finding support, in a case decided in 1979, for a holding that Title IX of the Educational Amendments of 1972, which was modeled on Title VI, creates a private right of action from the fact that a 1967 decision of the Court of Appeals for the Fifth Circuit, Bossier Parish School Board v. Lemon, 370 F.2d 847 (5th Cir.1967), finding a private right of action under Title VI “was repeatedly cited with approval and never questioned during the ensuing five years” and by “presuming both that [the members of Congress who enacted Title IX in 1972] were aware of the prior interpretation of Title VI and that that interpretation reflects their intent with respect to Title IX”
How later courts described this case
- finding support, in a case decided in 1979, for a holding that Title IX of the Educational Amendments of 1972, which was modeled on Title VI, creates a private right of action from the fact that a 1967 decision of the Court of Appeals for the Fifth Circuit, Bossier Parish School Board v. Lemon, 370 F.2d 847 (5th Cir.1967), finding a private right of action under Title VI “was repeatedly cited with approval and never questioned during the ensuing five years” and by “presuming both that [the members of Congress who enacted Title IX in 1972] were aware of the prior interpretation of Title VI and that that interpretation reflects their intent with respect to Title IX”
- stating, "It is always appropriate to assume that our elected representatives, like other citizens, know the law," and concluding that the Court was "justified in presuming both that those representatives were aware of the prior [judicial] interpretation of [one statute] and that that interpretation reflects their intent with respect to [another, related statute]"
- holding that an implied private cause of action exists under Title IX, which states that “[n]o person in the United States shall, on the basis of sex, be excluded from participation in, be denied to the benefits of, or be subjected to discrimination under any education program or activity receiving Federal financial assistance”
- recognizing that Congress drafted Title IX “with an unmistakable focus on the benefited class,” and did not “writ[e] it simply as a ban on discriminatory conduct by recipients of federal funds or as a prohibition *297 against the disbursement of public funds to educational institutions engaged in discriminatory practices”
Written by the judges who cited it.
The opinion
Mr. Justice Rehnquist,
with whom Mr. Justice Stewart joins, concurring.
Having joined the Court’s opinion in this case, my only purpose in writing separately is to make explicit what seems to me already implicit in that opinion. I think the approach of the Court, reflected in its analysis of the problem in this case and cases such as Santa Clara Pueblo v. Martinez, 436 U. S. 49 (1978), Cort v. Ash, 422 U. S. 66 (1975), and National Railroad Passenger Corp. v. National Assn. of Railroad Passengers, 414 U. S. 453 (1974), is quite different from the analysis in earlier cases such as J. I. Case Co. v. Borak, 377 U. S. 426 (1964). The question of the existence of a private right of action is basically one of statutory construction. See ante, at 688. And while state courts of general jurisdiction still enforcing the common law as well as statu *718 tory law may be less constrained than are federal courts enforcing laws enacted by Congress, the latter must surely look to those laws to determine whether there was an intent to create a private right of action under them.
We do not write on an entirely clean slate, however, and the Court’s opinion demonstrates that Congress, at> least during the period of the enactment of the several Titles of the Civil Rights Act, tended to rely to a large extent on the courts to decide whether there should be a private right of action, rather than determining this question for itself. Cases such as J. I. Case Co. v. Borak, supra, and numerous cases from other federal courts, gave Congress good reason to think that the federal judiciary would undertake this task.
I fully agree with the Court’s statement that “[w]hen Congress intends private litigants to have a cause of action to support their statutory rights, the far better course is for it to specify as much when it creates those rights.” Ante, at 717. It seems to me that the factors to which I have here briefly adverted apprise the lawmaking branch of the Federal Government that the ball, so to speak, may well now be in its court. Not only is it “far better” for Congress to so specify when it intends private litigants to have a cause of action, but for this very reason this Court in the future should be extremely reluctant to imply a cause of action absent such specificity on the part of the Legislative Branch.