Mark Charlton-Perkins v. Univ. of Cincinnati

RECOMMENDED FOR PUBLICATION

Pursuant to Sixth Circuit I.O.P. 32.1(b)

File Name: 26a0217p.06

UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT

┐

MARK CHARLTON-PERKINS,

│

Plaintiff-Appellant, │

> No. 25-3693

│

v. │

│

UNIVERSITY OF CINCINNATI; KENNETH PETREN, in his │

official and individual capacities; GEORGE UETZ, in │

his official and individual capacities, │

Defendants-Appellees. │

┘

Appeal from the United States District Court for the Southern District of Ohio at Cincinnati.

No. 1:20-cv-00179—Timothy S. Black, District Judge.

Argued: May 27, 2026

Decided and Filed: August 5, 2026

Before: SILER, BUSH, and MURPHY, Circuit Judges.

_________________

COUNSEL

ARGUED: Marc D. Mezibov, MARC D. MEZIBOV, LLC, Cincinnati, Ohio, for Appellant.

Evan T. Priestle, TAFT STETTINIUS & HOLLISTER LLP, Cincinnati, Ohio, for Appellees.

ON BRIEF: Marc D. Mezibov, MARC D. MEZIBOV, LLC, Cincinnati, Ohio, for Appellant.

Evan T. Priestle, TAFT STETTINIUS & HOLLISTER LLP, Cincinnati, Ohio, for Appellees.

BUSH, J., delivered the opinion of the court in which SILER and MURPHY, JJ.,

concurred. MURPHY, J. (pp. 26–32), delivered a separate concurring opinion.

No. 25-3693 Charlton-Perkins v. Univ. of Cincinnati, et al. Page 2

_________________

OPINION

_________________

JOHN K. BUSH, Circuit Judge. While living in the United Kingdom, Dr. Mark

Charlton-Perkins applied for an assistant professor position at the University of Cincinnati.

A faculty panel recommended him for the position, but after consternation about his gender and

an alleged conflict of interest, the University cancelled the job search. Charlton-Perkins brought

Title IX and equal-protection claims against the University and two of its administrators. The

district court granted summary judgment to Defendants on all claims. Because Title IX protects

only persons in the United States, and because sovereign and qualified immunities bar his equal-

protection claims, we AFFIRM the judgment of the district court.

I.

Dr. Mark Charlton-Perkins is a United States citizen who was born in South Africa.

Later he resided in the United States, where he received his PhD in molecular and developmental

biology from the University of Cincinnati. In 2015, he moved to the United Kingdom to work as

a research assistant at the University of Cambridge. At all times relevant to this case, he resided

in the United Kingdom despite being a United States citizen.

In September 2017, the University of Cincinnati’s biology department began a hiring

search for a new assistant professorship in cell biology. Dr. George Uetz, the Head of the

Biology Department, appointed four of the department’s professors to a search committee. He

chose one of those professors, Dr. Elke Buschbeck, to chair the committee. The committee

interviewed candidates, ranked them, and provided a hiring recommendation to Uetz. Uetz was

responsible for sharing the committee’s findings with—and presenting its recommendation to—

the Dean of the College of Arts and Sciences, Dr. Ken Petren. The Dean had sole authority to

approve hires or cancel a search.

Charlton-Perkins applied for the position. Even before the application, Buschbeck was

familiar with Charlton-Perkins’s work, having served on his doctoral thesis advisory committee

and coauthored multiple scientific publications with him. Sensing that this preexisting

No. 25-3693 Charlton-Perkins v. Univ. of Cincinnati, et al. Page 3

relationship could create an appearance of favoritism, Buschbeck told a University administrator

and the rest of the search committee about her ties to Charlton-Perkins after he interviewed over

Skype. The administrator advised Buschbeck that the relationship did not create a conflict of

interest.

Charlton-Perkins then survived successive rounds of cuts before interviewing in-person

in Cincinnati in February 2018. As part of the interview, he gave an hour-long seminar and met

with the search committee and Uetz. After this, the committee narrowed its search to four

candidates—two women and two men—including Charlton-Perkins. Eventually, by a three-to-

one vote, the search committee settled on Charlton-Perkins as its top choice for the position.

This endorsement was shared with Uetz. At the same time, Uetz also received feedback

about Charlton-Perkins’s candidacy from faculty members not appointed to the search

committee, most of which was negative. Some comments concerned Buschbeck’s potential bias

toward Charlton-Perkins. Others concerned his race and gender. One faculty member expressed

concern to Uetz that Charlton-Perkins, a white male, “would not provide [a] much-needed

increase in diversity.” R. 31-6, Ex. to Buschbeck Dep., PageID 1028. Similarly, another

detractor told Uetz that Charlton-Perkins “brings the opposite of diversity and . . . demographics”

as a candidate. R. 29, Uetz Dep., PageID 473. Finally, an email, described by Uetz

as “encapsulat[ing]” the views of several faculty members, discounted Charlton-Perkins’s

candidacy for his inability to bring diversity to the department. R. 29-15, Ex. to Uetz

Dep., PageID 736. The email’s author also complained that Buschbeck’s advocacy for

Charlton-Perkins frustrated the overall aim “of hiring women.” Id.

Uetz conferred with Petren, expressing concerns about “[t]he political climate” and

“posturing regarding affirmative action” and asking if it were permissible to hire a man over two

well-qualified female candidates. R. 29, Uetz Dep., PageID 430. Petren responded that hiring a

man would be permissible. Uetz also raised the conflict-of-interest issue, and Petren directed

him to investigate further. During Uetz’s investigation, six faculty members expressed concerns

about Buschbeck’s relationship with Charlton-Perkins and her advocacy for his hiring.

No. 25-3693 Charlton-Perkins v. Univ. of Cincinnati, et al. Page 4

Despite receiving a clear recommendation from the search committee, Petren and Uetz

put the hiring decision on hold. In early March 2018, Uetz informed the search committee that

he and Petren wanted to shift away from Charlton-Perkins and “focus on the women candidates

first.” R. 50-1, Statement of Undisputed Material Facts, PageID 1646. That did not sit well with

Buschbeck. She protested that this emphasis on hiring women was “plain discrimination”

against Charlton-Perkins and might even constitute illegal gender discrimination. R. 31,

Buschbeck Dep., PageID 895. Uetz responded that he did not think that the hiring approach was

illegal and emphasized that Buschbeck, as head of the search committee, “would need to make

the case why a male candidate should be hired over a qualified female candidate.” R. 29-19, Ex.

to Uetz Dep., PageID 750. Soon after, Petren met with Buschbeck and told her that he decided

not to follow the search committee’s vote in part because “[b]iology is short on women,” so “he

thought that it would be better to go with a female candidate.” R. 31-15, Ex. to Buschbeck Dep.,

PageID 1064. Petren also cited the perceived conflict of interest and the divided support of the

faculty beyond the search committee as factors influencing his decision.

But later Petren had second thoughts. Rather than proceed with hiring for the new

position, Petren cancelled the search altogether and informed the faculty a few days later. Uetz

noted that factors supporting the no-go decision included “the gender of the candidates” and the

conflict-of-interest concerns raised by faculty members. R. 29-13, Uetz Notes, PageID 728; see

also R. 29-14, Uetz Timeline, PageID 731 (“gender balance of the department” was a factor

involved in the decision to “focus first on the two women candidates”).

A week later, Petren and Uetz met with the faculty regarding the hiring-search

cancellation. Buschbeck’s perceived conflict of interest was discussed, but Uetz also

emphasized that the biology department was “bereft of female candidates” and that this concern

played into the department’s decision. R. 29-7, Meeting Tr., PageID 662. Petren then defended

the decision to cancel the search rather than cure the perceived conflict of interest. He argued

that, of the three candidates considered good enough to be hired (Charlton-Perkins and the two

female candidates), “whoever [was] not offered . . . could come back and . . . file a lawsuit. And

this happens all the time. You know, we settled one for about [$]250,000 . . . . Couple months

ago it was [$]120,000.” Id. at PageID 664. To Petren, the threat of potential litigation was

No. 25-3693 Charlton-Perkins v. Univ. of Cincinnati, et al. Page 5

compounded by the fact that “so many accusations” had “flown around” and that, during the

process, “emails just started flying with a lot of accusations that can’t be undone.” Id.

Soon after the contentious faculty meeting, Petren emailed Charlton-Perkins to inform

him of the decision to cancel the hiring search. The position has never been reposted.

Charlton-Perkins sued, asserting a claim against the University under Title IX of the Civil

Rights Act and claims against Uetz and Petren (in their individual and official capacities) under

the Equal Protection Clause via 42 U.S.C. § 1983. He sought injunctive relief requiring his

instatement as Assistant Professor of Cell Biology as well as compensatory and punitive

damages.

Defendants moved for summary judgment.1 The district court granted summary

judgment to the University on the Title IX claim and dismissed the equal-protection claims with

prejudice. The district court held that the Eleventh Amendment barred the official-capacity

equal-protection claims and that qualified immunity barred the personal-capacity equal-

protection claims. It further held that all of Charlton-Perkins’s claims failed because he could

not show that Defendants’ proffered reason for cancelling the job search—the alleged conflict of

interest—was pretextual.

Charlton-Perkins timely appealed.

II.

We review de novo a grant of summary judgment. Bilyeu v. UT-Battelle, LLC, 154 F.4th

396, 402 (6th Cir. 2025). This includes grants of sovereign and qualified immunities. Mingus v.

Butler, 591 F.3d 474, 481 (6th Cir. 2010); Clemons v. Couch, 3 F.4th 897, 902 (6th Cir. 2021).

A defendant is entitled to summary judgment when, viewing the facts in the light most favorable

to the plaintiff and drawing all reasonable inferences in the plaintiff’s favor, no genuine dispute

of material fact exists, and the defendant is entitled to judgment as a matter of law. Bilyeu, 154

1The district court previously dismissed the suit at the pleadings stage, holding that Charlton-Perkins’s

claims were not ripe and that he had failed to state a claim. On appeal, we reversed and remanded, holding that the

district court had improperly grafted the prima-facie-case requirement onto the ripeness requirement and that

Charlton-Perkins’s claims were ripe for review. Charlton-Perkins v. Univ. of Cincinnati, 35 F.4th 1053, 1058–60

(6th Cir. 2022). We also held that Charlton-Perkins had properly pleaded his claims. Id. at 1060–64.

No. 25-3693 Charlton-Perkins v. Univ. of Cincinnati, et al. Page 6

F.4th at 402. A genuine dispute of material fact exists when the record presents enough evidence

for a reasonable jury to find for the plaintiff. Id. We can affirm “on any grounds supported by

the record, even if different from those relied on by the district court.” Brown v. Tidwell, 169

F.3d 330, 332 (6th Cir. 1999) (per curiam).

III.

We begin with the Title IX claim. Charlton-Perkins appeals the district court’s finding

that this claim fails because he has failed to show sufficient evidence of pretext. We affirm

the district court, but on different grounds: when the alleged discrimination took place and

Charlton-Perkins learned of it, he was not a “person in the United States” within the meaning of

Title IX.2

Title IX states that “[n]o person in the United States shall, on the basis of sex, be

excluded from participation in, be denied the benefits of, or be subjected to discrimination under

any education program or activity receiving Federal financial assistance . . . .” 20 U.S.C.

§ 1681(a). Whether a United States citizen living abroad at the time of the alleged

discrimination can claim the protection of Title IX is a question of first impression for our

circuit, so we must engage in first-principles statutory interpretation. Our “proper starting point

lies in a careful examination of the ordinary meaning and structure of the law itself.” Food

Mktg. Inst. v. Argus Leader Media, 588 U.S. 427, 436 (2019). That requires “analyzing the

statutory language, assuming that the ordinary meaning of that language accurately expresses the

legislative purpose.” Hardt v. Reliance Standard Life Ins. Co., 560 U.S. 242, 251 (2010)

(quoting Gross v. FBL Fin. Servs., Inc., 557 U.S. 167, 175 (2009)) (cleaned up). If “the

language of the statute is clear,” we “appl[y] the statute as written.” In re Corrin, 849 F.3d 653,

657 (6th Cir. 2017).

2The Supreme Court recently granted certiorari to resolve a circuit split over whether Title IX provides a

cause of action for employment discrimination. See Crowther v. Bd. of Regents of the Univ. Sys. of Ga., No. 25-183,

2026 WL 1377024 (U.S. May 18, 2026). Charlton-Perkins’s claim fails on the merits, and the lack of a cause of

action is not jurisdictional, Verizon Md., Inc. v. Pub. Serv. Comm’n of Md., 535 U.S. 635, 642–43 (2002), so we

need not address the issue.

No. 25-3693 Charlton-Perkins v. Univ. of Cincinnati, et al. Page 7

As relevant here, at the time of Title IX’s enactment, “in” was most commonly “used as a

function word to indicate location or position in space or in some materially bounded object.”

In, Webster’s Third New International Dictionary 1139 (def. 1.a(1)) (1966). This plainly

supports the interpretation that “in the United States” is a geographical requirement. True, “in”

was also “used as a function word . . . to indicate the fact of belonging to a group or association.”

Id. (def. 1.b(1)). But this use of the word does not match how an ordinary person would read the

statute. For example, Babe Ruth is in the Baseball Hall of Fame despite not being buried in

Cooperstown. Is a citizen like Charlton-Perkins in the United States in the same way a member

of the Baseball Hall of Fame is in the Hall of Fame? Answering “yes” would stretch ordinary

usage too far. Nobody would say “I am in the United States” to refer to his citizenship status,

and responding that way to a question about citizenship status would likely lead the asker to

repeat his question. So the ordinary meaning of “person in the United States” is a person

physically located within United States territory.

The Supreme Court’s recent decision in Trump v. Barbara confirms this. 609 U.S. ___

(2026) (slip op.). In Barbara, the Court interpreted the meaning of the Citizenship Clause of the

Fourteenth Amendment, which provides that “[a]ll persons born or naturalized in the United

States, and subject to the jurisdiction thereof, are citizens of the United States . . . .” U.S. Const.

amend. XIV, § 1. The Court interpreted the beginning of the Clause, “born . . . in the United

States,” to refer to “territory.” Barbara, slip op. at 10 (quoting U.S. Const. amend. XIV, § 1)

(emphasis added). And it relied on “the Clause’s territorial focus on those born ‘in’ the United

States” to determine that the next requirement of the Citizenship Clause, being “subject to the

jurisdiction thereof,” referred to “liv[ing] under” our government’s “dominion.” Id. at 11

(emphasis added) (cleaned up).

The Supreme Court adopted a similar textual interpretation in another recent decision,

Mullin v. Al Otro Lado, 609 U.S. ___ (2026) (slip op.). There, the Court considered “whether an

alien who seeks to enter the United States from Mexico ‘arrives in the United States’ when he or

she is still in Mexico.” Id. at 1 (footnotes omitted). The Court found that to be a

“straightforward question” because “[i]n ordinary speech, no one would say that a person

‘arrives in’ a place—for example, . . . a country—before the person enters that place.” Id.

No. 25-3693 Charlton-Perkins v. Univ. of Cincinnati, et al. Page 8

When used in conjunction with a “geographic location” like the United States, “everyday

speech” uses the word “in” as a “preposition . . . mean[ing] ‘[w]ithin the limits, bounds, or area

of.’” Id. at 8 (quoting In, American Heritage Dictionary 910 (def. 1.a) (3d ed. 1992)). So being

“in a destination”—i.e., the United States—means being “within its area . . . .” Id. The Court

noted that “[e]veryday examples confirm that understanding”: a running back is not in the end

zone when he is on the one-yard line, and an invading army is not in a city when it is encamped

outside the city’s walls. Id.

To summarize, in the Supreme Court’s most recent examinations of similar language to

that found in Title IX, it found that being “in the United States” referred to physical presence in

United States territory. Id.

The usage of the phrase “person in the United States” in other statutes is also consistent

with this interpretation. The phrase is commonly used in import and export statutes. See, e.g.,

21 U.S.C. § 144 (“It shall be unlawful for any person in the United States to receive milk or

cream imported into the United States unless the importation is in accordance with the provisions

of this subchapter.”); 19 U.S.C. § 1321(a)(2) (granting the Treasury Secretary the power to

“admit articles free of duty and of any tax imposed on or by reason of importation” so long as the

value of certain articles is less than an amount specified by the Secretary, which cannot be less

than “$100 in the case of articles sent as bona fide gifts from persons in foreign countries to

persons in the United States”). In those statutes, it is clear that “in the United States” means

“within the physical territory of the United States.” One such provision defines “export,” for

purposes of wartime export controls, as “the release or transfer of technology . . . to a foreign

person in the United States.” 50 U.S.C. § 4801(3)(B). This is particularly instructive because

the modifier foreign implies that citizenship is distinct from whether someone is a person in the

United States. If “person in the United States” referred to citizenship, a foreigner could never be

a person in the United States, and “foreign person in the United States” would be oxymoronic.

The phrase also appears in statutes concerning national security. See, e.g., 50 U.S.C.

§ 3506(a)(4)(D)(iii) (granting authority to certain CIA personnel to carry firearms “within the

United States” to protect “defectors and their immediate families, and other persons in the United

States under Agency auspices”). Take the statute aimed at frustrating Iranian missile exports,

No. 25-3693 Charlton-Perkins v. Univ. of Cincinnati, et al. Page 9

which defines “United States person” to mean: “(A) a United States citizen; (B) a permanent

resident alien of the United States; (C) an entity organized under the laws of the United States or

of any jurisdiction within the United States, including a foreign branch of such an entity; or (D) a

person in the United States.” 22 U.S.C. § 9424(4). Although this statute was passed long after

Title IX or its amendments, it shows that Congress can and will distinguish “United States

citizen” from “person in the United States” when both citizenship and geography are relevant.

The final statute we will look at regards certain oaths and acknowledgments required in

copyright disputes. Those oaths can be made “(A) before any person in the United States

authorized by law to administer oaths; or (B) when made in a foreign country, before any

diplomatic or consular officer . . . , or before any official authorized to administer oaths in the

foreign country concerned . . . .” 17 U.S.C. § 1312(a)(1). Here, the contrast between (A), which

concerns oaths taken “before any person in the United States,” and (B), which concerns oaths

“made in a foreign country,” makes it clear that “person in the United States” is being used to

refer to someone within United States territory.

Granted, these statutes are not related to Title IX such that the in pari materia canon

applies, see Erlenbaugh v. United States, 409 U.S. 239, 243–44 (1972), but they provide strong

evidence that the ordinary meaning of “person in the United States” is a “person physically

located within the territory of the United States.” They also demonstrate that Congress

distinguishes between citizenship and geographical location when constructing statutes and that

“person in the United States” refers to the latter. Absent reason to think that “person in the

United States” has some other meaning in a civil rights statute like Title IX, plain-language

analysis supports Defendants’ position.

In fact, the nature of Title IX counsels in favor of the plain-language interpretation. Title

IX was passed pursuant to the Spending Clause. Davis ex rel. LaShonda D. v. Monroe Cnty. Bd.

of Educ., 526 U.S. 629, 640 (1999). The Spending Clause does not permit Congress to directly

regulate conduct; instead, it enables Congress to distribute funds. Landor v. La. Dep’t of Corrs.

& Pub. Safety, 609 U.S. ___ (2026) (slip op. at 6). Congress can, however, use the Spending

Clause to pursue its priorities by “attach[ing] conditions to the funds it distributes.” Id.

Spending Clause legislation like Title IX therefore creates a sort of contract where States receive

No. 25-3693 Charlton-Perkins v. Univ. of Cincinnati, et al. Page 10

federal funds in return for complying with federally imposed conditions. Id. at 6–7. Because

knowing acceptance of a putative contract requires awareness of its terms, we “insist[] that

Congress speak with a clear voice” when passing Spending Clause legislation so that a State is

aware of the conditions it accedes to when it accepts federal funds. Pennhurst State Sch. &

Hosp. v. Halderman, 451 U.S. 1, 17 (1981); Landor, slip op. at 7 (“Congress must clearly and

unambiguously alert a grant recipient to any condition on federal funds.”). Federalism demands

a “clear-statement rule when construing spending legislation as a matter of statutory

interpretation” because “Congress can cajole the states to enact policies indirectly (through a

spending inducement) that it could never directly order them to perform with its other

enumerated powers . . . .” Kentucky v. Yellen, 54 F.4th 325, 347 (6th Cir. 2022) (emphasis

omitted). Under this canon, our question here is simple: “Would a prospective funding recipient,

at the time it engaged in the process of deciding whether to accept federal dollars, have been

aware that it would face” liability for how it treated a person who resided outside of the United

States? Cummings v. Premier Rehab Keller, P.L.L.C., 596 U.S. 212, 220 (2022) (cleaned up).

The answer is no. The clear-statement inquiry always begins with the text. Arlington

Cent. Sch. Dist. Bd. of Educ. v. Murphy, 548 U.S. 291, 296 (2006). “Nothing in Title IX clearly

and unambiguously alerts funding recipients” that they would face liability for discriminating

against persons outside of the United States; rather, the plain language of the statute suggests the

opposite. West Virginia v. B.P.J. ex rel. Jackson, 146 S. Ct. 2356, 2383 (2026) (Gorsuch, J.,

concurring). Generally, a statute cannot provide a clear statement that goes against its plain

language. See Arlington Cent. Sch. Dist. Bd. of Educ., 548 U.S. at 296. In fact, “clear

statement” and “plain language” are something close to synonyms. Cf. Learning Res., Inc. v.

Trump, 146 S. Ct. 628, 653 (2026) (Gorsuch, J., concurring) (describing the requirement that

statutory power “be conferred in plain language” as a clear statement rule (quoting Siler v.

Louisville & Nashville R.R. Co., 213 U.S. 175, 194 (1909))). It is questionable whether a State

receiving federal funds would be aware that it might be on the hook for any employment-

discrimination suits under Title IX, let alone those brought by foreign residents. See Joseph v.

Bd. of Regents of the Univ. Sys. of Ga., 121 F.4th 855, 864 (11th Cir. 2024), cert. granted sub

nom., Crowther v. Bd. of Regents of the Univ. Sys. of Ga., No. 25-183, 2026 WL 1377024 (U.S.

May 18, 2026). But it is certain that a prospective funding recipient reading a statute that

No. 25-3693 Charlton-Perkins v. Univ. of Cincinnati, et al. Page 11

prohibits discrimination against persons in the United States would not expect to face liability for

discriminating against persons outside of the United States. The consistent usage of the phrase

by other statutes, explained above, also supports this application of the clear-statement canon.

See Arlington Cent. Sch. Dist. Bd. of Educ., 548 U.S. at 300–02.

As the district court noted, however, the Supreme Court has suggested that in rare cases

we can look past the plain, unambiguous language of the statute when the language leads to an

absurd result. See Donovan v. FirstCredit, Inc., 983 F.3d 246, 253 (6th Cir. 2020). An absurd

result is one Congress could not possibly have intended; the absurdity must be “so clear as to be

obvious to most anyone.” Pub. Citizen v. Dep’t of Justice, 491 U.S. 440, 470–71 (1989)

(Kennedy, J., concurring in the judgment). “[A]voidance of unhappy consequences” is

insufficient justification for invoking the absurdity canon. Nixon v. Mo. Mun. League, 541 U.S.

125, 141 (2004) (Scalia, J., concurring in the judgment).

The district court, for its part, considered it absurd that Title IX’s protections could be

“turned on and off based on nothing more than where a plaintiff happens to be located at any

given moment . . . .” R. 55, Dist. Ct. Order, PageID 1734. This is encapsulated in a

hypothetical: suppose a plaintiff lived in the United States, but traveled abroad for a single day,

and during that single day the discriminatory decision was made. Under Defendants’

interpretation, that plaintiff may be unprotected by Title IX. The district court thought that such

a loophole would undermine the purpose of the statute.

We disagree because the truly absurd result likely would never obtain. The district

court’s day-traveler hypothetical raises a concerning possibility: that educational institutions

could deliberately send their employees abroad and subject them to a discriminatory adverse

employment action as soon as they disembark, thus avoiding Title IX liability. But the district

court’s relevant inflection point—the time “when a discriminatory decision was made”—

eliminates this concern. Id. If sending an employee abroad was part of a discriminatory firing

No. 25-3693 Charlton-Perkins v. Univ. of Cincinnati, et al. Page 12

scheme, the decision to fire him likely would have been made at the time the conspiracy was

hatched, at which point he was presumably stateside.3

What is more, the district court’s interpretation—that the phrase refers to “the location of

the conduct rather than the precise location of the plaintiff”—would produce even more absurd

results. Id. Imagine a Chinese national living in China. She has never left China but would like

to work at an American university. So she applies online to an open position at Miskatonic

University in Arkham, Massachusetts.4 Miskatonic has lost many male professors to

unexplained disappearances, insane asylums, and sundry supernatural horrors. It would thus

prefer to hire a man to fix the resulting gender imbalance in its Eldritch Studies Department.

Miskatonic’s hiring committee dismisses the Chinese national’s application out of hand for no

other reason than that she is female. She does not, at any time, visit America. She does not get a

virtual interview. She does not even get an email from Miskatonic informing her that her

application has been rejected.

Clearly, the Chinese national has been discriminated against on the basis of her gender.

Under the district court’s interpretation, she would have a slam-dunk Title IX discrimination suit.

That cannot be right, because it would mean that anyone in the entire world could bring a Title

IX claim so long as the position he or she was applying for was in the United States. That would

go against the plain language of Title IX, and no recipient of federal funds would understand

themselves to be open to liability from anyone, anywhere on the planet.

In support of its interpretation, the district court points to Supreme Court dicta suggesting

that Title IX was intended to protect citizens regardless of location. In Cannon v. University of

Chicago, the Supreme Court reasoned that Congress enacted Title IX “to provide individual

citizens effective protection against [discriminatory] practices.” 441 U.S. 677, 704 (1979).

3This analysis raises another difficult question: at what point do we determine physical location for

purposes of Title IX protection? Is it when the plaintiff finds out that he has been fired? Is it when the

administrator privately decides to fire him? We need not resolve this issue because Charlton-Perkins was abroad

when Petren made the decision to cancel the job search, when Petren announced the cancellation, and when

Charlton-Perkins learned that the job search was cancelled. In other words, no matter where one wishes to draw the

line, Charlton-Perkins was not a “person in the United States.”

4See H. P. Lovecraft, The Shadow over Innsmouth, The H. P. Lovecraft Archive,

https://hplovecraft.com/writings/texts/fiction/soi.aspx (Aug. 20, 2009).

No. 25-3693 Charlton-Perkins v. Univ. of Cincinnati, et al. Page 13

Several problems arise from relying on this language. One, dicta is not binding. Wright v.

Spaulding, 939 F.3d 695, 700–01 (6th Cir. 2019); see Olivier v. City of Brandon, 607 U.S. 552,

565 (2026). Two, although Cannon’s private-right-of-action holding was later ratified by statute,

its underlying reasoning has been disclaimed by the Court. Medina v. Planned Parenthood S.

Atl., 606 U.S. 357, 369 n.1 (2025). Three, the language itself raises the question of whether the

Court was referring to all citizens or only those residing within America’s borders. In sum,

Cannon’s dicta is too thin a reed on which to rest an argument.

At oral argument, Charlton-Perkins suggested that he could be a “person in the United

States” under any number of theories: his citizenship, his physical presence in the United States

during the interview process, and the fact that the job would be in the United States. The

location of the job does not help him for the reasons stated above. His presence in the United

States during the interview process cannot be enough either. The statute states that “no person in

the United States shall, on the basis of sex, be . . . subjected to discrimination under any

education program or activity receiving Federal financial assistance . . . .” 20 U.S.C. § 1681(a).

That language strongly suggests that the presence in the United States must be linked to being

“subjected to discrimination.” And he was not subjected to any gender discrimination at the time

of the in-person interview.

Further, Charlton-Perkins’s reference to his citizenship suggests that he would like us to

define the relevant phrase to refer to both physical location and citizenship. We decline. To

define “person in the United States” as “anyone physically located in the United States, and

citizens of the United States located abroad” would twist statutory language far beyond its

ordinary meaning. That Congress would use “in” to simultaneously refer to physical presence in

the United States, regardless of citizenship, and United States citizenship, despite physical

presence outside of the United States, beggars belief. This is especially true considering other

statutes in which Congress addresses citizenship and physical location separately when both

considerations are relevant. See, e.g., 22 U.S.C. § 9424(4); 17 U.S.C. § 1312(a)(1).

No. 25-3693 Charlton-Perkins v. Univ. of Cincinnati, et al. Page 14

For these reasons, therefore, we conclude that the district court properly granted summary

judgment to the University on the Title IX claim.5

IV.

Charlton-Perkins also challenges the district court’s dismissal of his official-capacity

equal-protection claims. As discussed below, we hold that sovereign immunity bars these claims

because (1) instatement is an impermissible burden on the state treasury, and (2) a suit in equity

for an instatement injunction is too far removed from the suits in equity that could have been

brought against a State at the Founding.

A. Charlton-Perkins’s Requested Injunction Impermissibly Burdens the State

Treasury

Unless waived or abrogated, Eleventh Amendment sovereign immunity deprives the

court of subject-matter jurisdiction when an individual sues a State. Russell v. Lundergan-

Grimes, 784 F.3d 1037, 1046 (6th Cir. 2015); Ladd v. Marchbanks, 971 F.3d 574, 577 n.2 (6th

Cir. 2020). “However, under the Ex parte Young exception, ‘a federal court may, without

violating the Eleventh Amendment, issue a prospective injunction against a state officer to end a

continuing violation of federal law.’” Doe v. DeWine, 910 F.3d 842, 848 (6th Cir. 2018)

(quoting Price v. Medicaid Dir., 838 F.3d 739, 746–47 (6th Cir. 2016)).

5For similar reasons, Charlton-Perkins’s presence in England at the time of the alleged discriminatory

conduct may also impact his equal-protection claims. The Equal Protection Clause provides that “[n]o State

shall . . . deny to any person within its jurisdiction the equal protection of the laws.” U.S. Const. am. XIV, § 1. The

Supreme Court has clarified that this “guarantee” extends to all persons “within a State’s boundaries, and to all upon

whom the State would impose the obligations of its laws.” Plyler v. Doe, 457 U.S. 202, 214 (1982). As explained

above, Charlton-Perkins was not within Ohio’s boundaries when the alleged discriminatory acts occurred. And it is

not obvious that applying to work for the State of Ohio otherwise “subject[ed]” Charlton-Perkins to “obligations

imposed by the State’s civil and criminal laws.” Id. at 215. Further cause for concern is the Supreme Court’s recent

construction of another clause in the same section of the Fourteenth Amendment. The Court found that a phrase in

the Citizenship Clause, “subject to the jurisdiction thereof,” U.S. Const. am. XIV, § 1, “uses jurisdiction in its

ordinary sense—referring to the power of the United States to govern those within its territory.” Trump v. Barbara,

609 U.S. ___ (2026) (slip op. at 11) (emphasis added). Taken together, Plyer and Barbara cast doubt on whether

any person who was outside of a State’s borders when an alleged equal-protection violation by that State occurred

could maintain an equal-protection claim against that State when the State has not affirmatively imposed the

obligations of its laws on that person. But we decline to reach this issue because (1) it was not raised nor briefed by

the parties and (2) it would not control the outcome of the equal-protection claims for the reasons discussed in

Sections IV and V.

No. 25-3693 Charlton-Perkins v. Univ. of Cincinnati, et al. Page 15

Generally, “a suit by private parties seeking to impose a liability which must be paid from

public funds in the state treasury is barred by the Eleventh Amendment.” Edelman v. Jordan,

415 U.S. 651, 663 (1974). However, a suit in equity to end a continuing violation of federal law

is not barred when the requested injunction would have “only an incidental or ancillary effect on

a state’s treasury.” Turker v. Ohio Dep’t of Rehab. and Corr., 157 F.3d 453, 459 (6th Cir. 1998).

This “ancillary-effect exception” is “narrow . . . .” Ernst v. Rising, 427 F.3d 351, 368 (6th Cir.

2005) (en banc) (cleaned up). “While an injunction order may have an ‘ancillary’ effect on the

state treasury, it may not directly require payments from the state treasury.” Id. at 370.

Ultimately, “[t]he dividing line” between permissible and impermissible relief is whether the

burden on the public treasury “is the primary thrust of the suit.” Barton v. Summers, 293 F.3d

944, 949 (6th Cir. 2002).

To that end, we have held that expunging workplace disciplinary records is permissible

relief because a state university, in complying with the injunction, “would incur expenses that

are, at most, minimal and ancillary to [the] main goals of” preventing future employment

consequences due to the negative entries on the plaintiff’s record. Ashford v. Univ. of Mich., 89

F.4th 960, 969–70 (6th Cir. 2024) (cleaned up). But when certain state-court judges sought an

injunction requiring Michigan to equalize their retirement benefits with other, more handsomely

compensated state-court judges, we denied that relief as a direct burden on the public fisc. Ernst,

427 F.3d at 372. We did so because the thrust of the requested injunction was to force the State

to internally reallocate dollars. Id. at 370–71. That meant the remedy would “directly require

payments from the state treasury.” Id. at 370.

We have previously held that a request for reinstatement to a prior employment position

is an appropriate Ex parte Young action because it has only ancillary treasury effect. Diaz v.

Mich. Dep’t of Corr., 703 F.3d 956, 964 (6th Cir. 2013). We have not held the same as it relates

to instatement.

Instatement actions cannot exploit the Ex parte Young exception because they are a form

of relief materially different in kind from reinstatement. Charlton-Perkins is asking us to force

the State of Ohio to create and fund, via the public treasury, a position that does not currently

exist. The effect on the state treasury of an instatement remedy therefore cannot be characterized

No. 25-3693 Charlton-Perkins v. Univ. of Cincinnati, et al. Page 16

as the same as that of reinstatement. The latter has no marginal impact on state funds, given that

reinstatement presupposes a job already created by the State. But instatement requires creation

of a new position with commensurate new public spending to fund it.

We have implicitly recognized that in the typical reinstatement case the position sought

already exists. Cf. Alexander v. Bosch Auto Sys., Inc., 232 F. App’x 491, 497 (6th Cir. 2007)

(ERISA reinstatement remedy unavailable if position no longer exists). So the action compelled

by a reinstatement injunction is that the named defendant officer allow the plaintiff simply to

resume his duties. Since those duties are to be performed in a job already created by the State,

the costs associated with complying with the injunction have only “an ancillary effect on the

state treasury.” Edelman, 415 U.S. at 668.

Such is not the case with instatement. Here, the State would have to establish and fully

fund a new position for Charlton-Perkins. The costs are not deemed “ancillary” because they

have never been incurred by the State before. This is not a situation where Charlton-Perkins

wants the State to take some action with negligible cost, like expunging a disciplinary record, to

avoid future discrimination. See Ashford, 89 F.4th at 969–70. He wants the State to remedy its

past discriminatory decision. And he wants it to do so by “reallocati[ng] . . . ‘dollars’” from

somewhere else in its budget to fund a new assistant professorship. Ernst, 427 F.3d at 370

(citation omitted). His requested injunction is therefore more like the one in Ernst: commanding

“direct[] . . . payments from the state treasury,” id., “is the primary thrust of the suit,” Barton,

293 F.3d at 949. Moreover, we have no reason to believe that the named defendant officers

themselves would have the authority to create the new position without the approval of the State

of Ohio. See Ohio Rev. Code § 3361.03. So the State is the entity that would effectively be

charged with affirmative duties were we to award Charlton-Perkins his injunction.

In this situation, the public expenditure is hardly a sideshow to the injunctive relief. It is

the main event. We therefore find that the instatement remedy infringes on the State’s authority

through its direct impact on the public treasury.

No. 25-3693 Charlton-Perkins v. Univ. of Cincinnati, et al. Page 17

B. Charlton-Perkins’s Requested Injunction is Inconsistent with History and Tradition

History and tradition further counsel against extension of our reinstatement jurisprudence

to instatement actions. Immunity from private suit is an essential feature of state sovereignty.

Franchise Tax Bd. of Cal. v. Hyatt, 587 U.S. 230, 238 (2019). So a broad conception of state

sovereign immunity, developed in the common law and the law of nations, was incorporated

into—or, at least, left untouched by—the Constitution. Id.; William Baude & Stephen E. Sachs,

The Misunderstood Eleventh Amendment, 169 U. Pa. L. Rev. 609, 615–17 (2021). Unless

abrogated, sovereign immunity protects a State from a suit “anomalous and unheard of when the

[C]onstitution was adopted.” Hans v. Louisiana, 134 U.S. 1, 18 (1890). The equitable powers of

federal courts are limited to those “traditionally accorded” by the English High Court of

Chancery at the enactment of the Judiciary Act of 1789. Grupo Mexicano de Desarrollo S.A. v.

All. Bond Fund, Inc., 527 U.S. 308, 319 (1999). Also, Ex parte Young does not permit courts to

“devise novel remedies that have no background in traditional equitable practice.” Trump v.

CASA, 606 U.S. 831, 846 n.9 (2025). We therefore must consider whether the present suit is

sufficiently analogous to one that could be brought against a State at the Founding.

If we limit our historical inquiry to equitable relief available in the English Court of

Chancery circa 1789, Charlton-Perkins is out of luck. Chancery practice at the time of the

Founding was confined to private law and would not grant injunctions against a State to protect

public rights. Owen Gallogly, Equity’s Constitutional Source, 123 Yale L.J. 1213, 1315 (2023).

Perhaps that settles it. “[T]he distinction between common law and equity, as existing in

England” at the Founding “has been maintained” in our Constitution. In re Sawyer, 124 U.S.

200, 209–10 (1888). So, because Charlton-Perkins’s requested instatement injunction is a

public-law suit in equity against a State, it would have been “anomalous and unheard of when

the [C]onstitution was adopted.” Hans, 134 U.S. at 18.

Yet that cannot be the end of our inquiry, because our modern courts regularly grant

injunctions in public-law cases, and typically do so by invoking Ex parte Young. See James

Pfander & Wade Formo, The Past and Future of Equitable Remedies, 71 Ala. L. Rev. 723, 748

(2020) (“[T]he Ex parte Young action serves as the primary mode by which individuals vindicate

their constitutional rights in litigation with the federal government.”). We are thus bound by

No. 25-3693 Charlton-Perkins v. Univ. of Cincinnati, et al. Page 18

precedents that have expanded the class of suits available against a State beyond those a federal

court could have entertained at the Founding. See infra p. 19–20. To determine whether those

precedents benefit Charlton-Perkins in his request for a novel application of Ex parte Young, we

must consider the extent to which our Ex parte Young jurisprudence is analogous to Founding-

era equity practice and whether the present case is similarly analogous. That means we need to

look closer at Ex parte Young itself.

Ex parte Young involved a Minnesota commission restricting railroad rates. 209 U.S.

123, 127 (1908). Certain railroad company stockholders brought suits in equity against, among

others, Young in his official capacity as Minnesota Attorney General. Id. at 129. The district

court issued an injunction forbidding Young from enforcing Minnesota’s rate laws. Id. at 132.

Young chose to violate the injunction and then file writs of habeas corpus and certiorari with the

Supreme Court challenging the subsequent contempt order. Id. at 126, 134. The Court

sided with the shareholders on the merits, finding the rate laws unconstitutional. Id. at 148.

And it held that the underlying suit against Young was not barred by sovereign immunity. Id. at

150–56.

Ex parte Young presents two difficult questions. First, how could a suit be maintained

against Young, an individual, for violating the Fourteenth Amendment, which regulates only

State conduct? See Pennhurst State Sch. & Hosp. v. Halderman, 465 U.S. 89, 114 n.25 (1984).

Second, no federal statute was cited as the source of the right asserted or remedy sought by the

shareholders, so what was the source of remedial authority in Ex parte Young? See Green Valley

Special Util. Dist. v. City of Schertz, 969 F.3d 460, 498–99 (5th Cir. 2020) (Oldham, J.,

concurring); David L. Shapiro, Ex parte Young and the Uses of History, 67 N.Y.U. Ann. Surv.

Am. L. 69, 74–75 (2011).

The simplest way to resolve both questions is to consider the shareholder action in Ex

parte Young, insofar as it was brought against Young, as analogous to a bill in equity for an

antisuit injunction—a well-established form of equitable relief. John Harrison, Ex parte Young,

60 Stan. L. Rev. 989, 997–1001 (2008); see also Va. Office for Prot. & Advoc. v. Stewart, 563

U.S. 247, 262 (2011) (Kennedy, J., concurring) (recognizing that the “negative injunction” in Ex

parte Young “was nothing more than the pre-emptive assertion in equity of a defense that would

No. 25-3693 Charlton-Perkins v. Univ. of Cincinnati, et al. Page 19

otherwise have been available in the State’s enforcement proceedings at law”). With the case

framed this way, the constitutional defenses to enforcement of the Minnesota act could be

litigated without impinging on Minnesota’s sovereign immunity, precisely because they were

defenses, not affirmative claims on the State of Minnesota. Harrison, supra, at 1000. Just as a

State cannot invoke sovereign immunity when it affirmatively avails itself of a federal court, see

Lapides v. Bd. of Regents of Univ. Sys. of Ga., 535 U.S. 613, 623–24 (2002), it cannot invoke

sovereign immunity to avoid the litigation of an affirmative defense in certain pre-enforcement

actions. That makes Ex parte Young a fairly easy sovereign immunity case. See id.; Harrison,

supra, at 1000. As to the cause of action, Ex parte Young’s innovation finds its footing in

traditional equity practice: “instead of asserting that a private defendant’s suit at law should be

enjoined based on fraud or undue influence, the [Ex parte Young] plaintiff asserts that a

government enforcement action should be enjoined based on a different type of unlawfulness,

namely the unconstitutionality of the underlying statute.” Gallogly, supra, at 1315.

Some have criticized this interpretation of Ex parte Young as inconsistent with historical

equity practice because “[e]ighteenth-century English courts would not grant an injunction

against the sovereign” and “criminal prosecutions could not be enjoined.” Andrew Oldham et

al., The Ex parte Young Cause of Action, 120 Nw. U. L. Rev. 1697, 1712 (2026); see also James

E. Pfander & Jacob P. Wentzel, The Common Law Origins of Ex parte Young, 72 Stan. L. Rev.

1269, 1339–40 (2020). Indeed, in the years prior to Ex parte Young, the Supreme Court stated

that “to sustain a bill in equity to restrain or relieve against proceedings for the punishment of

offenses . . . is to invade the domain of the courts of common law . . . .” Sawyer, 124 U.S. at

210; see also 2 Joseph Story, Commentaries on Equity Jurisprudence as Administered in

England and America § 893 (13th ed. 1886) (“Courts of Equity . . . will not interfere to stay

proceedings in any criminal matters . . . .”).

That criticism may well be correct: Ex parte Young expanded federal courts’ equitable

powers. However, our inquiry is analogical, not strictly historical, so some flexibility is justified.

See CASA, 606 U.S. at 841–42. Other types of suits to compel the action or inaction of

government officials were widely available at the Founding. Gallogly, supra, at 1316

(discussing the prerogative writs); Pfander & Wentzel, supra, at 1277–79 (same). Antisuit

No. 25-3693 Charlton-Perkins v. Univ. of Cincinnati, et al. Page 20

injunctions were available at the Founding. See CASA, 606 U.S. at 846 n.9; Harrison, supra, at

997–99. Ex parte Young did something novel by combining these two premises to extend the

availability of an antisuit injunction to anticipated criminal enforcement.6 See Younger v.

Harris, 401 U.S. 37, 45 (1971); Gallogly, supra, at 1315–16; Shapiro, supra, at 84–85.

Importantly, the antisuit analogy is how the Court has described its own case:

“Historically, a court of equity could issue an antisuit injunction to prevent an officer from

engaging in tortious conduct. Ex parte Young justifies its holding by reference to a long line of

cases authorizing suits against state officials in certain circumstances.” CASA, 606 U.S. at 846

n.9. Although the Court stopped short of holding that grounding Ex parte Young in the antisuit

injunction is historically appropriate, it provided a binding account of what the Court in Ex parte

Young understood itself to be doing. See id.; see also Va. Office for Prot. & Advoc., 563 U.S. at

262 (Kennedy, J., concurring) (endorsing the antisuit-injunction interpretation outright).

Application of Ex parte Young in the years following the decision supports this account.

For the decades after it was decided, Ex parte Young “stood for the proposition that sovereign

immunity did not bar lawsuits . . . in which a potential defendant in an enforcement action sought

an injunction against that action,” rather than “the proposition that officer suits could be used to

obtain prospective injunctive relief in general” or “affirmative relief from a State.” Harrison,

supra, at 1008; see, e.g., Hopkins v. Clemson Agric. Coll., 221 U.S. 636, 642 (1911) (“No

suit . . . can be maintained against a public officer, which seeks to compel him to . . . do any

affirmative act which affects the State’s political or property rights.”); Ga. R.R. & Banking Co. v.

Redwine, 342 U.S. 299, 304–05 & n.15 (1952) (allowing injunction against future tax collection

but not specific performance); see also Younger, 401 U.S. at 45 (Ex parte Young “established the

6One could ask how Ex parte Young could be justified by reference to injunctions and writs available at the

Founding; after all, the Founding was in the era of the divided bench, Sawyer, 124 U.S. at 209–10, and the

prerogative writs were actions at law, Oldham, supra, at 1703. That question slightly misses the mark. Although

the English legal system heard cases at common law and in equity in separate courts, the two bodies of law were

hardly independent. Rather, equity was a supplement to the common law developed to fill remedial gaps. Pfander

& Wentzel, supra, at 1276; Gallogly, supra, at 1231–41 (tracing the development of equity in response to an

ossifying common law). Regardless, our inquiry seeks to find the closest historical analogue possible for a suit

against a State blessed by the Supreme Court and then asks if such an analogy would extend to the case at hand. It is

not the job of a circuit court to resolve whatever anachronisms may exist in Ex parte Young or its progeny.

No. 25-3693 Charlton-Perkins v. Univ. of Cincinnati, et al. Page 21

doctrine that, when absolutely necessary for protection of constitutional rights, [federal courts]

have [the] power to enjoin state officers from instituting criminal actions.”).

Charlton-Perkins’s suit cannot benefit from Ex parte Young’s novel application of the

antisuit injunction to a pre-enforcement action against a State. Indeed, Charlton-Perkins is not

seeking an antisuit injunction or any other form of pre-enforcement relief. The constitutional

harm he alleges—being denied the assistant professor position because of his gender—happened

in the past. There is no future action to enjoin.

So Ex parte Young itself does not enable Charlton-Perkins to avoid sovereign immunity.

But what about the reinstatement suits already blessed by this circuit? See Diaz, 703 F.3d at 964.

Surely, they cannot rest on the same analogy to antisuit injunctions, and public-law suits in

equity against a State were unavailable at the Founding. See Gallogly, supra, at 1315. So,

in order to find the closest historical analogue possible, we need to look to the other actions the

Founders would have imported from English law. We will then consider whether the

logic behind that analogy supports the novel extension of Ex parte Young requested by

Charlton-Perkins.

Various actions at law bearing “significant resemblance to injunctions” were available at

the time of the Founding to “correct the unlawful administration of government.” Pfander &

Wentzel, supra, at 1276–79. “At the Founding, public-law plaintiffs typically did have adequate

avenues for redress outside of Chancery, namely the prerogative writs of certiorari, mandamus,

and prohibition.” Gallogly, supra, at 1316. The writ of certiorari quashed unlawful

administrative orders, the writ of mandamus compelled a government official to perform his

administrative duties, and the writ of prohibition kept non-common law bodies from proceeding

“where they ought not.” Pfander & Wentzel, supra, at 1297–99 (citation omitted).

The writ of mandamus deserves a closer look. Before the Founding, mandamus

developed into a broadly available remedy to compel performance of wrongfully refused duties

of governmental office. 3 William Blackstone, Commentaries *110. And the very first

historical use of mandamus looks somewhat like reinstatement.

No. 25-3693 Charlton-Perkins v. Univ. of Cincinnati, et al. Page 22

Sir Edward Coke, then Lord Chief Justice of the King’s Bench, created mandamus “out

of whole cloth,” Pfander & Wentzel, supra, at 1297 (citation omitted), in James Bagg’s Case

(1615) 77 Eng. Rep. 1271. Bagg was a resident of Plymouth, England. Id. at 1274. Over time,

he developed a habit of disrespecting the town’s mayor. He called one mayor “a cozening

knave”; another, an “insolent fellow.” Id. Worst of all, he “turn[ed] the hinder part of his body

in an inhuman and uncivil manner towards” the second mayor, and “scoffingly, contemptuously,

and uncivilly, with a loud voice,” told the mayor to “[c]ome and kiss.” Id. at 1275 (cleaned up).

For these misdeeds, the mayor and city council kicked him out of Plymouth. Id. at 1271. Gadfly

that he was, he did not accept his ejection and instead requested “a writ to restore the party” from

the King’s Bench. Id. at 1272. Lord Chief Justice Coke held that Bagg could not be so

disenfranchised without authority conferred by the town’s charter or by criminal conviction. Id.

at 1279. Bagg was ordered restored “to his franchise and freedom . . . .” Id. at 1281.

Squinting with modern eyes, that looks a bit like a reinstatement action. After all, Bagg

had been removed from his “‘office’ of ‘freeman,’” Pfander & Wentzel, supra, at 1297 (citation

omitted), and the King’s Bench ordered him reinstated, Bagg’s Case, 77 Eng. Rep. at 1281.

Likewise, in successful reinstatement actions, a plaintiff is ejected from his office of employee,

and a court orders him “restore[d]” to that office. Id.; see, e.g., Diaz, 703 F.3d at 964. But even

to the extent this analogy is appropriate for reinstatement actions, it cannot rescue instatement

actions.7 That is because the duties traditionally compelled by mandamus were

nondiscretionary. Pfander & Wentzel, supra, at 1301. Hiring is generally a discretionary

function. See O’Bryan v. Holy See, 556 F.3d 361, 384 (6th Cir. 2009). It was certainly a

7To be clear, suits in equity for reinstatement would not have been available against a State at the

Founding. See Gallogly, supra, at 1315. While it is true that courts could issue preliminary equitable relief ordering

reinstatement during the pendency of litigation, “a court of equity would not and could not finally determine

whether a plaintiff was validly removed” from office, because “that was a question only a court of law could

settle . . . .” Trump v. Cook, 609 U.S. ___ (2026) (slip op. at 15). In other words, a court in equity could not issue a

permanent injunction ordering reinstatement. See id. at 16 (“‘[A] court of equity has no jurisdiction over the

appointment and removal of public officers,’ for such jurisdiction ‘belongs exclusively to the courts of law.’”

(quoting Sawyer, 124 U.S. at 212)). It is also true that the prerogative writs are an imperfect analogy given that

(1) they were creatures of law, not equity, Oldham, supra, at 1703, and (2) they were issued in the King’s name

from the King’s Bench—in other words, the Crown (analogous to a State for our purposes) had already consented to

suit by virtue of exercising jurisdiction over the application for the writ, Blackstone, supra, at *110. But these

criticisms are academic because we do not write on a blank slate. Instead, we try to find the historical analogue of

best fit for the reinstatement remedy endorsed by this circuit and ask whether the instatement remedy fits likewise.

No. 25-3693 Charlton-Perkins v. Univ. of Cincinnati, et al. Page 23

discretionary function here, where Petren had discretionary authority over whether the University

would hire anyone, let alone Charlton-Perkins. So an analogy to mandamus would be inapt, and

exercising jurisdiction over Charlton-Perkins’s official-capacity equal-protection claim would

subject the State of Ohio to a suit “anomalous and unheard of when the [C]onstitution was

adopted.” Hans, 134 U.S. at 18.

To summarize, the reinstatement remedy recognized by this circuit as sometimes

appropriate for suits against States has an arguable basis in actions available against States at the

Founding. An instatement remedy has far less sure footing.

We therefore affirm the district court’s dismissal of Charlton-Perkins’s official-capacity

equal-protection claims as barred by the Eleventh Amendment.

V.

Finally, Charlton-Perkins appeals the district court’s grant of qualified immunity to

Petren and Uetz on the individual-capacity equal-protection claims. Qualified immunity

provides government officials immunity from suits for civil damages when their conduct does

not violate clearly established statutory or constitutional rights. Pearson v. Callahan, 555 U.S.

223, 231 (2009). The plaintiff has the burden of showing that (1) the facts alleged make out a

violation of a constitutional right and (2) the right at issue was clearly established at the time of

the alleged misconduct. Sexton v. Cernuto, 18 F.4th 177, 184 (6th Cir. 2021). “In determining

whether a right was clearly established, we look first to decisions of the Supreme Court, then to

our own precedents, and then to decisions of other courts of appeal, and we ask whether these

precedents placed the constitutional question beyond debate.” Wright v. City of Euclid, 962 F.3d

852, 869 (6th Cir. 2020) (quoting Hearring v. Sliwowski, 712 F.3d 275, 280 (6th Cir. 2013))

(cleaned up).

Petren and Uetz are entitled to qualified immunity because Charlton-Perkins has not

carried his burden of providing caselaw clearly establishing the constitutional right at issue. See

Sexton, 18 F.4th at 184. In fact, he has not even tried to provide on-point caselaw. Instead, he

argues that this is “the rare ‘obvious case,’ where the unlawfulness of the officer’s conduct is

sufficiently clear even though existing precedent does not address similar circumstances.”

No. 25-3693 Charlton-Perkins v. Univ. of Cincinnati, et al. Page 24

District of Columbia v. Wesby, 583 U.S. 48, 64 (quoting Brosseau v. Haugen, 543 U.S. 194, 199

(2004) (per curiam)). The cases he cites for this “obviousness” exception do him no favors. He

relies principally on Williams v. Maurer, which did not discuss obviousness. 9 F.4th 416, 437–

38 (6th Cir. 2021). There, we held that the conduct at issue violated law that was clearly

established by a prior panel. Id. (citing Barton v. Martin, 949 F.3d 938, 949 (6th Cir. 2020)).

The other case he cites, Moderwell v. Cuyahoga County, is not an obviousness case either. 997

F.3d 653, 665 (6th Cir. 2021) (finding the law at issue clearly established).

Charlton-Perkins’s obviousness argument relies primarily on the record. He points to the

evidence establishing that Petren and Uetz were concerned about the potential legal

consequences for their actions. At the outset, it is unclear why Petren and Uetz’s subjective

knowledge of potential illegality matters. The clearly established prong of qualified immunity

asks not what the officer in question knew about the law, but rather whether “a reasonable

officer” would know that “his conduct was unlawful in the situation he confronted.” Wesby, 583

U.S. at 63 (citation omitted). That is an objective, not subjective, test. But even under the

framework Charlton-Perkins proposes, the evidence does not indicate obviousness. If

anything, the record suggests that Petren thought cancelling the search would be a way to avoid

liability. That would suggest that Petren thought cancelling the search would not violate

Charlton-Perkins’s constitutional rights.

Using the correct objective test does not help Charlton-Perkins either. Obviousness is a

high bar to clear. The Supreme Court found an Eighth Amendment violation obvious when a

prisoner was chained to a hitching post in the hot sun for seven hours and deprived of water and

bathroom breaks, Hope v. Pelzer, 536 U.S. 730, 738 (2002), and when a prisoner was confined in

cells overflowing with human waste for six days, Taylor v. Riojas, 592 U.S. 7, 7–9 (2020) (per

curiam). Similarly, we have found constitutional violations obvious when an officer

“fabricat[ed] evidence to convict three innocent men of a capital offense,” Jackson v. City of

Cleveland, 925 F.3d 793, 825 (6th Cir. 2019), and when an officer “discharg[ed] enough pepper

spray in a detainee’s face to cause him to lose consciousness,” Grawrey v. Drury, 567 F.3d 302,

314 (6th Cir. 2009). The “facts of [those] cases far outstrip what” Charlton-Perkins “suffered

No. 25-3693 Charlton-Perkins v. Univ. of Cincinnati, et al. Page 25

here.” DeLanis v. Metro. Gov’t of Nashville & Davison Cnty., 160 F.4th 732, 745 (6th Cir.

2025).

Given the lack of law on the point, a reasonable administrator could conclude that he

would not violate any applicant’s rights if he simply declined to hire anyone at all. That is

especially true considering the uniqueness of the situation and the consternation surrounding the

job search. The department was up in arms about the alleged conflict of interest. And the person

accusing Petren and Uetz of gender discrimination during the hiring process was the very

individual implicated in the conflict-of-interest issue. Further, Petren expressed concern that

continuing with the hiring process could result in unlawful discrimination against

Charlton-Perkins or the female candidates. In such a scenario, given the absence of on-point

authority directing otherwise, it was not unreasonable for an administrator to think it legal to cure

the taint of discrimination by calling the whole thing off. Regardless of the wisdom of the

decision to cancel the search, it was not so obviously unconstitutional that qualified immunity

should be denied.

We therefore affirm the district court’s dismissal of the personal-capacity equal-

protection claims.

VI.

We AFFIRM.

No. 25-3693 Charlton-Perkins v. Univ. of Cincinnati, et al. Page 26

_________________

CONCURRENCE

_________________

MURPHY, Circuit Judge, concurring. Mark Charlton-Perkins brought statutory claims

against the University of Cincinnati under Title IX and equal-protection claims against two

university officials under 42 U.S.C. § 1983. Judge Bush’s majority opinion explains well why

these claims cannot survive the summary-judgment stage. I write to flag an additional causation

question that the parties have overlooked so that future parties do not make the same mistake.

Charlton-Perkins and the university defendants treat our precedent applying the federal

employment laws as creating an interchangeable body of common-law rules. They simply

assume that the principles that we have incorporated into Title VII apply in full force to sex-

discrimination claims under Title IX and equal-protection claims under § 1983. But we are not a

common-law court and have no power to adopt the employment rules that we think best as a

policy matter. See Alexander v. Sandoval, 532 U.S. 275, 287 (2001). Rather, we must neutrally

interpret the text enacted by Congress (in statutes) or the framers (in the Constitution).

And I see a noticeable difference between the text of Title VII and the texts of Title IX,

§ 1983, and the Equal Protection Clause. Title VII prohibits an employer from taking an adverse

action against an employee “because of” the employee’s “race, color, religion, sex, or national

origin[.]” 42 U.S.C. § 2000e-2(a)(1). Critically, though, it adds that an employee can show that

an employment action arose from one of these five traits if the employee “demonstrates that race,

color, religion, sex, or national origin was a motivating factor for” the action, “even though other

factors also motivated” it. Id. § 2000e-2(m) (emphasis added). So a protected trait might qualify

as a “motivating factor” when it played a role in the employer’s subjective decisionmaking, even

if the employer would have taken the same action for other reasons too. If the employee satisfies

this motivating-factor standard, Title VII then shifts the burden of persuasion to the employer to

prove that it “would have taken the same action in the absence of the impermissible motivating

factor[.]” Id. § 2000e-5(g)(2)(B). This affirmative defense, if successful, allows the employer to

No. 25-3693 Charlton-Perkins v. Univ. of Cincinnati, et al. Page 27

avoid certain remedies (including compensatory damages and reinstatement). Id.; see Comcast

Corp. v. Nat’l Ass’n of Afr. Am.-Owned Media, 589 U.S. 327, 337 (2020).

The parties’ briefing implies that Title VII’s motivating-factor standard extends to claims

under Title IX and § 1983. I am not so sure. Start with Title IX. This title bars schools

receiving federal funds from taking adverse actions “on the basis of sex”: “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 under any education program or activity receiving Federal

financial assistance[.]” 20 U.S.C. § 1681(a). The ordinary meaning of “on the basis of”—like

the ordinary meaning of “because of,” “on account of,” or “by reason of”—requires a plaintiff to

show that sex was at least a but-for cause of the adverse action. Univ. of Tex. Sw. Med. Ctr. v.

Nassar, 570 U.S. 338, 350 (2013) (citation omitted); see Comcast, 589 U.S. at 334; Gross v. FBL

Fin. Servs., Inc., 557 U.S. 167, 176 (2009). In other words, a plaintiff must prove that the

adverse action would not have occurred “but for” the plaintiff’s sex. Nassar, 570 U.S. at 346–

47. If anything, Title IX makes but-for causation only the minimum standard. Its “on the basis

of” text may well require an individual’s sex to be the “main constituent” or “fundamental

ingredient” of the adverse action—not just a but-for cause of the action. Niblock v. Univ. of Ky.,

165 F.4th 460, 469 (6th Cir. 2026) (Sutton, C.J., & Murphy, J., concurring) (quoting I Oxford

English Dictionary 985 (2d ed. 1989)).

What is noticeably missing from Title IX? The motivating-factor language that Congress

added to Title VII. We likely “cannot ignore” this omission under normal rules of statutory

interpretation. Gross, 557 U.S. at 174–75; see Comcast, 589 U.S. at 338. Indeed, the Supreme

Court has refused to read two other employment laws to adopt the “lessened” motivating-factor

“standard” because Congress did not put that standard into those laws. Nassar, 570 U.S. at 349.

For example, the Court has held that Congress’s use of “because of” in the Age Discrimination

in Employment Act (ADEA) requires plaintiffs to show that an employee’s age was a but-for

cause of the employer’s adverse action. See Gross, 557 U.S. at 175–79; 29 U.S.C. § 623(a)(1).

And it has held that Title VII’s anti-retaliation provision (which uses similar “because”

language) likewise requires plaintiffs to show that an employee’s complaints of discrimination

were the but-for cause of the employer’s adverse action. See Nassar, 570 U.S. at 352–60; 42

No. 25-3693 Charlton-Perkins v. Univ. of Cincinnati, et al. Page 28

U.S.C. § 2000e-3(a). As the Fourth Circuit has explained, it would make little sense to use a

motivating-factor test in Title IX when the Supreme Court has refused to extend that test to the

ADEA or even to other parts of Title VII itself. See Sheppard v. Visitors of Va. State Univ., 993

F.3d 230, 236–37 (4th Cir. 2021). And we certainly should not take such a leap just because the

parties fail to brief the relevant distinctions between these two “vastly different” laws. West

Virginia v. B.P.J. ex rel. Jackson, 146 S. Ct. 2356, 2373 (2026) (citation omitted).

The parties also assume that Title VII’s motivating-factor test applies to constitutional

claims under § 1983. That assumption is equally dubious. Section 1983 makes “liable” a state

actor who “subjects, or causes to be subjected,” another person to a constitutional “deprivation”:

Every person who, under color of any statute, ordinance, regulation, custom, or

usage, of any State or Territory or the District of Columbia, subjects, or causes to

be subjected, any citizen of the United States or other person within the

jurisdiction thereof to the deprivation of any rights, privileges, or immunities

secured by the Constitution and laws, shall be liable to the party injured[.]

42 U.S.C. § 1983. Claims under this statute require courts to disentangle statutory questions

(about the meaning of § 1983) from constitutional questions (about the meaning of the

constitutional right at issue in a specific § 1983 case). See Manuel v. Joliet, 580 U.S. 357, 370

(2017); Dibrell v. City of Knoxville, 984 F.3d 1156, 1159–60 (6th Cir. 2021).

Start with the relevant constitutional question: what must prospective public employees

prove to show that they have suffered a “deprivation” of their “rights” under the Equal Protection

Clause? 42 U.S.C. § 1983. The clause tells a State that it may not “deny to any person within its

jurisdiction the equal protection of the laws.” U.S. Const. amend. XIV, § 1. The Supreme Court

has read this text to trigger heightened judicial scrutiny for public-employment decisions tainted

by sex-based animus. See Pers. Adm’r of Mass. v. Feeney, 442 U.S. 256, 272–73 (1979); see

also Engquist v. Or. Dep’t of Agric., 553 U.S. 591, 597, 601, 605 (2008). Yet the Court has also

made clear that this heightened scrutiny applies only if state actors make employment decisions

“at least in part ‘because of,’ not merely ‘in spite of,’ [their] adverse effects upon” a particular

sex. Feeney, 442 U.S. at 279 (emphasis added); see Ashcroft v. Iqbal, 556 U.S. 662, 676–77

(2009). And it is hard to see how an employer could be said to have taken an action “because

of” an employee’s sex if the employer would have taken the same action even if the employee

No. 25-3693 Charlton-Perkins v. Univ. of Cincinnati, et al. Page 29

had been a member of the opposite sex. See Gross, 557 U.S. at 176–77. So the Court’s

constitutional rules for these types of equal-protection claims likely require but-for causation.

Turn to the statutory question: what causation test must public employees prove to

recover for an equal-protection violation under § 1983? Under the statute’s language, a public

employer must “subject[]” an employee to (or “cause[]” the employee “to be subjected” to) the

equal-protection violation. 42 U.S.C. § 1983. This language points to but-for causation even

more directly. To “subject” a plaintiff to a constitutional deprivation, the defendant must

“cause” the plaintiff “to undergo” it. Webster’s New International Dictionary of the English

Language 2510 (2d ed. 1934) (defining “subject”). And to “cause” the deprivation (or cause the

plaintiff to be subjected to it) the defendant must “bring” it “about[.]” Id. at 427 (defining

“cause”). In short, nothing in § 1983 or the Equal Protection Clause seems to leave room for a

motivating-factor test.

Historical practice may well confirm this conclusion. The Court has long told courts that

we should look to the common law of torts from the time of § 1983’s enactment in 1871 when

identifying the elements that a plaintiff must prove to establish a § 1983 claim. See, e.g.,

Thompson v. Clark, 596 U.S. 36, 42 (2022); Manuel, 580 U.S. at 370; Memphis Cmty. Sch. Dist.

v. Stachura, 477 U.S. 299, 306 (1986); see also Dibrell, 984 F.3d at 1159–60. And it has said

that, with few exceptions, the common law of torts generally required a plaintiff to prove but-for

causation (previously labeled “causa sine qua non”). See Comcast, 589 U.S. at 335; 1 Theodore

Sedgwick, A Treatise on the Measure of Damages 199–200 (9th ed. 1912). So, as the Second

Circuit has explained, both the Constitution and § 1983 would seem to require the plaintiff to

prove at least but-for causation. See Naumovski v. Norris, 934 F.3d 200, 212–15 (2d Cir. 2019).

All this said, some other cases complicate matters. For one thing, we once suggested that

a “plaintiff’s race need only be a motivating factor not necessarily the sole factor—in order for

the plaintiff to succeed” on an equal-protection claim in the employment context under § 1983.

Perry v. McGinnis, 209 F.3d 597, 601 (6th Cir. 2000). But we offered no support for this

conclusory sentence other than a citation to one case: Gutzwiller v. Fenik, 860 F.2d 1317, 1328

(6th Cir. 1988). In Gutzwiller, we said that a Title VII claim “mirrors” an equal-protection claim

because plaintiffs must make the same “showing” for both. Id. at 1325. Yet Gutzwiller held that

No. 25-3693 Charlton-Perkins v. Univ. of Cincinnati, et al. Page 30

these two claims require “but for” causation. See id. So Perry wrongly suggested that

Gutzwiller used a motivating-factor test. Granted, the Supreme Court (in Price Waterhouse v.

Hopkins, 490 U.S. 228 (1989)), and Congress (in the Civil Rights Act of 1991) jettisoned

Gutzwiller’s but-for test in favor of a motivating-factor standard in the Title VII context. But

neither source undercuts Gutzwiller’s distinct use of a but-for causation test in the equal-

protection context. And besides, Perry’s sentence about the motivating-factor standard may well

qualify as nonbinding dicta.

For another thing, the Supreme Court has used a burden-shifting approach in other

§ 1983 contexts. See Lemaster v. Lawrence County, 65 F.4th 302, 309 (6th Cir. 2023). Its cases

leave no doubt that constitutional claims under § 1983 require a but-for causal connection. See

Nieves v. Bartlett, 587 U.S. 391, 398–99 (2019); Hartman v. Moore, 547 U.S. 250, 260 (2006).

Sometimes, though, the Court has said that a § 1983 plaintiff need only show that a protected

trait or protected conduct (such as race or speech) was a “substantial” or “motivating” factor for

some harmful state action. Mt. Healthy City Sch. Dist. Bd. of Ed. v. Doyle, 429 U.S. 274, 283–

84, 287 (1977). It has also said that the burden of proof then shifts to the state actor to establish

the absence of but-for causation: that the same action “would have resulted even” if the state

actor had not considered the constitutionally protected trait or conduct. Village of Arlington

Heights v. Metro. Hous. Dev. Corp., 429 U.S. 252, 270 n.21 (1977); see Hunter v. Underwood,

471 U.S. 222, 228 (1985).

This approach dates to a pair of 1977 cases decided on the same day: Mt. Healthy and

Arlington Heights. In Mt. Healthy, the Court recognized the requirement of but-for causation

when a plaintiff claims that protected speech caused an adverse employment action. See 429

U.S. at 285–87. It then said the district court “properly” required the plaintiff to show that

speech was a motivating factor for the employment action. Id. at 287. The Court added that the

defendant had the responding burden to prove “by a preponderance of the evidence” that it

would have still taken the adverse action even if it had not considered the plaintiff’s speech. Id.

The Court’s support for this burden-shifting approach? A single citation to Arlington Heights.

See id. at 287 n.2.

No. 25-3693 Charlton-Perkins v. Univ. of Cincinnati, et al. Page 31

In Arlington Heights, the Court considered whether a village had denied a request to

rezone an area for a racially discriminatory reason in violation of the Equal Protection Clause.

429 U.S. at 254–55. In general, the Court suggested that if a “discriminatory purpose” had been

a “motivating factor” of a legislature’s or an administrative body’s decision, the judiciary would

not be “justified” in giving “deference” to the decision. Id. at 265–66. In the end, though, it saw

insufficient evidence that race had played any motivating role in the zoning decision at issue in

the case. See id. at 268–71. In a footnote, it added that if the plaintiffs had satisfied this

motivating-factor test, the “burden” would have “shifted” to the village to prove “that the same

decision would have resulted even had the impermissible purpose not been considered.” Id. at

270 n.21. The Court’s support for this burden-shifting approach? A single citation to Mt.

Healthy. See id.

Suffice it to say, I have a few questions about this precedent. The Court adopted burden-

shifting in a pair of cases decided on the same day. But these cases did not legally justify the

approach except through circular citations to each other. Compare Mt. Healthy, 429 U.S. at 287

n.2, with Arlington Heights, 429 U.S. at 270 n.21. Yet the approach seems to conflict with

black-letter law. The Court has repeatedly said that Congress enacts statutes against the

“ordinary default rule” that plaintiffs who seek to change the status quo have the burden of

persuasion to satisfy all the elements of their claims. Schaffer ex rel. Schaffer v. Weast, 546 U.S.

49, 56–57 (2005); see Gross, 557 U.S. at 177; Meacham v. Knolls Atomic Power Lab’y, 554 U.S.

84, 92–93 (2008); John Jay McKelvey, Handbook of the Law of Evidence §§ 29–30, at 50–56

(1898). Defendants, by contrast, carry the burden of persuasion for affirmative defenses. See

Schaffer, 546 U.S. at 57. This default rule explains why the Court has clarified that the well-

known McDonnell Douglas burden-shifting approach does not shift the burden of persuasion; it

only shifts the burden of production. See St. Mary’s Honor Ctr. v. Hicks, 509 U.S. 502, 507–11

(1993). So if but-for causation qualifies as a required element of a § 1983 claim (as the statutory

text and precedent seem to suggest), why should the defendant have the burden of persuasion as

to its absence?

To be sure, Justice O’Connor did attempt to justify this burden-shifting approach in the

Title VII context with an analogy to the common law of torts. See Price Waterhouse, 490 U.S. at

No. 25-3693 Charlton-Perkins v. Univ. of Cincinnati, et al. Page 32

263–64 (O’Connor, J., concurring in the judgment). The common law sometimes shifts the

burden of persuasion in multiple-cause cases when a plaintiff’s harm arose from one of several

negligent defendants. See id. Think of the “famous tort case” in which two hunters negligently

discharged their weapons toward the plaintiff, but only one fired the harmful shot. Pineda v.

Hamilton County, 977 F.3d 483, 487 (6th Cir. 2020) (discussing Summers v. Tice, 199 P.2d 1, 2–

5 (Cal. 1948)). After Price Waterhouse, though, the Court has repeatedly declined to extend this

common-law concept to mixed-motive cases under other employment statutes. See Nassar, 570

U.S. at 346–52; Gross, 557 U.S. at 173–79. So it is not clear to me why the concept should

apply in the § 1983 context.

All this caselaw leaves open a key question: which group of cases should apply to

employment-discrimination claims under § 1983? Is it the employment-discrimination cases like

Gross and Nassar that place the burden of persuasion on the plaintiff to prove but-for causation

under other employment statutes with similar language? Or is it the speech and zoning cases like

Mt. Healthy and Arlington Heights that shift the burden of persuasion to the defendant to prove

the absence of but-for causation under § 1983? We need not resolve these questions here

because we can reject Charlton-Perkins’s claims on other grounds. But we will have to confront

them eventually. And parties should recognize the need to brief the distinctions. They should

not simply assume (as the parties have here) that all employment statutes are alike.

Saving these questions for another day, I concur in the majority opinion.