.2d 26 (1975):

“In determining whether a private remedy is implicit in a statute not expressly providing one, several factors are relevant. 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?” Id. at 78, 95 S.Ct. at 2088 (emphasis in original) (citations omitted.)

In view of the plaintiff’s new arguments regarding Congress’s implicit legislative intent in enacting Title IX and the Department’s lengthy arguments from Cort, we will briefly restate our reasoning in terms thereof.

Assuming arguendo that plaintiff is a member of the class for whose benefit Title IX was enacted, and that a Title IX action would not displace remedies traditionally available at state law, we remain of the view that implication of a private judicial remedy would be inconsistent with the legislative intent and underlying purposes of the statutory scheme.

*1081We are unpersuaded by the Department’s argument that implication of a private right of action must be deemed consistent with the legislative purposes of Title IX simply because private party suits would provide a useful means of enforcing the statutory policy of prohibiting discrimination on the basis of sex in federally funded educational programs. Such an argument goes too far, for implication of a private right to enforce every federal statute would have the same effect of assisting agency efforts to obtain compliance with federal policies. Simply put, the argument begs the question of whether implication of a private judicial remedy is consistent with the purposes of a legislative scheme that gives responsibility for enforcing its statutory policies to an administrative agency rather than to “private attorneys general.” We think it clear from the face of the statute and the regulations promulgated pursuant thereto that, in providing private parties with an administrative but not a judicial forum in which to raise complaints of sex discrimination,4 it was Congress’s purpose to commit the screening of Title IX complaints to the administrative agencies charged with the responsibility of overseeing federally funded educational programs and to encourage resolution of those complaints by means of agency conciliation efforts directed at achieving voluntary compliance with the statutory prohibition. Those purposes would not be served by implying a statutory cause of action that would permit private parties to circumvent the remedial scheme created by Congress. See, e.g., Johnson v. Railway Express Agency, 421 U.S. 454, 461, 95 S.Ct. 1716, 44 L.Ed.2d 295 (1975).

Nor are we convinced that there is anything in the legislative history of Title IX indicative of an explicit or implicit intent to create or allow a private right of action. We are told that because federal court decisions implying a private right of action under Title VI of the Civil Rights Act of 1964 existed at the time Title IX was adopted,5 we may infer that Congress intended that a private judicial remedy be made available under Title IX in view of Congress’s explicit intent to pattern the remedial provisions of Title IX after those of Title VI. First of all, we do not read those decisions as affirmatively establishing the existence of an implied private right of *1082action under Title VI at the time Title IX was enacted.6 More important, there is nothing in the legislative history of Title IX itself indicating that Congress was even aware of those decisions, let alone intended to adopt their construction of Title VI.

Given the lack of any explicit or implicit intent to create a private judicial remedy in the legislative history of Title IX itself, we remain of the view that Congress’s express provision of a sophisticated scheme of administrative enforcement should be construed as an indication of an implicit legislative intent to exclude any private judicial remedies for violations of Title IX other than the judicial review mechanism Congress made available to private parties in the statute. See National Railroad Passenger Corp. v. National Ass’n of Railroad Passengers, 414 U.S. 453, 458-61, 94 S.Ct. 690, 38 L.Ed.2d 646 (1974); Goldman v. First Federal Savings and Loan Ass’n, 518 F.2d 1247, 1250 n. 6 (7th Cir. 1975).

We recognize, of course, that Cort v. Ash, supra at 82, states that it is not necessary for the legislative history of a statute to show an explicit intent to create a private right of action for us to imply one for violations of a federally created right. It does not follow, however, that we must imply a private right of action simply because the legislative history shows no explicit intent to deny one. Were we confronted with an alleged violation of a fundamental federal constitutional or statutory right for which Congress has provided no remedy at all, or for which the remedies available have proven to be wholly inadequate to the task of protecting those rights, we might take a different view of the matter. E.g., Bivens v. Six Unknown Named Agents of the Federal Bureau of Narcotics, 403 U.S. 388, 390-97, 91 S.Ct. 1999, 29 L.Ed.2d 619 (1971); Steele v. Louisville & Nashville R.R., 323 U.S. 192, 206-07, 65 S.Ct. 226, 89 L.Ed. 173 (1944); Lloyd v. Regional Transportation Authority, 548 F.2d 1277, 1285-87 (7th Cir. 1977). Under the circumstances of this case, however, we believe it would be an unwarranted exercise of federal judicial power to imply a private right of action in the face of a sophisticated scheme of administrative enforcement and judicial review that, if given an opportunity to work, may well prove itself adequate to the task for which Congress designed it. Simply put, notwithstanding the Department’s change of heart, we remain unpersuaded that it is a “necessity” to imply a private right of action under Title IX to effectuate the purposes of Congress’s legislative scheme. Piper v. Chris-Craft Indus., Inc., 430, 1, 24-26, 97 S.Ct. 926, 941, 51 L.Ed.2d 124 (1977).

*1083III.

We have on rehearing also reconsidered plaintiff’s argument that Lau v. Nichols, 414 U.S. 563, 94 S.Ct. 786, 39 L.Ed.2d 1 (1974), controls the case before us.

Previously we distinguished Lau on the ground that it involved a class suit against a public school system rather than an individual suit against the private universities before us here. In so doing, we relied heavily on the Tenth Circuit’s reading of Mr. Justice Blackmun’s concurring opinion in Lau, which prompted that court to conclude that “only when a substantial group is being deprived of a meaningful education will a Title VI violation exist.” Serna v. Portales Municipal Schools, 499 F.2d 1147, 1154 (10th Cir. 1974); accord, Otero v. Mesa County Valley School Dist. No. 51, 408 F.Supp. 162, 170-72 (D. Colo. 1975); see Pabon v. Levine, 70 F.R.D. 674, 676-77 (S.D.N.Y. 1976) (Weinfeld, J.).

On rehearing, both the Department and the plaintiff argue that we misconstrued the import of Justice Blackmun’s concurring opinion in Lau, which states:

“[If] we [were] concerned . with just a single child, . I would not regard today’s decision . as conclusive upon the issue of whether the statute and the guidelines required the funded school district to provide special instruction.” 414 U.S. at 571-72, 94 S.Ct. at 791.

Justice Blackmun’s caveat, we are told, was directed only to the appropriateness of the type of relief ordered in that case rather than to the question of whether a Title VI violation would have been made out if only a single plaintiff was involved.

We are not convinced that our reliance on Serna’s reading of Lau was misplaced, but, even if we were, we would still adhere to our statement that Lau provides no real support for plaintiff in the circumstances of this case. Our conclusion would remain the same because Lau was brought under the authority of 42 U.S.C. § 1983, and the question of whether an implied private right of action lay directly under the provisions of Title VI was never presented to the Supreme Court.7 Because plaintiffs’ cause of action in Lau arose under 42 U.S.C. § 1983, Lau simply cannot be read as supporting the proposition that private parties have an implied cause of action under Title VI that would mandate implication of a private right of action here under the comparable provisions of Title IX. Accordingly, neither Lau nor any other decision relying thereon for the proposition that an implied private right of action lies directly under Title VI is of help to the plaintiff at bar, who is unable to invoke 42 U.S.C. § 1983 because she is suing private universities acting under color of no state law.

We adhere to our previous holding that no private right of action lies under Title IX in the circumstances of this case.

. We denied plaintiffs petition for rehearing of the other issues raised and decided in our opinion, and the Court internally stayed action on plaintiffs suggestion for rehearing en banc of the entire case pending our decision on rehearing.

. 122 Cong. Rec. S. 17052 (daily ed. Sept. 29, 1976) (remarks of Sen. Abourezk); 122 Cong. Rec. S. 17051 (daily ed. Sept. 29, 1976) (remarks of Sen. Tunney); 122 Cong. Rec. S. 16431 (daily ed. Sept. 22, 1976) (remarks of Sen. Hathaway); 122 Cong. Rec. S. 16262 (daily ed. Sept. 22, 1976) (remarks of Sen. Allen); 122 Cong. Rec. S. 16252 (daily ed. Sept. 21, 1976) (remarks of Sen. Scott); 122 Cong. Rec. H. 12165 (daily ed. Oct. 1, 1976) (remarks of Rep. Sieberling); 122 Cong. Rec. H. 12159 (daily ed. Oct. 1, 1976) (remarks of Rep. Drinan).

. Glidden Co. v. Zdanok, 370 U.S. 530, 541-42, 82 S.Ct. 1459, 8 L.Ed.2d 671 (1961); Federal Housing Administration v. The Darlington, Inc., 358 U.S. 84, 90, 79 S.Ct. 141, 3 L.Ed.2d 132 (1958); Sioux Tribe v. United States, 316 U.S. 317, 329-30, 62 S.Ct. 1095, 86 L.Ed. 1501 (1942); New York, Philadelphia & Norfolk R. R. v. Peninsula Produce Exchange, 240 U.S. 34, 39, 36 S.Ct. 230, 60 L.Ed. 511 (1915); Cope v. Cope, 137 U.S. 682, 688, 11 S.Ct. 222, 34 L.Ed. 823 (1891).

. Section 901(a) of Title IX prohibits discrimination on the basis of sex in federally funded educational programs. 20 U.S.C. § 1681(a). Section 902 provides for administrative enforcement of the statutory prohibition by directing each federal agency providing financial assistance “to effectuate the provisions of section 1681 ... by issuing rules, regulations, or orders of general applicability which shall be consistent with achievement of the objectives of the statute . . . 20 U.S.C. § 1682. Pursuant to the directive given above, the Department of Health, Education and Welfare has established interim regulations permitting private parties to file complaints of sex discrimination and providing for a prompt and thorough investigation of any such complaints. 45 C.F.R. § 86.71, adopting by reference 45 C.F.R. § 80.7(b). The Department’s regulations provide that compliance shall be secured by informal means, if possible, and otherwise by “any other means authorized by law.” 45 C.F.R. § 86.71, adopting by reference, 45 C.F.R. § 80.8(a). However,

“(d) No action to effect compliance by any other means authorized by law shall be taken until (1) the responsible Department official has determined that compliance cannot be secured by voluntary means, (2) the recipient or other person has been notified of its failure to comply and of the action to be taken to effect compliance, and (3) the expiration of at least 10 days from the mailing of such notice to the recipient or other person. During this period of at least 10 days, additional efforts shall be made to persuade the recipient or other person to comply with the regulation and to take such corrective action as may be appropriate.” 45 C.F.R. § 86.71, adopting by reference 45 C.F.R. § 80.8(d).

. Plaintiff calls to our attention a number of such cases. Alvarado v. El Paso Indep. School Dist., 445 F.2d 1011 (5th Cir. 1971); Kelley v. Altheimer Public School Dist., 378 F.2d 483 (8th Cir. 1967); Cypress v. Newport News General and Nonsectarian Hospital Ass’n, 375 F.2d 648 (4th Cir. 1967); Bossier Parish School Bd. v. Lemon, 370 F.2d 847 (5th Cir.), cert. denied, 388 U.S. 911, 87 S.Ct. 2116, 18 L.Ed.2d 1350 (1967).

The Department of Health, Education and Welfare also refers us to a number of district court cases and the Sixth Circuit’s decision in Nashville 1-40 Steering Comm. v. Ellington, 387 F.2d 179 (6th Cir. 1967), cert. denied, 390 U.S. 921, 88 S.Ct. 857, 19 L.Ed.2d 982 (1968).

. Most of the cases cited in note 5 supra were in fact explicitly brought under the authority of 42 U.S.C. § 1983 to redress violations of rights granted by Title VI, and not under the implied auspices of Title VI itself. In view of the fact that the cases were brought under Section 1983, statements made therein that private parties had stated a claim under Title VI must be read as simply a shorthand way of saying that a cause of action under Section 1983 had been made out by virtue of the sufficiency of the allegations that Title VI had been violated.

We suspect that even the cases that do not expressly mention Section 1983 were in fact brought under that statute, for all the cases cited to us appear to have been brought against public agencies acting under color of state law. Although the Fifth Circuit’s broad dictum in Bossier lends some support to plaintiff’s assertion that it recognized an implied right of action under Title VI, we note that the suit was brought to desegregate a public school system, and the court’s actual holding was merely that “these plaintiffs have standing to assert their right to equal educational opportunities with white children.” 370 F.2d at 852 (emphasis added). As we read the case, Bossier relies on Title Vi’s prohibition of racial discrimination in federally funded educational programs merely to give plaintiffs the requisite standing to sue “to enforce a national constitutional right.” Id. at 851 (emphasis added). As the suit was brought to enforce “the constitutional right of Negro school children to equal educational opportunities with white children,” id. at 849, we doubt that the court meant to hold that private parties have an implied cause of action under Title VI alone. Moreover, it seems logical to assume that the suit was brought under the authority of Section 1983, for, as far as we know, no precedent existed at the time Bossier was decided for the proposition that anyone could bring a suit directly under the Fourteenth Amendment to enforce rights guaranteed by the equal protection clause without some independent statutory authorization such as Section 1983.

. The jurisdictional statement in the Lau plaintiffs’ complaint shows that their constitutional and statutory claims were brought under 42 U.S.C. § 1983:

“Jurisdiction is conferred upon this Court by 28 U.S.C. § 1331 and by 28 U.S.C. § 1343(3)(4), which provide original jurisdiction in suits authorized by 42 U.S.C. § 1983." Plaintiffs’ Complaint for Injunctive and Declaratory Relief, Lau v. Nichols, 414 U.S. 563, 94 S.Ct. 786, 39 L.Ed.2d 1 (1974) (emphasis added).

A review of the briefs filed in the Supreme Court reveals that the parties presented no jurisdictional issues to the Court, and at least one of the amici briefs filed in support of plaintiffs’ claims makes explicit that

“petitioners sought in this action, brought under 42 U.S.C. § 1983, to require respondents to provide them assistance in learning English so that they might benefit from school as other children do. They contended that respondents’ failure to provide such assistance violates the Equal Protection Clause of the Fourteenth Amendment and Title VI of the Civil Rights Act of 1964 and regulations thereunder.” Brief for the National Education Association and the California Teachers Association as Amici Curiae at 5, Lau v. Nichols, 414 U.S. 563, 94 S.Ct. 786, 39 L.Ed.2d 1 (1974) (emphasis added).