Machelle Joseph v. Board of Regents of the University System of Geor

USCA11 Case: 23-11037 Document: 67-1 Date Filed: 04/08/2025 Page: 1 of 49

In the

United States Court of Appeals

For the Eleventh Circuit

____________________

No. 23-11037

____________________

MACHELLE JOSEPH,

Plaintiff-Appellant,

versus

BOARD OF REGENTS OF THE UNIVERSITY SYSTEM OF

GEORGIA,

GEORGIA TECH ATHLETIC ASSOCIATION,

Defendants-Appellees,

GEORGE P. PETERSON, et al.,

Defendants.

____________________

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2 Order of the Court 23-11037

Appeal from the United States District Court

for the Northern District of Georgia

D.C. Docket No. 1:20-cv-00502-VMC

____________________

____________________

No. 23-12475

____________________

THOMAS CROWTHER,

Plaintiff-Appellee,

versus

BOARD OF REGENTS OF THE UNIVERSITY SYSTEM OF

GEORGIA,

Defendant-Appellant.

____________________

Appeal from the United States District Court

for the Northern District of Georgia

D.C. Docket No. 1:21-cv-04000-VMC

____________________

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23-11037 Order of the Court 3

Before WILLIAM PRYOR, Chief Judge, JORDAN, ROSENBAUM, JILL

PRYOR, NEWSOM, BRANCH, GRANT, LUCK, LAGOA, BRASHER, ABUDU,

and KIDD, Circuit Judges.

BY THE COURT:

A judge of this Court having requested a poll on whether

this appeal should be reheard by the Court sitting en banc, and a

majority of the judges in active service on this Court having voted

against granting rehearing en banc, the Court sua sponte ORDERS

that this appeal will not be reheard en banc.

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23-11037 WILLIAM PRYOR, C.J., respecting denial 1

WILLIAM PRYOR, Chief Judge, joined by LUCK, Circuit Judge, re-

specting the denial of rehearing en banc:

I agree with the decision not to rehear this appeal en banc

and write to explain that our panel opinion faithfully applied Su-

preme Court precedent. Congress enacted Title IX under the

Spending Clause, and that framing all but dictates our resolution

of this appeal. Our dissenting colleague chastises the panel opinion

for failing to learn from the reversal of our circuit in Jackson v. Bir-

mingham Board of Education, 544 U.S. 167 (2005). Rosenbaum Dis-

sent at 1. But our dissenting colleague’s criticism f lunks her own

test. Before Jackson, the Supreme Court also reversed this circuit in

Alexander v. Sandoval, 532 U.S. 275 (2001). There, the Supreme

Court told us—in no uncertain terms—that the days of courts en-

gineering “such remedies as are necessary to make effective the

congressional purpose expressed by a statute” are over, and “[h]av-

ing sworn off the habit of venturing beyond Congress’s intent, we

[should] not accept [the] invitation to have one last drink.” Id. at

287 (citation and internal quotation marks omitted). After Sando-

val, in the absence of unambiguous congressional intent, we must

decline to imply private rights of action. Gonzaga Univ. v. Doe, 536

U.S. 273, 280 (2002).

No one disputes that employees of federally funded educa-

tional institutions have a private right of action for sex discrimina-

tion in employment. Title VII provides an express right of action

and an administrative remedial scheme for those employees. 42

U.S.C. § 2000e-5. No one disputes too that the Supreme Court has

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2 WILLIAM PRYOR, C.J., respecting denial 23-11037

recognized an implied right of action for students who have suffered

sex discrimination in violation of Title IX, see Cannon v. Univ. of Chi.,

441 U.S. 677, 690 n.13, 694, 709 (1979); accord Sandoval, 532 U.S. at

279–80, and Congress has since ratified that reading, see 42 U.S.C.

§ 2000d-7. And, in Jackson, the Supreme Court interpreted Title IX

to create a related implied right of action for retaliation when em-

ployees complain about sex discrimination against students. 544 U.S.

at 171–74. But Title IX does not provide a duplicative implied private

right of action for sex discrimination against employees.

In Sandoval, the Court cautioned that “[t]he judicial task is to

interpret the statute Congress has passed to determine whether it

displays an intent to create not just a private right but also a private

remedy.” 532 U.S. at 286. Without the requisite intent, “a cause of

action does not exist and courts may not create one.” Id. at 286–87.

In the Spending Clause context, “[t]he express provision of one

method of enforcing a substantive rule suggests that Congress in-

tended to preclude others.” Id. at 290. “Sometimes,” the Court con-

cluded, “th[at] suggestion is 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. (citations omitted). Where

Congress’s chosen remedy belies intent to create a secondary, im-

plied right of action, “federal tribunals” have no license to “[r]ais[e]

up causes of action.” See id. at 287 (citation and internal quotation

marks omitted).

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23-11037 WILLIAM PRYOR, C.J., respecting denial 3

Since Sandoval, the Court has reiterated its warning. Gonzaga

University v. Doe, for example, “reject[ed] the notion that [its] cases

permit anything short of an unambiguously conferred right to sup-

port a cause of action.” 536 U.S. at 283. “[U]nless Congress speaks

with a clear voice, and manifests an unambiguous intent to confer

individual rights, federal funding provisions provide no basis for

private enforcement.” Id. at 280 (citation and internal quotation

marks omitted). So, without an “unambiguous” congressional

mandate, we have no basis for implying rights of action.

For Spending Clause legislation, “‘the typical remedy for . . .

noncompliance with federally imposed conditions is not a private

cause of action . . . but rather action by the Federal Government to

terminate funds.’” Id. (quoting Pennhurst State Sch. & Hosp. v. Hal-

derman, 451 U.S. 1, 28 (1981)). “Unlike ordinary legislation, which

‘imposes congressional policy’ on regulated parties ‘involuntarily,’

Spending Clause legislation operates based on consent: ‘in return

for federal funds, the recipients agree to comply with federally im-

posed conditions.’” Cummings v. Premier Rehab Keller, P.L.L.C., 142

S. Ct. 1562, 1570 (2022) (alteration adopted) (quoting Pennhurst, 451

U.S. at 16, 17). Spending Clause legislation works like a contract: in

exchange for federal dollars, prospective recipients accept certain

duties and consequences for noncompliance—namely, the revoca-

tion of those funds. See id. So even where Spending Clause legisla-

tion is phrased in terms of the “persons” protected, the inclusion of

a funding-based remedial scheme cautions against construing the

statute to create other, implied remedies. See Gonzaga Univ., 536

U.S. at 284, 289–90 (noting that the conclusion that a Spending

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4 WILLIAM PRYOR, C.J., respecting denial 23-11037

Clause statute did not confer enforceable rights was “buttressed by

the mechanism that Congress chose to provide for enforcing [the

statute’s] provisions”).

Title VII and Title IX work together to attack the problem

of sex discrimination in schools through different mechanisms. As

the panel opinion explained, Congress passed Title IX in June 1972

as part of a series of amendments to the Civil Rights Act of 1964

and other antidiscrimination statutes. The Equal Employment Op-

portunity Act of 1972 first eliminated the educational-institution

exception in Title VII’s prohibition of employment discrimination,

creating an express right of action for school employees. Pub. L.

No. 92-261, § 2–3, 86 Stat. 103, 103–04 (Mar. 24, 1972). Just three

months later, Congress enacted Title IX to create a separate Spend-

ing Clause remedy for sex discrimination in educational institu-

tions. See Education Amendments of 1972, Pub. L. No. 92-318,

§ 901, 86 Stat. 235, 373 ( June 23, 1972).

Title IX does not impliedly create a duplicative right of ac-

tion for employees. It creates an alternative remedy by condition-

ing federal funding on compliance with its prohibition of sex dis-

crimination in schools. But the dissent would have us believe that

Congress—without ever saying as much—fashioned not just an

“overlapping” or alternative remedy for employment discrimina-

tion in schools, but one nearly identical to Title VII. Rosenbaum

Dissent at 11, 19–20 (citing N. Haven Bd. of Educ. v. Bell, 456 U.S. 512,

535 n.26 (1982)).

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23-11037 WILLIAM PRYOR, C.J., respecting denial 5

It would be odd for our Court to conclude that, over the

course of only three months, Congress designed two rights of ac-

tion for employment discrimination, the first of which expressly

requires employees of educational institutions to exhaust adminis-

trative procedures with short deadlines while the other allows

those same employees to bypass those requirements and proceed

directly to federal court. That conclusion would be odder still when

you consider that we would have to assume that Congress suppos-

edly created the second right without ever saying so. Cf. Lakoski v.

James, 66 F.3d 751, 753 (5th Cir. 1995) (finding that Title VII pre-

cludes Title IX as to individuals seeking money damages). And, im-

portantly, asking whether duplicative remedies exist for employees

of educational institutions is different from asking whether stu-

dents have any private right of action. See Cannon, 441 U.S. at 693–

94, 709 (holding that a prospective student has a private right of

action for sex discrimination in admissions). Students have no fed-

eral remedy for sex discrimination besides Title IX. That statutory

context matters.

In short, the 1972 amendments created a comprehensive

scheme to combat sex discrimination in schools. Title VII operates

at the individual level. See 42 U.S.C. § 2000e-5(f )(1). Title IX largely

operates at the program level. See 20 U.S.C. §§ 1681–1682. Title VII

creates express private remedies. See 42 U.S.C. § 2000e-5(g). Title IX

creates express funding remedies. See 20 U.S.C. § 1682. Cannon v.

University of Chicago held that Congress also clearly implied a pri-

vate right of action under Title IX for students who would other-

wise have no remedy for sex discrimination. 441 U.S. at 709. And

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6 WILLIAM PRYOR, C.J., respecting denial 23-11037

Jackson held that a teacher could sue under Title IX for retaliation

because he complained about sex discrimination against students,

a remedy too that would otherwise be unavailable under Title VII.

544 U.S. at 173–74. These rights and remedies cover each “person”

Congress intended to protect from sex discrimination in schools

through a multi-faceted, multi-remedy system.

Our dissenting colleague suggests that our panel opinion un-

dermines the “overlapping” remedies for sex discrimination that

Congress designed. Rosenbaum Dissent at 11, 19–20. But that con-

clusion follows only if we accept her reading of Supreme Court

precedents. Our Court has rejected that reading for all the reasons

explained in the unanimous panel opinion.

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23-11037 ROSENBAUM, J., Dissenting 1

ROSENBAUM, Circuit Judge, joined by JILL PRYOR, ABUDU, and KIDD,

Circuit Judges, and by JORDAN, Circuit Judge, as to Parts I and III,

dissenting from the denial of rehearing en banc:

Twenty-three years ago, in Jackson v. Birmingham Board of Ed-

ucation, we held that a public-school teacher could not sue his em-

ployer under Title IX of the Education Amendments of 1972 for

gender-based discrimination he faced. See 309 F.3d 1333 (11th Cir.

2002), rev’d & remanded, 544 U.S. 167 (2005). The Supreme Court

reversed. And it emphasized that it had “consistently interpreted

Title IX’s private cause of action broadly to encompass diverse

forms of intentional sex discrimination.” Jackson, 544 U.S. at 183.

Yet today we repeat our mistake from twenty-three years

ago. We decline to correct our panel’s recent holding that no pub-

lic-school teacher can sue under Title IX for gender-based discrim-

ination she faced. See Joseph v. Bd. of Regents of the Univ. Sys. of Ga.,

121 F.4th 855 (11th Cir. 2024). Our decision shows that when it

comes to Title IX, we need some more education.

We are an inferior federal court. And Article III of the Con-

stitution binds us to adhere to all the decisions of the “one supreme

Court”—even if we don’t always agree with them. See U.S. CONST.

art. III; Ramos v. Louisiana, 590 U.S. 83, 124 n.5 (2020) (Kavanaugh,

J., concurring) (reiterating respect for the Supreme Court’s prece-

dents “is absolute, as it must be in a hierarchical system with ‘one

supreme Court’”). As the Court has explained, and we have

acknowledged, “[u]nless we wish anarchy to prevail within the fed-

eral judicial system, a precedent of [the Supreme] Court must be

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2 ROSENBAUM, J., Dissenting 23-11037

followed by the lower federal courts no matter how misguided the

judges of those courts may think it to be.” Litman v. Mass. Mut. Life

Ins., 825 F.2d 1506, 1509 (11th Cir. 1987) (en banc) (quoting Hutto

v. Davis, 454 U.S. 370, 375 (1982)).

But today we shirk our obligation. It’s telling that in the two

decades since Jackson, every one of our sister circuits that has con-

sidered whether a teacher may sue under Title IX has found they

may—the opposite conclusion of our Court. See Doe v. Mercy Cath.

Med. Ctr., 850 F.3d 545, 560 (3d Cir. 2017); Vengalattore v. Cornell

Univ., 36 F.4th 87, 106 (2d Cir. 2022); Hiatt v. Colo. Seminary, 858

F.3d 1307, 1316–17 (10th Cir. 2017); Campbell v. Haw. Dep’t of Educ.,

892 F.3d 1005, 1023 (9th Cir. 2018); see also Snyder-Hill v. Ohio State

Univ., 48 F.4th 686, 707–08 (6th Cir. 2022) (recognizing an em-

ployee may sue under Title IX when evaluating the suit of a non-

student, non-employee plaintiff).

Chief Judge William Pryor’s Statement Respecting Denial

tries to excuse the Joseph panel opinion’s failure to comply with

controlling Supreme Court precedent by invoking a different case

where the Supreme Court reversed us: Alexander v. Sandoval, 532

U.S. 275 (2001). But Jackson, decided four years after Sandoval, ex-

plains why Sandoval does not permit limiting the class of plaintiffs

Congress gave access to Title IX’s cause of action. And two earlier

cases that led to Jackson—Cannon v. University of Chicago, 441 U.S.

677 (1979), and North Haven Board of Education v. Bell, 456 U.S. 512

(1982)—also preclude the William Pryor Opinion’s reading of

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23-11037 ROSENBAUM, J., Dissenting 3

Sandoval and its progeny to remove employees’ implied private

cause of action under Title IX.

As the body of this dissental explains in detail, Cannon and

Jackson reason that anyone who falls into the category of “per-

son[s]” covered under Title IX necessarily enjoys an implied private

cause of action under the statute. And Bell and Jackson show that

educational employees are “person[s]” under Title IX. Those three

cases give us the answer key here: employees can sue under Title

IX.

To be sure, as the William Pryor Opinion notes, Title IX in-

cludes an enforcement mechanism that allows the cutting off of

federal funds for educational entities that discriminate. But the

funding-restriction mechanism kicks in regardless of whether the

entity discriminates (or retaliates) against students or employees.

And even the William Pryor Opinion concedes that students enjoy

an implied private cause of action under Title IX despite the federal-

funds remedy. Students have this implied private cause of action,

the Court has explained, because they are “person[s]” within the

meaning of Title IX—just as the Court has found that employees

are. And no text or structural aspects of Title IX distinguish be-

tween the applicability of the “person[s]” language to students ver-

sus employees.

With no apparent answer to this problem, the Joseph panel

opinion and the William Pryor Opinion pivot and note that Title

VII and Title IX provide some overlap in remedies. But contrary

to the panel opinion’s description, the Court has explained that the

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4 ROSENBAUM, J., Dissenting 23-11037

legislative history of Title IX shows that Congress intended the

law’s full force to apply against employment discrimination. See

Bell, 456 U.S. at 527–28. Not only that, but in 1986, four years after

Bell recognized Title IX prohibits employment discrimination,

Congress passed legislation that “‘ratified Cannon’s holding’ that

‘private individuals may sue to enforce’” Title IX and that placed

the existence of such a private right of action “beyond dispute.”

Cummings v. Premier Rehab Keller, P.L.L.C., 596 U.S. 212, 218 (2022)

(first quoting Sandoval, 532 U.S. at 280; and then quoting Barnes v.

Gorman, 536 U.S. 181, 185 (2002)).

And on top of that, the Court “repeatedly has recognized

that Congress has provided a variety of remedies, at times overlap-

ping, to eradicate employment discrimination.” See Bell, 456 U.S.

at 535 n.26. So an overlap in remedies does not provide a basis for

ignoring Congress’s policy determination and depriving employees

of access to Title IX suits.

In short, the Supreme Court has schooled us that educa-

tional employees enjoy an implied private cause of action under

Title IX. We have just failed to learn the lesson. And the William

Pryor Opinion doesn’t earn us any extra credit.

The panel’s holding also comes with real-world conse-

quences. Our decision makes ending sex discrimination in our

schools harder. Although some teachers may secure relief under

Title VII, that statute has procedural differences from Title IX—

including a significantly shorter statute of limitations—that make

filing claims more burdensome. This matters for teachers

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23-11037 ROSENBAUM, J., Dissenting 5

especially, who are overworked and underpaid already, particu-

larly during the schoolyear. Title IX’s filing deadlines are much

more accommodating and consistent with teachers’ workloads

than are Title VII’s.

Title IX also allows for the recovery of uncapped compensa-

tory damages. See Franklin v. Gwinnett Cnty. Pub. Schs., 503 U.S. 60,

76 (1992) (holding a damages remedy is available under Title IX).

By contrast, Title VII has tight limits on any compensatory dam-

ages available. See 42 U.S.C. § 1981a(b)(3). So by forcing teachers

to litigate under Title VII, we deprive them of relief that Congress

created for them.

Worse still, the panel did not limit its holding that a teacher

cannot sue for discrimination under Title IX to claims cognizable

under Title VII. That is, the panel didn’t rely on a theory that Title

IX precludes only overlapping claims. But “Title VII . . . is a vastly

different statute from Title IX . . . .” Jackson, 544 U.S. at 175. So to

the extent that in the future, we find substantive daylight between

the two independent statutes, some teachers who face discrimina-

tion might find themselves completely remediless.

I discuss my concerns in more detail in the following sec-

tions. Part I shows how the Joseph panel’s decision violates Su-

preme Court precedent. Part II reflects on the legislative develop-

ments after the Supreme Court issued its binding precedent, which

confirm Congress’s intent that Title IX provides an implied private

cause of action for educational employees. Part III reviews the de-

cisions of all five of our sister Circuits that, since Jackson, have

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6 ROSENBAUM, J., Dissenting 23-11037

considered whether Title IX offers a private right of action for edu-

cational employees. It shows that they unanimously have con-

cluded it does—leaving us as the sole outlier. And Part IV explains

why this case presents a question of “exceptional importance” that

warrants en banc review. For all these reasons, I respectfully dis-

sent from today’s denial of rehearing en banc.

I. The panel’s decision contradicts a long line of Su-

preme Court precedent.

Section 901(a) of Title IX unambiguously prohibits sex-based

discrimination against any “person” in “any education program or

activity” that receives federal monies. It provides,

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 un-

der any education program or activity receiving Fed-

eral financial assistance . . . .

Education Amendments of 1972, Pub. L. No. 92-318, § 901, 86 Stat.

235, 373 (1972) (codified as amended at 20 U.S.C. § 1681). Congress

enacted the statute under the Spending Clause, which gives Con-

gress the authority to provide federal funds with conditions. See

Joseph, 121 F.4th at 865.

Title IX has two enforcement mechanisms: the federal gov-

ernment may terminate funds if discrimination occurs, or victims

may sue in court under Title IX’s Supreme Court-recognized im-

plied cause of action (or both). See Cannon, 441 U.S. at 704–08

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23-11037 ROSENBAUM, J., Dissenting 7

(discussing how the two enforcement mechanisms work together

to accomplish Title IX’s goals).

But the panel opinion holds that Title IX “does not create an

implied right of action for sex discrimination in employment.” Jo-

seph, 121 F.4th at 869. That is, the panel opinion says employees

can’t bring suit under Title IX for discrimination they face. Accord-

ing to the panel, “[n]one of the[] Supreme Court precedents—Can-

non, Jackson, or Bell—speak to” that issue. Id. at 867. After dispatch-

ing the governing precedent, the panel opinion relies largely on

broader Spending Clause and implied-right-of-action cases like

Pennhurst State School and Hospital v. Halderman, 451 U.S. 1 (1981),

Alexander v. Sandoval, 532 U.S. 275 (2001), Gonzaga University v. Doe,

536 U.S. 273 (2002), and Gebser v. Lago Vista Independent School Dis-

trict, 524 U.S. 274 (1998), to conclude that Title IX contains no im-

plied cause of action for employees. See generally Joseph, 121 F.4th

at 864–69.

The panel opinion is wrong. And none of the authorities it

relies on support its holding. In fact, Supreme Court precedent be-

lies the panel’s assertion that Title IX contains no implied cause of

action against sex-based discrimination in education employment.

This section walks through each of the cases I mention

above, beginning with a discussion of how Joseph departs from Can-

non, Bell, and Jackson. It then explains why Pennhurst, Sandoval, Gon-

zaga, and Gebser cannot justify the panel’s methods. Ultimately,

this section shows that the Joseph panel opinion clashes with the

Supreme Court’s decisions.

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8 ROSENBAUM, J., Dissenting 23-11037

A. The panel disregards Cannon, Bell, and Jackson.

I begin with Cannon. There, the Supreme Court determined

that Title IX contains an implied cause of action for private victims

of discrimination that Title IX prohibits. Cannon, 441 U.S. at 709.

In concluding Title IX has an implied cause of action, the

Court considered four factors. Id. at 688–709. First, it observed

that “Title IX explicitly confers a benefit on persons discriminated

against on the basis of sex,” and the petitioner there—a medical-

school applicant—was “clearly a member of that class for whose

special benefit the statute was enacted.” Id. at 694.

Second, the Court found that “the history of Title IX rather

plainly indicates that Congress intended to create [an implied cause

of action].” Id. It highlighted that “Title IX was patterned after

Title VI of the Civil Rights Act of 1964” and “[i]n 1972 when Title

IX was enacted, the critical language in Title VI had already been

construed as creating a private remedy.” Id. at 694, 696 (footnote

omitted). And the Court concluded that the legislative history

showed Congress was aware of that fact. Id. at 699–701.

Third, the Court explained 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 [Title IX].” Id. at

705–06. Indeed, the Court explained, Title IX has two main pur-

poses: “to avoid the use of federal resources to support discrimina-

tory practices” and “to provide individual citizens effective protec-

tion against those practices.” Id. at 704. But “the termination of

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23-11037 ROSENBAUM, J., Dissenting 9

federal financial support for institutions . . . . is . . . severe and often

may not accomplish the second purpose if merely an isolated vio-

lation has occurred.” Id. at 704–05 (footnote omitted). And “it

makes little sense to impose on an individual . . . the burden of

demonstrating that an institution’s practices are so pervasively dis-

criminatory that a complete cut-off of federal funding is appropri-

ate.” Id. at 705.

And fourth, the Court rejected the notion that “implying a

federal remedy [under Title IX] is inappropriate because the subject

matter involves an area basically of concern to the States.” Id. at

708. Rather, the Court noted, “a prohibition against invidious dis-

crimination of any sort, including that on the basis of sex[,]” is

within the federal government’s wheelhouse. See id.

Three years after it issued Cannon, in Bell, as relevant here,

the Court held that “Title IX proscribes employment discrimination

in federally funded education programs.” Bell, 456 U.S. at 535–36

(emphasis added). Bell involved two public-school boards that faced

complaints by school employees. One employee—a tenured

teacher—complained that the school board had violated Title IX by

refusing to rehire her after her one-year maternity leave. Id. at 517.

The other—a school guidance counselor—complained that the

board had discriminated against her because of her gender with re-

spect to job assignments, working conditions, and the failure to re-

new her contract. Id. at 518. When the then-existing Department

of Health, Education, and Welfare investigated the boards for fail-

ure to comply with regulations against employment discrimination

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10 ROSENBAUM, J., Dissenting 23-11037

that the Department issued under Title IX, the boards challenged

the Department’s authority to issue those regulations. See id. at

514–19. But before determining whether the regulations exceeded

the Department’s authority, the Supreme Court first had to con-

sider whether Title IX’s reference to “persons” included educa-

tional employees in the first place. The Court concluded it did.

The Court arrived at this decision for several reasons.

First, “of course,” the Court began with the text of Title IX.

See id. at 520. As the Court explained, Title IX’s “broad directive

that ‘no person’ may be discriminated against on the basis of gender

appears, on its face, to include employees as well as students.” Id.

(emphasis added). Indeed, the Court continued, “Under that pro-

vision, employees, like other ‘persons,’ may not be ‘excluded from

participation in,’ ‘denied the benefits of,’ or ‘subjected to discrimi-

nation under’ education programs receiving federal financial sup-

port.” Id. (emphasis added). And “[e]mployees who directly par-

ticipate in federal programs or who directly benefit from federal

grants, loans, or contracts clearly fall within the first two protective

categories described in § 901(a)” of Title IX. Id. Not only that, but

“a female employee who works in a federally funded education

program is ‘subjected to discrimination under’ that program if she

is paid a lower salary for like work, given less opportunity for pro-

motion, or forced to work under more adverse conditions than are

her male colleagues.” Id. at 521.

Based on this reasoning, the Court determined that it

“should interpret [Title IX] as covering and protecting [employees]

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23-11037 ROSENBAUM, J., Dissenting 11

unless other considerations counsel to the contrary. After all,” the

Court said, “Congress easily could have substituted ‘student’ or

‘beneficiary’ for the word ‘person’ [in Title IX’s text] if it had wished

to restrict the scope of [Title IX].” Id. (footnote omitted).

That queued up the Court’s second consideration: whether

anything else in the text suggested that Congress did not intend for

Title IX to cover employees. See id. at 521–22. The Court rejected

any such suggestion. See id.

Third, the Court reviewed Title IX’s legislative history “for

evidence as to whether Congress meant somehow to limit the ex-

pansive language of [Title IX].” Id. at 522 (footnote omitted). It

found none. See id. at 523–35. To the contrary, the Court pointed

to legislative history that showed Congress intended for Title IX to

cover educational employees. See id.

Fourth, when the school boards argued that “the victims of

employment discrimination have remedies other than those avail-

able under Title IX,” the Court chided, “These policy considera-

tions were for Congress to weigh, and we are not free to ignore the

language and history of Title IX even were we to disagree with the

legislative choice.” Id. at 535 n.26. Not only that, the Court con-

tinued, but “even if alternative remedies are available and their ex-

istence is relevant,” the Supreme Court “repeatedly has recognized

that Congress has provided a variety of remedies, at times overlap-

ping, to eradicate employment discrimination.” Id.

So to sum up these two binding cases, Cannon held that Title

IX created an implied cause of action for private litigants who were

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12 ROSENBAUM, J., Dissenting 23-11037

“persons” to whom Title IX applies. And Bell held that educational

employees are “persons” to whom Title IX applies. Based on Can-

non and Bell alone, then, the panel opinion, which concludes em-

ployees enjoy no implied cause of action under Title IX, is clearly

wrong.

Add Jackson to Cannon and Bell, and the panel opinion’s error

becomes even more confounding. In Jackson, a high-school basket-

ball coach complained that the girls’ team he coached was not re-

ceiving equal resources. Jackson, 544 U.S. at 171–72. In response,

his supervisors began to give him negative work evaluations and

eventually removed him from his coaching position. Id. at 172.

Jackson sued the school board, alleging that the board violated Ti-

tle IX by retaliating against him for protesting the discrimination

against the girls’ basketball team. Id. The district court dismissed

the coach’s case after concluding that Title IX doesn’t provide a pri-

vate right of action for retaliation, and we affirmed. Id.

The Supreme Court reversed. Id. at 171. It explained that

“[r]etaliation against a person because that person has complained

of sex discrimination is another form of intentional sex discrimination

encompassed by Title IX’s private cause of action.” Id. at 173 (emphasis

added). And then the Court reversed our Court’s judgment against

the coach—a school employee—and remanded to allow his sex-

based retaliation claim to proceed. See id. at 184. So even inde-

pendently of Cannon and Bell, Jackson stands for the proposition that

Title IX provides an implied cause of action for an educational em-

ployee discriminated against on the basis of sex.

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23-11037 ROSENBAUM, J., Dissenting 13

But together, this trilogy of cases—Cannon, Bell, and Jack-

son—necessarily demands the conclusion that the panel opinion

here is wrong.

Of course, the panel opinion attempts to distinguish and

limit Cannon, Bell, and Jackson. But the panel opinion’s efforts fail

because they are contrary to the Supreme Court’s statements and

reasoning in and since these cases.

The panel opinion dismissed Cannon as irrelevant because it

said that Cannon’s finding of an implied cause of action under Title

IX applies to students only, not employees. Joseph, 121 F.4th at 866.

And to be sure, Cannon involved a Title IX challenge by a prospec-

tive student, not an employee. See Cannon, 441 U.S. at 680.

But the panel’s sidelining of Cannon requires us to ignore

Cannon’s reasoning for why Title IX contains an implied cause of

action for students. Cannon recognized an implied cause of action

under Title IX for the student there because it considered (1) the

text of Title IX; (2) the legislative history of Title IX; (3) the con-

sistency of an implied cause of action with the rest of Title IX; and

(4) the appropriateness of implying a federal cause of action. And

based on those things, the Court determined that the statute con-

tained a cause of action for the general category of “persons” under

Section 901(a) of Title IX. After all, the text states, “No person in

the United States shall, on the basis of sex, be excluded from partic-

ipation in, be denied the benefits of, or be subjected to discrimina-

tion under any education program or activity receiving Federal fi-

nancial assistance . . . .” (emphasis added). Only because the

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14 ROSENBAUM, J., Dissenting 23-11037

student was a “person” under Section 901(a), she was “a member

of that class for whose special benefit the statute was enacted.” Can-

non, 441 U.S. at 694 (emphasis added).

As the Court explained, “There would be far less reason to

infer a private remedy in favor of individual persons if Congress, instead

of drafting Title IX with an unmistakable focus on the benefited class

[referring to the term “persons” in § 901(a)], had written it simply

as a ban on discriminatory conduct by recipients of federal funds or

as a prohibition against the disbursement of public funds to educa-

tional institutions engaged in discriminatory practices.” Id. at 690–

93 (emphases added) (footnote omitted); see also id. at 690 n.13 (col-

lecting cases where the Supreme Court has found an implied cause

of action when the operable statute referred to individuals, such as

“person[s]”). Indeed, the Court observed, “because the right to be

free of discrimination is a personal one, a statute conferring such a

right will almost have to be phrased in terms of the persons bene-

fited” and thus imply a cause of action for them. Id. at 690 n.13

(cleaned up). So necessarily, Cannon recognized that anyone who

qualifies as a “person” within the meaning of Section 901(a) is a part

of the “class for whose especial benefit the statute was enacted” and

thus enjoys an implied cause of action under Title IX. Id. at 688 n.9

(cleaned up).

Granted, standing alone, Cannon doesn’t tell us whether an

employee falls within the category of “person” under Title IX.

But Bell does. It says, “Because § 901(a) neither expressly nor

impliedly excludes employees from its reach, we should interpret the

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23-11037 ROSENBAUM, J., Dissenting 15

provision as covering and protecting these ‘persons’ unless other consid-

erations counsel to the contrary.” Bell, 456 U.S. at 521 (emphasis

added). The opinion then determines that no “other considera-

tions counsel to the contrary.” See id. at 521–40.

Yet the Joseph panel opinion brushes off Bell. Joseph, 121

F.4th at 867. In doing so, it inaccurately characterizes what the Su-

preme Court did there. The panel opinion asserts that “[t]he Su-

preme Court . . . held that because ‘[section] 901(a) neither ex-

pressly nor impliedly excludes employees from its reach,’ Title IX

‘cover[s] and protect[s]’ employees through the statute’s funding

conditions structure.” Id. (quoting Bell, 456 U.S. at 521). That’s

simply wrong. The Supreme Court limited its holding in Bell in no

such way. We know this for at least six reasons.

First, the Supreme Court’s full quotation tells us so. As I’ve

noted, the actual quotation says, “Because § 901(a) neither ex-

pressly nor impliedly excludes employees from its reach, we should

interpret the provision as covering and protecting these ‘persons’ unless

other considerations counsel to the contrary.” Bell, 456 U.S. at 521

(emphasis added). Nowhere does this quotation or the context in

which it appears purport to limit Title IX’s inclusion of employees

as “person[s]” to Title IX’s funding remedies. Rather, as we know

from Cannon, § 901(a) provides an implied cause of action for any-

one who qualifies as a “person” under that section. In fact, as I’ve

noted, Cannon expressly tells us that Congress did not limit the

remedies of those who qualify as “person[s]” under Section 901(a)

to simply “a prohibition against the disbursement of public funds

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16 ROSENBAUM, J., Dissenting 23-11037

to educational institutions engaged in discriminatory practices.”

Cannon, 441 U.S. at 690–93 (footnote omitted).

Second, nothing at pages 521 or 530 of Bell, which Joseph

pincites as purported authority for its attempt to limit Bell’s hold-

ing, see Joseph, 121 F.4th at 867, in fact supports Joseph’s novel inter-

pretation of that case. And there’s simply no other statement or

reasoning in Bell that justifies the panel’s limitation. Look as much

as you want; it’s not there.

Third, the panel’s effort to limit Bell’s holding to protect em-

ployees through only the withholding of federal funding is illogical.

As I’ve noted, Bell holds that Title IX covers employees because

they are “persons” under Section 901(a)’s text. See Bell, 456 U.S. at

522 (“Title IX’s broad protection of ‘person[s]’ does extend to em-

ployees of educational institutions.”); see also id. at 520 (“Under

[Section 901(a)], employees, like other ‘persons,’ may not be ‘ex-

cluded from participation in,’ ‘denied the benefits of,’ or ‘subjected

to discrimination under’ education programs receiving federal fi-

nancial support.”). And Cannon tells us Congress enacted Title IX

for the benefit of those who fall within the category of “persons”

under Section 901(a)’s text, so those “person[s]” enjoy an implied

private cause of action.

The Joseph panel tries to avoid this inconvenient fact by not-

ing that Bell involved challenges to the Department’s application of

regulations it used to determine whether to withhold federal fund-

ing and then stating that “nothing about [Section 901(a)’s] language

indicates congressional intent to provide a private right of action to

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23-11037 ROSENBAUM, J., Dissenting 17

employees of educational institutions.” See Joseph, 121 F.4th at 867–

68. But the Supreme Court found that the very same text of Sec-

tion 901(a) that required it to conclude students have an implied

private cause of action under Title IX—“No person . . . shall, on the

basis of sex, be excluded from participation in, be denied the bene-

fits of, or be subjected to discrimination under any education pro-

gram or activity receiving Federal financial assistance” (emphasis

added)—also “cover[s] and protect[s]” employees. Bell, 456 U.S. at

521. And the panel does not explain how the very same text that

“cover[s] and protect[s]” both students and employees somehow

limits its coverage of a “person” under Title IX (and thus the avail-

ability of an implied cause of action) for employees but not for stu-

dents.

Fourth, as the Supreme Court painstakingly reviews over

twelve pages in Bell, Title IX’s legislative history shows that Con-

gress intended to provide the statute’s protections equally to stu-

dents and employees. See id. at 523–35. For instance, the Court

relies on the statements of Senator Bayh, the sponsor of the lan-

guage that Congress ultimately enacted, as “an authoritative guide

to the statute’s construction.” Id. at 526–27. And Senator Bayh

explained, in speaking about “the scope of the sections that in large

part became §§ 901(a) and (b),” “we are dealing with three basically

different types of discrimination here. We are dealing with dis-

crimination in admission to an institution, discrimination of avail-

able services or studies within an institution once students are ad-

mitted, and discrimination in employment within an institution, as a

member of a faculty or whatever. In the area of employment, we permit

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18 ROSENBAUM, J., Dissenting 23-11037

no exceptions.” Id. at 526 (emphasis in original) (internal quotation

marks & citation omitted). In other words, the same rules and rem-

edies apply to discrimination in employment in education as apply

to discrimination against students in education.

The Court also pointed to an early draft of Title IX to show

that Congress intended the law’s full force to apply against employ-

ment discrimination. See id. at 527–28. As the Court explained,

Congress based Title IX on Title VI, borrowing near identical lan-

guage from that statute. See id. at 514. But it departed from Title

VI in at least one important way: Title VI reaches employment dis-

crimination only when the primary purpose of the federal funds is

to support employment, but that is not the case with Title IX. See

id. at 527–28; 42 U.S.C. § 2000d-3. In fact, the House version of

Title IX originally included a parallel limitation, but that limitation

was eliminated at conference. Bell, 457 U.S. at 527–28. And Senator

Bayh highlighted this change: “Title VI . . . specifically excludes

employment from coverage (except where the primary objective of

the federal aid is to provide employment). There is no similar exemp-

tion for employment in” Title IX. Id. at 531 (quoting 118 CONG. REC.

24684, n.1 (1972) (first emphasis in original; second emphasis

added)).

The Joseph panel opinion ignores Bell’s analysis of Title IX’s

legislative history and substitutes its own half-page abridged ver-

sion. See Joseph, 121 F.4th at 868. That alternative version con-

cludes that “Title IX’s enforcement mechanism relied on the carrot

and stick of federal funding to combat sex discrimination[,]” even

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23-11037 ROSENBAUM, J., Dissenting 19

though the panel opinion acknowledges that Title IX “also provides

an implied right of action for students.” Id. The panel opinion tries

to explain the inconsistency in its approach by simply noting that

educational employees have a private cause of action for employ-

ment discrimination under Title VII and speculating, “It is unlikely

that Congress intended Title VII’s express private right of action

and Title IX’s implied right of action to provide overlapping reme-

dies [for educational employees].” Id. at 869.

But Bell expressly rejects this kind of thinking for two inde-

pendent reasons. See Bell, 456 U.S. at 535 n.26. First, Bell explains

that “policy considerations [that “the victims of employment dis-

crimination have remedies other than those available under Title

IX”] were for Congress to weigh, and we are not free to ignore the

language and history of Title IX even were we to disagree with the

legislative choice.” Id. And second, Bell notes, “even if alternative

remedies are available and their existence is relevant, but cf. Cannon

v. University of Chicago, 441 U.S., at 711 . . . [(“The fact that other

provisions of a complex statutory scheme create express remedies

has not been accepted as a sufficient reason for refusing to imply

an otherwise appropriate remedy under a separate section.”)], this

Court repeatedly has recognized that Congress has provided a va-

riety of remedies, at times overlapping, to eradicate employment

discrimination.” Id.

In fact, in dissent, Justice Powell tried to advance the same

rationale that the Joseph panel puts forth. He stressed that “Title

VII is a comprehensive antidiscrimination statute with carefully

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20 ROSENBAUM, J., Dissenting 23-11037

prescribed procedures for conciliation by the EEOC [Equal Em-

ployment Opportunity Commission], federal-court remedies avail-

able within certain time limits, and certain specified forms of relief

. . . . in sharp contrast to Title IX.” Id. at 552 (Powell, J., dissenting).

But the Bell majority rejected his view.

Not only that, but Jackson too supports the conclusion that a

plaintiff can bring overlapping claims between Title VII and Title

IX. Title VII prohibits retaliation against anyone who complains of

“an unlawful employment practice” under that statute. 42 U.S.C §

2000e-3(a). Yet Jackson determined that an employee who was re-

taliated against for speaking out against discrimination (that would

violate Title VII) in his own job can file a claim directly under Title

IX. See Jackson, 544 U.S. at 179 (“The complainant is himself a vic-

tim of discriminatory retaliation, regardless of whether he was the

subject of the original complaint.”).1 So Jackson recognized the ex-

istence of overlapping claims between Titles VII and IX. After all,

the underlying reason the Jackson plaintiff could bring his claim was

that he was an employee who had experienced discrimination. See

id. at 173–77. For that reason, the Joseph panel opinion’s preclusion

argument is also contrary to Jackson.

Fifth, we also know from Jackson that Bell’s holding didn’t

limit Title IX’s coverage of employees to the remedy of withhold-

ing federal funds. Jackson wouldn’t have found that the coach there

1 To the extent that the Joseph panel opinion dismissed appellant Crowther’s

retaliation claim based on a contrary reading of Jackson, it too should have

been revisited. See Joseph, 121 F.4th at 870.

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23-11037 ROSENBAUM, J., Dissenting 21

enjoyed an implied private cause of action for the retaliation he

faced after complaining about sex discrimination if employees en-

joyed no implied private cause of action under Title IX.

To be sure, the Joseph panel opinion asserts that the Jackson

coach enjoyed an implied private cause of action only because the

sex discrimination he complained of involved students. Joseph, 121

F.4th at 866. But that ignores what the Supreme Court said about

the facts and the law in Jackson (not to mention the line-drawing

problems it creates). As the Court explained, the plaintiff coach

complained about the girls’ team’s inadequate funding, equipment,

and facilities because these things “made it difficult for Jackson to do his

job as the team’s coach.” Jackson, 544 U.S. at 171 (emphasis added).

In other words, the sex-based discrimination discriminated against

the coach in the terms and conditions of his employment. So the

Supreme Court said that the suit could move forward because Title

IX bars “intentional ‘discrimination’ ‘on the basis of sex,’” and “[re-

taliation] is a form of ‘discrimination’ because the complainant is be-

ing subject to differential treatment.” Id. at 174 (emphasis added).

Put another way, the underlying claim recognized in Jackson was

discrimination against an “employee.” And the retaliation claim

could move forward only because it fell into that category. See id.

at 178 (“[R]etaliation falls within the statute’s prohibition of inten-

tional discrimination on the basis of sex”).

The Court reached this conclusion even though the Jackson

dissent stressed that “extending the implied cause of action under

Title IX to claims of retaliation expands the class of people the

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22 ROSENBAUM, J., Dissenting 23-11037

statute protects beyond the specified beneficiaries [of people who

had been discriminated against on the basis of sex].” Id. at 192

(Thomas, J., dissenting). Indeed, the Court confirmed that “Title

IX’s beneficiaries plainly include all those who are subjected to ‘dis-

crimination’ ‘on the basis of sex.’” Id. at 179 n.3 (emphases added).

In other words, the Court confirmed that, as “person[s]” within the

meaning of Section 901(a), employees enjoy an implied private

cause of action under Title IX.

But on top of that, in Gomez-Perez v. Potter, writing for the

Court, Justice Alito said that “Jackson did not hold that Title IX pro-

hibits retaliation because the Court concluded as a policy matter

that such claims are important. Instead, the holding in Jackson was

based on an interpretation of the ‘text of Title IX.’” 553 U.S. 473,

484 (2008) (quoting Jackson, 544 U.S. at 173, 178). At bottom, the

Court recognized, the position that “a claim of retaliation is con-

ceptually different from a claim of discrimination . . . . did not pre-

vail” in Jackson. Id. at 481. Jackson could bring his retaliation claim

only because it was a permissible employment-discrimination ac-

tion. 2 But the Joseph panel nowhere addressed Gomez-Perez’s un-

derstanding of Jackson.

2 In fact, no Justice in Jackson questioned that employees could bring suits for

employment discrimination. Even the dissent was not concerned that an em-

ployee was bringing a claim under Title IX; it objected that “Jackson’s claim

for retaliation is not a claim that his sex played a role in his adverse treatment.”

Jackson, 544 U.S. at 187 (Thomas, J., dissenting). The dissent raised no objec-

tions to an employee suing directly under Title IX, under Cannon, for

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23-11037 ROSENBAUM, J., Dissenting 23

In short, controlling Supreme Court precedent is clear: em-

ployees enjoy an implied private cause of action under Title IX.

The Joseph panel opinion, which reaches the opposite conclusion,

defies that binding precedent.

B. Other Supreme Court precedent does not support the panel’s

conclusions.

Perhaps the panel opinion could justify disregarding the Su-

preme Court’s marching orders if the Court gave us contradictory

directives. But none of the principal authorities the panel opinion

relies on—Pennhurst, Sandoval, Gonzaga, and Gebser—can support

its holding. See Joseph, 121 F.4th at 864–69. I explain why for each.

I start with Pennhurst. Pennhurst provides the framework for

considering when conditions on legislation enacted under the

Spending Clause (like Title IX) are permissible. See 451 U.S. at 15–

27. That case establishes that funding “conditions are binding only

if they are clear and ‘the recipient voluntarily and knowingly ac-

cepts the terms . . . .’” Joseph, 121 F.4th at 866 (quoting Cummings,

596 U.S. at 219). So, the panel opinion reasons, “we should not

recognize” an “implied right of action [that] would impose unclear

conditions or remedies . . . .” Id. And in the panel opinion’s view,

allowing employees to sue under Title IX would do just that.

discrimination they personally faced. See id. (citing Bell as an example of a case

where “a claimant . . . sought to recover for discrimination because of her own

sex”).

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24 ROSENBAUM, J., Dissenting 23-11037

But once again, Jackson (not to mention Cannon and Bell) pre-

cludes the panel’s reasoning. It explains that “[f]unding recipients

have been on notice that they could be subjected to private suits

for intentional sex discrimination under Title IX since 1979, when

[the Court] decided Cannon.” Jackson, 544 U.S. at 182. So, Jackson

continues, “Pennhurst does not preclude private suits for intentional

acts that clearly violate Title IX.” Id. And it’s been clear since at

least 1982, when the Court issued Bell, that employment discrimi-

nation (an intentional act by its nature) violates Title IX. Bell, 456

U.S. at 520.

The panel opinion also invokes Sandoval and Gonzaga—each

of which the Supreme Court decided a few years before it issued

Jackson. Sandoval holds that Title VI does not have a private cause

of action “to enforce regulations promulgated” under that statute.

Sandoval, 532 U.S. at 293 (emphasis added). In reaching that con-

clusion, as Joseph recognizes, Sandoval holds that “statutory intent”

to create a private cause of action is necessary to find a private

cause of action. Id. at 286. “Without it, a cause of action does not

exist and courts may not create one . . . .” Id. at 286–87.

And Gonzaga holds that provisions of the Family Educa-

tional Rights and Privacy Act of 1974 are not enforceable in a 42

U.S.C. § 1983 action because they “create no personal rights . . . .” 3

Gonzaga, 536 U.S. at 276. To reach that conclusion, the Court had

to “first determine whether Congress intended to create a federal

3 Section 1983 allows for suits against state and local officials who violate fed-

eral rights. See 42 U.S.C. § 1983.

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23-11037 ROSENBAUM, J., Dissenting 25

right.” Id. at 283 (emphasis in original). As Joseph tells it, Gonzaga

“rejects the notion that [the Court’s] cases permit anything short of

an unambiguously conferred right to support a cause of action.”

Joseph, 121 F.4th at 865 (quoting Gonzaga, 536 U.S. at 283).

Based on these two pre-Jackson decisions, the Joseph panel

concludes that “[w]here implied rights of action exist, we must

honor them, but we cannot expand their scope without assuring

ourselves that Congress unambiguously intended a right of action

to cover more people or more situations than courts have yet rec-

ognized.” Id. at 865. Then, once again relying on its erroneous

conclusion that Cannon, Bell, and Jackson don’t recognize a right of

action for employment discrimination under Title IX, the panel

opinion states that Title IX lacks such an implied private cause of

action. Id. at 867–69.

We already know that the panel opinion’s (mis)reading of

Cannon, Bell, and Jackson, in violation of what they hold, is wrong.

But on top of that, the panel opinion’s ruling also gets Sandoval and

Gonzaga wrong. As it turns out, they also fully support the conclu-

sion that Cannon recognizes a broad scope of entitled plaintiffs un-

der Title IX.

Sandoval explains that it’s “beyond dispute that private indi-

viduals may sue to enforce” the statutory right conferred by Title

VI (and by extension Title IX, which has identical language). Sand-

oval, 532 U.S. at 280. And it recognizes that the 1986 congressional

amendments to Title IX “cannot be read except as a validation of

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26 ROSENBAUM, J., Dissenting 23-11037

Cannon’s holding.” Id. So what was once an implied cause of action

effectively became an express one.

In fact, like the Joseph panel opinion, the defendants in Jack-

son argued Sandoval prohibited recognizing employees’ retaliation

claims under Title IX. But the Court rejected that argument. Jack-

son, 544 U.S. at 178. It explained that employee retaliation claims

were “[i]n step with Sandoval” so long as they do “not rely on reg-

ulations extending Title IX’s protection beyond its statutory lim-

its . . . .” Id. So employees can bring suits for retaliation because

“the statute itself contains the necessary prohibition.” Id. (emphasis

in original).

Here, the plaintiff does not rely on regulations as in Sando-

val. Rather, the plaintiff invokes the statutory text. And under Bell,

an employee is a “person” under Title IX. So Title IX’s implied

private right of action extends to employment discrimination in ed-

ucation.

Gonzaga offers even less support for Joseph than does Sando-

val. It recognizes that “Title IX of the Education Amendments of

1972 create[s] individual rights because [that] statute[] [is] phrased

‘with an unmistakable focus on the benefited class,’”—the benefited

class consisting of those falling within the meaning of “person” un-

der Title IX. Gonzaga, 536 U.S. at 284 & n.3 (emphasis in original)

(quoting Cannon, 441 U.S. at 691). Indeed, the Court explains, un-

like with the right-creating language in Title IX, “[w]here a statute

does not include this sort of explicit ‘right- or duty-creating lan-

guage,’ we rarely impute to Congress an intent to create a private

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23-11037 ROSENBAUM, J., Dissenting 27

right of action.” Id. (emphases added) (citations omitted). So the

panel opinion cannot justify its conclusion by relying on Gonzaga.

The final major authority the Joseph panel opinion mistak-

enly relies on is Gebser, which the Court decided seven years before

Jackson. See Joseph, 121 F.4th at 869. Gebser holds that a school dis-

trict may be held liable in damages under Title IX for a teacher’s

sexual harassment of a student only if “an official of the school dis-

trict who at a minimum has authority to institute corrective

measures on the district’s behalf has actual notice of, and is delib-

erately indifferent to, the teacher’s misconduct.” Gebser, 524 U.S.

at 277.

In reaching that conclusion, the Court explains that

“[b]ecause the private right of action under Title IX is judicially im-

plied, we have a measure of latitude to shape a sensible remedial

scheme that best comports with the statute.” Id. at 284. Then the

Court notes that Title IX’s express enforcement mechanism—the

withdrawal of federal funding—“operates on an assumption of ac-

tual notice to officials of the funding recipient.” Id. at 288. In fact,

the Court continues, “an agency may not initiate enforcement pro-

ceedings until it ‘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. (cita-

tion omitted). Given that Title IX’s express enforcement mecha-

nism requires actual notice and the rough equivalent of deliberate

indifference, the Court reasons, Title IX’s implied remedy must

likewise require these same things. See id. at 289–90.

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28 ROSENBAUM, J., Dissenting 23-11037

The Joseph panel opinion points to language from Gebser that

says, “To guide the analysis, we 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 pur-

pose.” See Joseph, 121 F.4th at 867 (quoting Gebser, 524 U.S. at 284).

Based on this language, the Joseph panel then independently evalu-

ated the “text of Title IX and its statutory structure,” disregarding

Cannon, Bell, and Jackson, to conclude Title IX’s cause of action

doesn’t include employment-discrimination claims. Id. at 867–69.

But Gebser holds only that the scope of the implied private remedy

for “person[s]” under Title IX must comport with the structure and

purpose of Title IX. See Gebser, 524 U.S. at 284. Gebser doesn’t in

any way purport to give courts license to reevaluate whether an

implied right of action for “person[s]” under Title IX exists in the

first place. After all, Cannon, Bell, and Jackson already hold that it

does.

And the Court has never restricted access to Title IX’s cause

of action to any subclass of these “person[s]” subject to intentional

sex discrimination. In fact, in upholding employee-retaliation ac-

tions in Jackson, the Court explained that its “cases since Cannon,

such as Gebser . . . , have consistently interpreted Title IX’s private

cause of action broadly to encompass diverse forms of intentional

sex discrimination.” Jackson, 544 U.S. at 183. Put simply, we don’t

have authority to eliminate employment-discrimination actions

“because the statute itself contains the necessary prohibition.” Cf.

id. at 178.

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23-11037 ROSENBAUM, J., Dissenting 29

So none of the panel opinion’s cited authorities support its

conclusions. And the panel’s holding defies Cannon, Bell, and Jack-

son.

II. Legislative developments since Cannon and Bell

further confirm that Congress intended a private

cause of action for “person[s]” under Title IX.

Not only does Supreme Court precedent require the conclu-

sion that Title IX contains an implied private right of action for ed-

ucational employees who experience intentional discrimination,

but in the years following Cannon and Bell, Congress has effectively

blessed the Court’s conclusions in those cases.

As I’ve discussed, in 1979, in Cannon, the Supreme Court de-

termined that Title IX contains a private implied cause of action for

“person[s]” within the meaning of that statute. Three years later,

in 1982, the Court issued Bell, concluding that employees are “per-

son[s]” under Title IX. Congress has since amended Title IX in

ways that have led the Supreme Court “to conclude that Congress

did not intend to limit the remedies available in a suit brought un-

der Title IX” to relief other than damages. Franklin, 503 U.S. at 72.

Through the Rehabilitation Act Amendments of 1986, 100

Stat. 1845, 42 U.S.C. § 2000d-7, “Congress . . . ratified Cannon’s hold-

ing.” Sandoval, 532 U.S. at 280. It “expressly abrogated States’ sov-

ereign immunity against suits brought in federal court to enforce”

Title IX. Id.; see 42 U.S.C. § 2000d-7. Faced with Cannon, Congress

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30 ROSENBAUM, J., Dissenting 23-11037

expanded the number of actions that could be brought under Title

IX. And Congress also provided that “remedies (including reme-

dies both at law and in equity) are available . . . to the same extent

as such remedies are available . . . in the suit against any public or

private entity other than a State.” 42 U.S.C. § 2000d-7(a)(2). So

Congress expressly acknowledged that public and private entities

could already be sued under Title IX. This statute “cannot be read

except as a validation of Cannon’s holding.” Sandoval, 532 U.S. at

280 (quoting Franklin, 503 U.S. at 72).

Congress’s 1986 amendments of Title IX came four years af-

ter the Court’s opinion in Bell and seven after its decision in Cannon.

So when Congress chose to expressly acknowledge and expand the

cause of action under Title IX, it knew the Court interpreted the

statute to prohibit employment discrimination. Indeed, at least

one of our sister circuits had already taken it as a given that em-

ployees could sue under Title IX. See O’Connor v. Peru State Coll.,

781 F.2d 632, 642 n.8 (8th Cir. 1986) (“Claims of discriminatory em-

ployment conditions are cognizable under Title IX.” (citing Bell,

456 U.S. 512)); see also Thompson v. Bd. of Educ. of Romeo Cmty. Schs.,

709 F.2d 1200, 1202, 1206 (6th Cir. 1983) (adjudicating the class-ac-

tion certification and standing of pregnant teachers suing their

schools under Title IX). In other words, even if we ignore, on their

own terms, the Supreme Court’s conclusions in Cannon and Bell

that the 1972 Congress intended an implied private right of action

for “person[s]” under Title IX and employees are such “person[s],”

in 1986, when Congress amended the statute, it intended such a

right of action.

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23-11037 ROSENBAUM, J., Dissenting 31

In fact, when Congress passed the 1986 amendments, it “cor-

rect[ed] what it considered to be an unacceptable decision” of the

Supreme Court. Franklin, 503 U.S. at 73 (citing Grove City Coll. v.

Bell, 465 U.S. 555 (1984)). Yet tellingly, though it did so, Congress

neither abrogated the Court’s holding in North Haven Board of Edu-

cation v. Bell nor limited the cause of action in Cannon to students,

as the panel opinion did.

This is especially noteworthy because in the years following

Title IX’s passage, Congress also refused to pass legislation to re-

move employment discrimination from Title IX’s coverage. See

Bell, 456 U.S. at 534–35 (noting that Congress took no action on

two bills that would have amended Title IX to exclude coverage

for employees, one of which Senator Bayh opposed in part on the

ground that it “would exempt those areas of traditional discrimina-

tion against women that are the reason for the congressional enact-

ment of title IX,” including “employment and employment bene-

fits.” (citing S. 2146, § 2(1), 94th CONG. 1st Sess. (1975); 121 CONG.

REC. 23845–47 (1975); S.2657, 94th CONG. 2d Sess. (1976); 122

CONG. REC. 28136, 28144, 28147 (1976))); see also, e.g., Franklin, 503

U.S. at 73 (noting that the Civil Rights Restoration Act of 1987, Pub.

L. 100-259, 102 Stat. 28 (1987), did not “in any way alter[] the exist-

ing rights of action and the corresponding remedies permissible un-

der Title IX,” but rather “broadened the coverage” of Title IX).

In sum, both in the process leading to Title IX’s enactment and in

the years following the Supreme Court’s decisions in Cannon and

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32 ROSENBAUM, J., Dissenting 23-11037

Bell, Congress has shown its intent for Title IX to provide employ-

ees with an implied private right of action.

III. Every other Circuit that, since Jackson, has consid-

ered whether Title IX provides an implied private

cause of action for employees has concluded it

does.

Since the Supreme Court issued Jackson in 2002, holding that

the employee there enjoyed an implied private cause of action un-

der Title IX, every other Circuit that has considered the question—

five in all—have (unsurprisingly) likewise held that employees

have an implied private cause of action under Title IX. Not only

that, but most of our sister Circuits have expressly found that Su-

preme Court precedent requires that conclusion.

I begin with Doe v. Mercy Catholic Medical Center, 850 F.3d 545

(3d Cir. 2017). There, the Third Circuit held that “Title VII’s con-

current applicability does not bar [the employee plaintiff’s] private

causes of action for retaliation and quid pro quo harassment under

Title IX.” Id. at 560. In reaching this conclusion, the court noted

that the Fifth and Seventh Circuits had, before Jackson issued, con-

cluded that Title VII precludes employees’ access to Title IX’s pri-

vate right of action for employees. Id. at 563 (discussing Lakoski v.

James, 66 F.3d 751 (5th Cir. 1995), and Waid v Merrill Area Pub. Schs.,

91 F.3d 857 (7th Cir. 1996)). But the court rejected those courts’

conclusions, observing that the cases “were decided a decade

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23-11037 ROSENBAUM, J., Dissenting 33

before the Supreme Court handed down Jackson, which explicitly

recognized an employee’s private claim under Cannon.” Id.

Similarly, the Second Circuit determined in Vengalattore v.

Cornell University, 36 F.4th 87 (2d Cir. 2022), that an implied cause

of action for employees exists under Title IX. It reviewed Cannon,

Bell, Franklin, and Jackson and also rejected Lakoski, the pre-Jackson

opinion that found no implied cause of action for employees. Id.

at 104–06. The Second Circuit said that, “having the benefit of all

of the Supreme Court decisions discussed” and “given the Supreme

Court’s Title IX rulings in Cannon and [Bell], we must honor the

breadth of Title IX’s language. We thus hold that Title IX allows a

private right of action for a university’s intentional gender-based

discrimination against a faculty member . . . .” Id. at 105–06.

Hiatt v. Colorado Seminary, 858 F.3d 1307 (10th Cir. 2017), is

no different. There, the Tenth Circuit considered an educational

employee’s suit against her former employer under, among other

laws, Title IX. See id. at 1314. The court first cited Bell for the prop-

osition that Title IX “includes a prohibition on employment dis-

crimination in federally funded educational programs.” Id. at 1315.

Then the court noted that Jackson “interpret[ed] Title IX as creating

a private right of action for [a claim of retaliation against a person

for complaining of sex discrimination].” Id. Without further ado,

the court considered whether the employee there had established

a prima facie case of discrimination.

As for the Sixth Circuit, it had to determine whether con-

tract employees and visiting students enjoy an implied private right

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34 ROSENBAUM, J., Dissenting 23-11037

of action under Title IX in Snyder-Hill v. Ohio State University, 48

F.4th 686, 707–09 (6th Cir. 2022). In concluding they do, the court

explained, “[W]e have never limited the availability of Title IX

claims to employees or students.” Id. at 707. The court quoted Bell

and noted that Congress “did not limit” Title IX by “substitut[ing]

‘student’ or ‘beneficiary’ for the word ‘person,’” so “Title IX’s plain

language sweeps more broadly.” Id. (quoting Bell, 456 U.S. at 521).

Finally, in Campbell v. Hawaii Department of Education, 892

F.3d 1005 (9th Cir. 2018), the Ninth Circuit apparently viewed the

notion that Title IX provides for an implied private right of action

for employees as so well settled that it simply noted that it “gener-

ally evaluate[s] employment discrimination claims brought under

[Title IX and Title VII] identically . . . .” Id. at 1023. Then the court

addressed the merits of the plaintiff employee’s Title IX claims for

intentional sex discrimination. See id. at 1024.

Since the Supreme Court issued Jackson, the Joseph panel

opinion stands alone both in holding that Title IX includes no im-

plied private right of action for employees and that the Cannon, Bell,

and Jackson trilogy doesn’t require that conclusion.

IV. This case is one of “exceptional importance” war-

ranting en banc review.

The panel decision also raises a question of “exceptional im-

portance.” FED. R. APP. P. 35(a)(2). First, as I’ve explained, it vio-

lates binding Supreme Court precedent. Second, the panel decision

usurps congressional policy-making authority. And third, this case

concerns the scope of a cause of action at the heart of Congress’s

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23-11037 ROSENBAUM, J., Dissenting 35

intentions for Title IX, the principal tool for eliminating sex dis-

crimination in our schools. While Cannon originally implied a

cause of action under Title IX, Congress placed “beyond dispute”

the proposition that Title IX is privately enforceable. See Sandoval,

532 U.S. at 280. And Joseph has undermined Congress’s vision for

who gets to sue under a piece of critical civil-rights legislation. In

doing so, Joseph deprives educational employees of a remedy Con-

gress created for them.

As I’ve noted, the Supreme Court has found that the text and

legislative history of Title IX require the conclusion that Congress

intended for the law to cover educational employees. Congress’s

decision to provide employees with a private cause of action under

Title IX was a policy judgment for Congress’s determination, not

ours. Our job is to simply recognize Congress’s intent to allow em-

ployees to sue directly under Title IX.

It’s especially important that the panel’s error be corrected

because Title IX has significant differences from Title VII, and the

loss of the Title IX remedy carries tangible consequences for liti-

gants. Title VII comes with several procedural roadblocks that

make claims harder to file than under Title IX. See Fort Bend Cnty.

v. Davis, 587 U.S. 541, 544–45 (2019) (summarizing Title VII’s pro-

cedures). Title IX also allows for the recovery of damages that Title

VII does not provide for. And we may find substantive differences

between Title IX and Title VII’s coverage in the future because

they are two independent statutes.

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36 ROSENBAUM, J., Dissenting 23-11037

I begin with the procedural differences. For starters, Title

VII requires that employees file a claim with the EEOC within 180

days. See 42 U.S.C. § 2000e-5(e)(1). Title IX claims don’t expire that

quickly. Because Title IX contains no express statute of limitations,

we have held, consistent with our sister circuits, that the statute of

limitations for state personal-injury actions applies to Title IX cases.

M.H.D. v. Westminster Schs., 172 F.3d 797, 803 (11th Cir. 1999) (cit-

ing Lillard v. Shelby Cnty. Bd. of Educ., 76 F.3d 716, 729 (6th Cir.

1996)).

In Georgia and Alabama, the relevant limitations period is

two years. GA. CODE ANN. § 9-3-33; ALA. CODE § 6-2-38(l). In Flor-

ida, it may be as long as four years. FLA. STAT. § 95.11(3)(e) & (o)

(providing the statute of limitations for actions “founded on a stat-

utory liability” and “[a]ny action not specifically provided for” by

Florida’s statutory law.) By forcing litigants to proceed under Title

VII, we severely shrink the time they have in which to file their

claims.

Title IX’s longer filing deadlines are especially important be-

cause the class of plaintiffs for this cause of action is teachers. In-

undated with assignments to grade, lesson plans, and student emer-

gencies—tasks that teachers can’t complete during only school

hours—these educators don’t have spare time to quickly file EEOC

complaints. Plus, we want schoolteachers’ focus to be on their stu-

dents. And teachers themselves may want to wait until term

breaks to avoid the disruption to their classrooms that might come

from a high-profile complaint. Given the stigma that might result

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23-11037 ROSENBAUM, J., Dissenting 37

from filing a complaint, teachers may also need time to develop the

courage to come forward. Indeed, the scrutiny of close-knit cam-

pus communities can amplify teachers’ fears in a way that other

work environments generally don’t.

The burden on teachers’ time is also greater because Title

VII forces them to jump through hoops that Title IX doesn’t re-

quire. For example, Title VII mandates plaintiffs first file a com-

plaint with the EEOC and obtain a right-to-sue letter before filing

in federal court. See 42 U.S.C. § 2000e-5(f). Before providing the

letter, the EEOC conducts an independent investigation of the

charges and attempts to reach a conciliation agreement. Id. If state

or local law is on point, the law directs litigants to file with a state

or local agency first. Id. § 2000e-5(c). Within 90 days of receiving

a right-to-sue letter, Title VII plaintiffs must bring their claims. Id.

§ 2000e-5(f)(1). Litigants under Title IX’s cause of action do not

have to meet these requirements. And hard-working teachers

should not be forced to, either.

On top of the procedural obstacles of Title VII, some teach-

ers can recover more in damages under Title IX. So we refuse them

relief that Congress intended by restricting them to Title VII. Title

IX allows for the recovery of uncapped compensatory damages. See

Franklin, 503 U.S. at 76. By contrast, Title VII has tight limits on

any compensatory damages available. The statute caps damages

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38 ROSENBAUM, J., Dissenting 23-11037

by an employer’s size for future pecuniary losses, inconvenience,

and other nonpecuniary losses. 42 U.S.C. § 1981a(b)(3). 4

This could be especially limiting for academics who, because

of prohibited discrimination, for instance, have been denied grants

critical for research that create lucrative or otherwise important op-

portunities. Several federal courts have recently recognized that

plaintiffs proceeding under Title IX and similar Spending Clause

statutes may recover damages on a “loss of opportunity” theory.

See Doe v. Fairfax Cnty. Sch. Bd., No. 1:18-cv-614, 2023 WL 424265,

at *5 (E.D. Va. Jan. 25, 2023) (finding that under Title IX, “compen-

satory damages that are not based upon specific monetary harm

but stem directly from lost opportunities suffered as a result of dis-

crimination can nonetheless serve as a basis for damages”); A.T. v.

Oley Valley Sch. Dist., No. 17-4983, 2023 WL 1453143, at *4 (E.D. Pa.

Feb. 1, 2023) (Title IX “[p]laintiffs’ claims for lost income, lost op-

portunity, fringe benefits, attorney fees, costs and any other non-

emotional distress compensatory damages shall remain”); see also

Chaitram v. Penn Medicine-Princeton Med. Ctr., No. 21-17583, 2022

WL 16821692, at *2 (D.N.J. Nov. 8, 2022) (allowing recovery of

damages under Section 1557 of the Affordable Care Act and Section

504 of the Rehabilitation Act for loss of opportunity); Montgomery

4 It’s true that Title VII allows punitive and emotional damages likely not re-

coverable under Title IX. See Barnes, 536 U.S. at 189; Cummings, 596 U.S. at

230. But whether the overall recoverable damages are larger under Title VII

or Title IX will vary case by case, so teachers should have access to both their

statutory remedies, given that Congress created mechanisms for them to do

so.

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23-11037 ROSENBAUM, J., Dissenting 39

v. D.C., No. CV 18-1928, 2022 WL 1618741, at *25 (D.D.C. May 23,

2022) (allowing recovery of damages for loss of opportunity under

Title II of the Americans with Disabilities Act and Section 504 of

the Rehabilitation Act). Advancing that theory, these professors

could likely recover more under Title IX than under Title VII.

And there’s also a meaningful difference in the amount of

lost wages that a plaintiff can recover under these statutes. Under

Title VII, “[b]ack pay liability shall not accrue from a date more

than two years prior to the filing of a charge with the [Equal Em-

ployment Opportunity Commission].” 42 U.S.C. § 2000e-5(g)(1).

No such cap exists for Title IX. So a long-tenured professor could

not recover the same withheld wages that he might be able to get

under Title IX.

Finally, it’s important to remember that “Title VII . . . is a

vastly different statute from Title IX . . . .” Jackson, 544 U.S. at 175.

So although we typically evaluate Title IX in line with Title VII, we

may in the future find substantive daylight between the two inde-

pendent statutes. Yet the panel opinion does not limit its holding

to only claims that can be litigated under Title VII. See Joseph, 121

F.4th at 869. And that leaves open the potential for plaintiffs to be

completely deprived of a remedy.

Our usurpation of Congress’s policy-making function and

these tangible consequences for educational employees make this

case one of “exceptional importance.” And we should have cor-

rected the panel’s mistake as an en banc court.

V. Conclusion

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40 ROSENBAUM, J., Dissenting 23-11037

With Title IX, Congress sought to eradicate employment

discrimination in our schools. The Supreme Court has recognized

this fact. But the panel’s decision knee caps a critical tool to address

this corrosive force, contradicting both the Supreme Court’s prec-

edents and the intent of Congress. As a result, I respectfully dissent

from today’s decision to deny rehearing en banc.