In a break from other federal appeals courts, the Eleventh Circuit ruled last week that Title IX does not provide school district and university employees with a private right of action to file sex-based discrimination claims.
The ruling stems from two separate complaints of discrimination and retaliation; one from a former professor and another from a former basketball coach. The Eleventh Circuit, which covers Georgia, found that although employees fall under Title IX’s administrative coverage, there is nothing in the text of the statute that shows Congress intended to permit employees of educational institutions to bring employment-related lawsuits under Title IX.
The outcome provides educational institutions with a much clearer view of the potential for litigation risk under the decades-old federal civil rights law.
In the coach’s lawsuit, the claims of discrimination based on her sex and retaliation under Title VII, Title IX, and the Georgia Whistleblower Act came after she was terminated. In the second case, a university professor was removed from his position when students brought sexual harassment complaints against him. The professor then brought employment discrimination and retaliation claims against the Board of Regents under Title IX.
When discussing both cases, the Eleventh Circuit pointed to U.S. Supreme Court precedent that in order to find an implied right of action, courts must determine whether Congress ambiguously intended the statute to create both a private right and a private remedy. Without this clear intent, federal funding statutes like Title IX do not provide for private enforcement.
Because Title IX was enacted under the Constitution’s Spending Clause, the typical remedy for noncompliance is loss of federal funding, not a private cause of action. Spending Clause legislation imposes contractual duties and liabilities in exchange for federal funding, so the court was hesitant to find an implied right of action that would impose unclear or unanticipated conditions or remedies.
Although the Supreme Court has held that Title IX provides a private right of action for retaliation for an employee’s complaint about discrimination against students, it has never extended the implied private right of action to claims of sex discrimination for employees. And while the Supreme Court previously interpreted a private right of action for students under Title IX because the focus of the statute is to protect students from sex discrimination, the statute is not as clear in its intent to protect employees of educational institutions.
The Eleventh Circuit also analyzed congressional intent from the legislative history of Title IX and Title VII. Congress passed Title IX after it had already extended Title VII’s prohibition of employment discrimination to educational institutions via the Equal Employment Opportunity Act of 1972 just a few months prior. Both Title IX and the Title VII amendments demonstrate that Congress intended the statutes to work together but not to have overlapping remedies. In the employment context, Title VII permits compensation to victims of discrimination and Title IX offers protections from discriminatory practices by federal funding recipients.
"Title IX’s enforcement mechanism relied on the carrot and stick of federal funding to combat sex discrimination," the court wrote in its opinion.
The court also considered whether the professor adequately stated a claim for retaliation under Title IX, writing that Supreme Court precedent only extends Title IX implied right of action for retaliation against those who report sex discrimination.
It "does not contemplate protections for an accused discriminator who participates in a Title IX investigation of his own conduct," the court wrote.
For school districts, colleges, and universities, the key takeaway from the court’s ruling is that employees claiming sex discrimination cannot circumvent Title VII’s administrative scheme by bringing a similar claim under Title IX. This means that potential claimants must comply with the applicable administrative procedures and deadlines, including filing a timely charge with the Equal Employment Opportunity Commission, before they can file suit on their claims. This administrative structure provides clear guidance to educational institutions on when they may be able to anticipate claims and allows them to assess their potential liability accordingly.
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