Cannon v. University of Chicago

Mr. Justice White, with whom Mr. Justice Blackmun joins, dissenting.

In avowedly seeking to provide an additional means to effectuate the broad purpose of § 901 of the Education Amendments of 1972, 20 U. S. C. § 1681, to end sex discrimination in federally funded educational programs, the Court fails to heed the concomitant legislative purpose not to create a new private remedy to implement this objective. Because in my view the legislative history and statutory scheme show that Congress intended not to provide a new private cause of action, and *719because under our previous decisions such intent is controlling,1 I dissent.

I

The Court recognizes that because Title IX was explicitly patterned after Title VI of the Civil Rights Act of 1964, 42 U. S. C. § 2000d et seq., it is difficult to infer a private cause of action in the former but not in the latter. I have set out once before my reasons for concluding that a new private cause of action to enforce Title VI should not be implied, University of California Regents v. Bakke, 438 U. S. 265, 379 (1978) (separate opinion of White, J.), and I find nothing in the legislative materials reviewed by the Court that convinces me to the contrary. Rather, the legislative history, like the terms of Title VI itself, makes it abundantly clear that the Act was and is a mandate to federal agencies to eliminate discrimination in federally funded programs. Although there was no intention to cut back on private remedies existing under 42 U. S. C. § 1983 to challenge discrimination occurring under color of state law, there is no basis for concluding that Congress contemplated the creation of private remedies either against private parties who previously had been subject to no constitutional or statutory obligation not to discriminate, or against federal officials or agencies involved in funding allegedly discriminatory programs.

The Court argues that because funding termination, authorized by § 602, 42 U. S. C. § 2000d-l, is a drastic remedy, Congress must have contemplated private suits in order directly and less intrusively to terminate the discrimination allegedly being practiced by the recipient institutions. But the Court’s conclusion does not follow from its premise because funding termination was not contemplated as the only — or even the primary- — agency action to end discrimination. Rather, Con*720gress considered termination of financial assistance to be a remedy of last resort, and expressly obligated federal agencies to take measures to terminate discrimination without resorting to termination of funding.

Title VI was enacted on the proposition that it was contrary at least to the “moral sense of the Nation” 2 to expend federal funds in a racially discriminatory manner. This proposition was not new, for every President since President Franklin Roosevelt had, by Executive Order, prohibited racial discrimination in hiring in certain federally assisted programs.3 Further, Congress was aware that most agencies dispensing federal funds already had “authority to refuse or terminate assistance for failure to comply with a variety of requirements-imposed by statute or by administrative action.” 4 But Congress was plainly dissatisfied with agency efforts to ensure the nondiscriminatory use of federal funds;5 and the predicate for *721Title VI was the belief that “the time [had] come ... to declare a broad principle that is right and necessary, and to make it effective for every Federal program involving financial assistance by grant, loan or contract.” 6

Far from conferring new private authority to enforce the federal policy of nondiscrimination, Title VI contemplated agency action to be the principal mechanism for achieving this end. The proponents of Title VI stressed that it did not “confer sweeping new authority, of undefined scope, to Federal departments and agencies,” but instead was intended to require the exercise of existing authority to end discrimination by fund recipients, and to furnish the procedure for this purpose.7 Thus, § 601 states the federal policy of nondiscrimination, and § 602 mandates that the agencies achieve compliance by refusing to grant or continue assistance or by “any other means authorized by law.” Under § 602, cutting off funds is forbidden unless the agency determines “that compliance cannot be secured by voluntary means.” As Senator Humphrey explained:

“[Title VI] encourages Federal departments and agencies to be resourceful in finding ways of ending discrimination voluntarily without forcing a termination of funds needed for education, public health, social welfare, disaster relief, *722and other urgent programs. Cutoff of funds needed for such purposes should be the last step, not the first, in an effective program to end racial discrimination.” 110 Cong. Rec. 6546 (1964).8

To be sure, Congress contemplated that there would be litigation brought to enforce Title VI. The “other means” provisions of § 602 include agency suits to enforce contractual antidiscrimination provisions and compliance with agency regulations, as well as suits brought by the Department of Justice under Title IV of the 1964 Act, where the recipient is a public entity.9 Congress also knew that there would be private suits *723to enforce § 601; but these suits were not authorized by § 601 itself but by 42 U. S. C. § 1983.10 Every excerpt from the legislative history cited by the Court shows full awareness that private suits could redress discrimination contrary to the Constitution and Title VI, if the discrimination were imposed by public agencies; not one statement suggests contemplation of lawsuits against recipients not acting under color of state law.11 Senator Humphrey was quite correct in asserting that the individual’s “right to go to court and institute suit” for violation of the Fourteenth Amendment or § 601, see ante, at 712-714, n. 49, was not limited by the presence of alternative enforcement mechanisms in § 602. Section 1983 provides a private remedy for deprivations under color of state law of any rights “secured by the Constitution and laws,” and nothing in Title VI suggests an intent to create an exception to this historic remedy for vindication of federal rights as against *724contrary state action.12 The legislative history shows, however, that Congress did not intend to add to this already existing private remedy. Particularly, Congress did not intend to create a private remedy for discrimination practiced not under color of state law but by private parties or institutions.13

*725II

The Court further concludes that even if it cannot be persuasively demonstrated that Title VI created a private right of action, nonetheless this remedy should be inferred in Title IX because prior to its enactment several lower courts had entertained private suits to enforce the prohibition on racial discrimination in Title VI. Once again, however, there is confusion between the existing § 19-83 right of action to remedy denial of federal rights under color of state law— which, as Congress recognized,14 would encompass suits to enforce the nondiscrimination mandate of § 601- — and the creation of a new right of action against private discrimination. In the case the Court relies upon most heavily, Bossier Parish School Board v. Lemon, 370 F. 2d 847 (CA5), cert. denied, 388 U. S. 911 (1967), the plaintiff class had alleged racial discrimination in violation of both Title VI and the Fourteenth Amendment, and, accordingly, the Attorney General was allowed to intervene under Title IV of the 1964 Act. In concluding that plaintiffs could sue to enforce § 601, the Court of Appeals expressed its view that this prohibition merely repeated “the law as laid down in hundreds of decisions, independent of the statute.” 370 F. 2d, at 852. Clearly, the defendant was in violation of “the law . . . independent of the statute” only because it was a state entity, and the court was correct in concluding that § 602 did not withdraw the already existing right to sue to enforce this prohibition. However, to the extent the court based its holding on the proposition that an individual protected by a statute always has a right to enforce that statute,15 it was in error; 16 and an *726erroneous interpretation of Title VI should not be compounded through importation into Title IX under the guise of effectuating legislative intent. There is not one statement in the legislative history indicating that the Congress that enacted Title IX was aware of the Bossier litigation, much less that it adopted the particular theory relied on to uphold plaintiffs’ standing in that case.17

*727The Court’s reliance on § 718 of the 1972 Act, 20 U. S. C. § 1617, is likewise misplaced. That provision authorizes attorney’s fees to the prevailing party other than the United States upon the entry of a final order by a federal court “against a local educational agency, a State (or any agency thereof), or the United States (or any agency thereof), for failure to comply with any provision of this chapter” — which deals with emergency school aid, 20 U. S. C. §§ 1601-1619 — “or for discrimination on the basis of race, color, or national origin in violation of Title VI of the Civil Rights Act of 1964, or the fourteenth amendment to the Constitution of the United States as they pertain to elementary and secondary education.” Based on this provision, it is argued that Title VI itself must have authorized private actions. However, whatever may be the value of the opinion of Congress in 1972 as to the meaning of the 1964 Civil Rights Act, the attorney’s fees provision— far from intimating the existence of a remedy against private discrimination — refers only to suits against public institutions. Insofar as the provision refers to “discrimination... in violation of Title VI,” one must strain to conclude that this was meant to encompass private suits against federal agencies whose mandate under Title VI was to enforce § 601’s nondiscrimination provision applicable to all recipients of federal funds. Rather, in referring to Title VI and the Fourteenth Amendment, § 718 did no more than provide for fees in § 1983 suits brought to end discrimination under color of state law.18

*728HI

The legislative intent not to create a new private remedy for enforcement of Title VI or Title IX cannot be ignored simply because in other cases involving analogous language the Court has recognized private remedies. The recent cases inferring a private right of action to enforce various civil rights statutes relied not merely upon the statutory language granting the right sought to be enforced, but also upon the clear compatibility, despite the absence of an explicit legislative mandate, between private enforcement and the legislative purpose demonstrated in the statute itself. Having concluded that 42 U. S. C. § 1982 prohibited private as well as public racial discrimination in the sale or lease of property, the Court had little choice but to hold that aggrieved individuals could enforce this prohibition, for there existed no other remedy to redress such violations of the statute.19 The Court’s reliance on Allen v. State Board of Elections, 393 U. S. 544 (1969), is equally unwarranted. The cause of action there recognized— for declaratory relief that a voting change is subject to the authorization requirements of § 5 of the Voting Rights Act of 1965, 42 U. S. C. § 1973c — served to trigger the enforcement mechanism provided in the statute itself. The Court pointedly declined to infer a private cause of action to enforce the suspension requirement of § 4 of the Act, 393 U. S., at 552-*729554; nor may those allegedly discriminated against bring suit to test voting changes in covered units against the substantive standard of § 5, either directly or through judicial review of the Attorney General’s preclearance decision, Morris v. Gressette, 432 U. S. 491 (1977). The cause of action granted today is of a very different nature. It does not trigger the enforcement scheme provided in §§ 902 and 903, 20 U. S. C. §§ 1682, 1683, but entirely displaces that scheme in favor of a different approach.20

Congress decided in Title IX, as it had in Title VI, to prohibit certain forms of discrimination by recipients of federal funds. Where those recipients were acting under color of state law, individuals could obtain redress in the federal courts for violation of these prohibitions. But, excepting post-Civil War enactments dealing with racial discrimination in specified situations, these forms of discrimination by private entities had not previously been subject to individual redress under federal law, and Congress decided to reach such discrimination not by creating a new remedy for individuals, but by relying on the authority of the Federal Government to enforce the terms under which federal assistance would be provided. *730Whatever may be the wisdom of this approach to the problem of private discrimination, it was Congress’ choice, not to be overridden by this Court.

Cort v. Ash, 422 U. S. 66, 78 (1975); Securities Investor Protection Corp. v. Barbour, 421 U. S. 412 (1975); National Railroad Passenger Corp. v. National Assn, of Railroad Passengers, 414 U. S. 453 (1974).

110 Cong. Rec. 6544 (1964) (Sen. Humphrey). Senator Humphrey noted President Kennedy’s message of June 19, 1963:

" 'Simple justice requires that public funds, to which all taxpayers of all races contribute, not be spent in any fashion which encourages, entrenches, subsidizes, or results in racial discrimination.’ ” Id., at 6543.

See, e. g., Exec. Order No. 8802, 3 CFR 957 (1938-1943 Comp.) (Pres. Roosevelt); Exec. Order No. 10210, 3 CFR 390 (1949-1953 Comp.) (Pres. Truman); Exec. Order No. 10479, 3 CFR 961 (1949-1953 Comp.) (Pres. Eisenhower); Exec. Order No. 10925, 3 CFR 448 (1959-1963 Comp.) (Pres. Kennedy).

110 Cong. Rec. 6546 (1964) (Sen. Humphrey).

Thus, Senator Humphrey noted:

“Much has been done by the executive branch to eliminate racial discrimination from federally assisted programs. President Kennedy, by Executive order, prohibited such discrimination in federally assisted housing, and in employment on federally assisted construction. Individual agencies have taken effective action for the programs they administer.” Id., at 6544.

Nonetheless,

“President after President has announced that national policy is to end discrimination in Federal programs and Federal assistance. But, regrettably, there has been open violation of these policies.” Id., at 6543.

Id., at 6544. Enactment of Title VI would remove “any conceivable doubts” as to the authority of agencies to eliminate discrimination in the programs they funded and “give express legislative support to the agency’s actions. . . . [S]ome federal agencies appear to have been reluctant to act in this area. Title VI will require them to act.” Ibid. Senator Humphrey further explained that “[i]n connection with various Federal programs of aid to higher education, language institutes, research grants to colleges, and the like, Title VI would . . . authorize requirements of nondiscrimination. In a number of programs, such action has already been taken.” Id., at 6546.

Ibid. Senator Humphrey noted that “existing statutory authority is, however, not surrounded by the procedural safeguards which Title VI provides.” Ibid.

See also id., at 6544:

“Moreover, the purpose of Title VI is not to cut off funds, but to end racial discrimination. ... In general, cutoff of funds would not be consistent with the objectives of the Federal assistance statute if there are available other effective means of ending discrimination. And section 602, by authorizing the agency to achieve compliance ‘by any other means authorized by law’ encourages agencies to find ways to end racial discrimination without refusing or terminating assistance.”

See id., at 7066 (Sen. Ribicoff):

“[An] agency could, for example, ask the Attorney General to initiate a lawsuit under title IV, if the recipient were a school district or public college; or the agency could use any of the remedies available to it by virtue of its own ‘rule, regulation, or order of general applicability.’ For example, the most effective way for an agency to- proceed would often be to adopt a rule that made the nondiscrimination requirement part of a contractual obligation on the part of the recipient. . . or . . . the agency would have authority to sue to enforce compliance with its own regulations.”

The mention of “lawsuits,” id., at 7067, by Senator Ribicoff, on which the Court relies, see ante, at 705 n. 38, 712 n. 49, was in reference to the foregoing. As the Senator pointed out: “All of these remedies have the obvious advantage of seeking to end the discrimination, rather than to end the assistance.” 110 Cong. Rec. 7066 (1964).

By regulation, see 45 CFR §§ 80.8 (a), 86.71 (1978), HEW has provided that “other means” in § 602 include referral to the Department of Justice for enforcement of rights of the United States under any statute or contractual undertaking.

For instance, the Court quotes Senator Humphrey’s statement that “litigation by private parties [would be among] the primary means of securing compliance” with § 601, ante, at 712 n. 49. But reference to the Senator’s entire remarks shows he was contemplating suits under § 1983. The “[r] acial segregation . . . prohibited by the Constitution” and “litigation . . . under Title IV of the 1964 Civil Rights Act,” 110 Cong. Rec. 6545 (1964), were limited to discrimination under color of law and did not reach discrimination by private parties. Congress was well aware of § 1983 suits against public agencies brought to enforce this prohibition. See id., at 5247-5256.

The Court, ante, at 711-712, n. 48, appears to rely on a statement by Senator Humphrey citing Simkins v. Moses H. Cone Memorial Hospital, 323 F. 2d 959 (CA4 1963), cert. denied, 376 U. S. 938 (1964), as support for the proposition that Title VI created a new private remedy. But Simkins was brought under 42 U. S. C. § 1983. See University of California Regents v. Bakke, 438 U. S. 265, 383-385 (1978) (separate opinion of White, J.). In any event, although there is no doubt that in enacting Title VI Congress intended to proscribe private discrimination, the excerpt quoted by the Court does not suggest that Congress contemplated a private individual remedy against all discrimination thus prohibited. To the contrary, Senator Humphrey recognized the uncertain status of Simkins as authoritative exposition of § 1983 and the Fourteenth Amendment.

Indeed, 42 U. S. C. § 2000c-8, enacted as part of the 1964 Act, expressly preserves pre-existing private remedies against discrimination “in public education,” which would include the remedies provided by § 1983.

Although concluding that Title IX and Title VI confer private causes of action, the Court refrains from addressing the permissible remedies available under such a cause of action. Thus, the Court focuses on suits requesting, as injunctive relief, that individuals allegedly discriminated against be admitted to federally assisted educational programs, but does not explicitly foreclose the possibility of a suit against either a recipient institution or a federal funding agency to require termination of funding of the allegedly discriminatory program. In at least two cases apparently brought directly under § 601, both of which are approvingly cited by the Court, the recipient of funds was enjoined from continuing the federally assisted project, and HUD was enjoined to terminate funding. Blackshear Residents Org. v. Housing Authority of Austin, 347 F. Supp. 1138, 1150 (WD Tex. 1972); Hicks v. Weaver, 302 F. Supp. 619, 628 (ED La. 1969). Such intervention by federal courts at the behest of private parties cannot be reconciled with the numerous procedural safeguards provided in § 602, see University of California Regents v. Bakke, supra, at 381-383 (separate opinion of White, J.). The § 1983 cause of action does not encompass the remedy of funding termination, for it permits only such legal or equitable relief as is appropriate to “redress” the “deprivation” of the right. Cf. Cumming v. Richmond County Board of Ed., 175 U. S. 528 (1899).

In addition to citations in my separate opinion in University of California Regents v. Bakke, supra, at 385-386, and n. 4, see, e. g., 110 Cong. Rec. 5256 (1964):

“Mr. CASE. [Section 602] is not intended to limit the rights of individuals, if they have any way of enforcing their lights apart from the provisions of the bill, by way of suit or any other procedure. The provision of the bill is not intended to cut down any rights that exist.”
“Mr. HUMPHREY. I thoroughly agree with the Senator insofar as an individual is concerned.. . .”

The remainder of this colloquy is excerpted in the Court’s opinion, ante, at 714 n. 49.

See § 718 of the Education Amendments of 1972, 20 U. S. C. § 1617; infra, at 727.

See 370 F. 2d, at 852 (“In the absence of a procedure through which the individuals protected by section 601’s prohibition may assert their rights under it, violations of the law are cognizable by the courts”).

Prior to enactment of Title IX, two District Courts directly or indirectly relied on Bossier in holding that aggrieved individuals could sue *726to enforce § 601, but in both of these cases the defendant was acting under color of state law. Gautreaux v. Chicago Housing Authority, 265 F. Supp. 582, 583-584 (ND Ill. 1967), followed what it believed to be the holding of Bossier that individuals had “standing” to enforce § 601 even though the Seventh Circuit in Green Street Assn. v. Daley, 373 F. 2d 1, 8-9, cert. denied, 387 U. S. 932 (1967), had previously declined to express its agreement with this aspect of Bossier. Blackshear Residents Org. v. Housing Authority of Austin, supra, at 1140, in turn relied on Gautreaux. Subsequent decisions in the Gautreaux v. Chicago Housing Authority litigation expressly noted that plaintiffs sought relief under § 1983 in every count of their complaint, see 296 F. Supp. 907, 908 (ND Ill. 1969), and 436 F. 2d 306, 307 (CA7 1970) (aff’g 296 F. Supp. 907), cert. denied, 402 U. S. 922 (1971). The one case cited by the Court that was a suit against a private organization did not mention the cause-of-action issue. Hawthorne v. Kenbridge Recreation Assn., Inc., 341 F. Supp. 1382 (ED Va. 1972).

In addition to Bossier, the cases discussed in n. 16, supra, and eases explicitly holding that the cause of action was provided by § 1983, see the Court’s opinion, ante, at 696-697, n. 21, the Court relies on cases involving suits against federal officials. Contrary to the Court’s assertion, see ibid., none of these cases held that there is a. direct cause of action to enforce § 601. In Shannon v. Department of Housing and Urban Development, 436 F. 2d 809, 818-819, 820 (CA3 1970), the court concluded that allegations of failure to act with respect to specific instances of discrimination were reviewable under the Administrative Procedure Act, 5 U. S. C. § 551 et seq. Similarly, Southern Christian Leadership Conference, Inc. v. Connolly, 331 F. Supp. 940, 943 (ED Mich. 1971), cited ante, at 696 n. 20, 697 n. 21, explicitly held that standing was based on § 10 of the Administrative Procedure Act, 5 U. S. C. § 702, and cited Bossier only in a discussion of exhaustion of administrative remedies. Neither Gautreaux v. Romney, 448 F. 2d 731 (CA7 1971), later appeal, Gautreaux v. Chicago Housing Authority, 503 F. 2d 930 (CA7 1974), aff’d sub nom. Hills v. Gautreaux, 425 U. S. 284 (1976), nor Hicks v. Weaver, 302 F. Supp. 619 *727(ED La. 1969), contains any discussion of the cause-of-action issue or even suggests that the question of the appropriate standard for reviewing such federal funding decisions had been raised.

There is no basis for the Court’s suggestion that at the time § 718 was enacted § 1983 was not available for suits against state or local educational agencies, see ante, at 700 n. 27. As described last Term in Monell v. New York City Dept. of Social Services, 436 U. S. 658, 663 nn. 5, 6 (1978), we had never indicated that suits such as Brown v. Board of Education, 347 U. S. 483 (1954), or Swann v. Charlotte-Mecklenburg Board of Education, 402 U. S. 1 (1971), might not be appropriate despite the holding in Monroe v. Pape, 365 U. S. 167 (1961), that local governments were not *728“persons” within the meaning of § 1983. It was not until 1973, after passage of both Title IX and § 718, that the principle of municipal immunity established in Monroe was extended to suits for injunctive relief. See Kenosha v. Bruno, 412 U. S. 507 (1973). Even as the Court unper-suasively suggests that Congress might not have thought that private suits to remedy segregation in violation of the Fourteenth Amendment were available in 1972, it notes the furor in Congress at this time over busing as a desegregation remedy, see ante, at 701 n. 29.

See Sullivan v. Little Hunting Park, 396 U. S. 229 (1969); Jones v. Alfred H. Mayer Co., 392 U. S. 409 (1968). Cf. Johnson v. Railway Express Agency, Inc., 421 U. S. 454, 459-460 (1975) (implied cause of action under 42 U. S. C. § 1981).

At the time Allen was decided, the Department of Justice in enforcing the Voting Rights Act had not provided any formal means by which an individual could initiate review by the Department of a change affecting voting in an area covered by § 5. Since 1971, the Department has officially urged private parties to inform it of voting law changes in covered areas. 28 CFR §§ 51.12-51.15 (1978); 36 Fed. Reg. 18186 (1971). The Department of Health, Education, and Welfare has provided by regulation that any person may file a written complaint alleging discrimination in violation of Titles VI or IX within 180 days of the occurrence of the discrimination, and that after investigation HEW shall seek compliance, formally or informally, or shall inform the complainant in writing that further agency action is unwarranted. 45 CFR §§ 80.7 (b), (c), 86.71 (1978). The federal respondents have represented to the Court that they would, “of course, fulfill their responsibility under applicable regulations to conduct an administrative investigation of petitioner’s charges” should this Court affirm the decision below. Brief for Federal Respondents 54 n. 33.