Amicus Curiae Brief — Thomas Crowther, et al., Petitioners v. Board of Regents of the University System of Georgia, et al.

No. 25-183

In the Supreme Court of the United States

THOMAS CROWTHER & MACHELLE JOSEPH,

Petitioners,

V.

BOARD OF REGENTS OF THE UNIVERSITY SYSTEM OF

GEORGIA, et al.,

Respondents.

——————

ON WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT

BRIEF OF AMICI CURIAE

STATE OF WEST VIRGINIA

AND 20 OTHER STATES

IN SUPPORT OF RESPONDENTS

JOHN B. MCCUSKEY

Attorney General

OFFICE OF THE

WEST VIRGINIA

ATTORNEY GENERAL

State Capitol Complex

Building 1, Room E-26

Charleston, WV 25305

mwilliams@wvago.gov

(304) 558-2021

MICHAEL R. WILLIAMS

Solicitor General

Counsel of Record

HOLLY J. WILSON

Principal Deputy Solicitor

General

MATTIE F. SHULER

Assistant Solicitor General

Counsel for Amicus Curiae State of West Virginia

I

TABLE OF CONTENTS

Introduction and Interests of Amici Curiae ..................... 1

Summary of Argument ........................................................ 3

Argument .............................................................................. 5

I.

Congress did not unambiguously create a

private cause of action for employees in

Title IX ......................................................................... 5

A. Title IX’s text does not contain an express

private right of action .............................................. 7

B. Title IX’s purpose and context reinforce

why this Court should not imply a private

right of action............................................................ 9

C. Court decisions never put States on notice

of Title IX employment claims.............................. 15

II.

Petitioners’ ratification theory fails ........................ 17

Conclusion ........................................................................... 21

II

TABLE OF AUTHORITIES

Page(s)

Cases

Alexander v. Gardner-Denver Co.,

415 U.S. 36 (1974) ......................................................... 12

Alexander v. Sandoval,

532 U.S. 275 (2001) ..................................... 1, 5, 8, 20, 21

Arlington Cent. Sch. Dist. Bd. of Educ. v.

Murphy,

548 U.S. 291 (2006) ................................................... 6, 15

Armstrong v. Exceptional Child Ctr., Inc.,

575 U.S. 320 (2015) ....................................................... 11

Barnes v. Gorman,

536 U.S. 181 (2002) ......................................................... 6

Brown v. Gen. Servs. Admin.,

425 U.S. 820 (1976) ....................................................... 10

Cannon v. Univ. of Chi.,

441 U.S. 677 (1979) .............. 4, 7, 9, 10, 15, 16, 17, 18, 20

CBOCS West, Inc. v. Humphries,

553 U.S. 442 (2008) ....................................................... 12

Cent. Bank of Denver, N.A. v. First

Interstate Bank of Denver, N.A.,

511 U.S. 164 (1994) ....................................................... 18

Cisco Sys., Inc. v. Doe I,

146 S. Ct. 1882 (2026) ..................................................... 2

Comcast Corp. v. Nat’l Ass’n of African

Am.-Owned Media,

589 U.S. 327 (2020) ................................................... 5, 20

III

Cummings v. Premier Rehab Keller,

PLLC,

596 U.S. 212 (2022) ................................................. 14, 20

Davis v. Monroe Cnty. Bd. of Educ.,

526 U.S. 629 (1999) ....................................................... 16

Ernst & Ernst v. Hochfelder,

425 U.S. 185 (1976) ....................................................... 11

Fin. Oversight & Mgmt. Bd. for P.R. v.

Centro de Periodismo Investigativo,

Inc.,

598 U.S. 339 (2023) ......................................................... 6

Fitzgerald v. Barnstable Sch. Comm.,

555 U.S. 246 (2009) ....................................................... 11

Forest Grove Sch. Dist. v. T.A.,

557 U.S. 230 (2009) ....................................................... 17

Franklin v. Gwinnett Cnty. Pub. Schs.,

503 U.S. 60 (1992) ................................................... 18, 20

FS Credit Opportunities Corp. v. Saba

Cap. Master Fund, Ltd.,

146 S. Ct. 1546 (2026) ............................................... 7, 10

Gebser v. Lago Vista Indep. Sch. Dist.,

524 U.S. 274 (1998) ................................................... 9, 16

Gonzaga Univ. v. Doe,

536 U.S. 273 (2002) ............................................... 6, 8, 20

Great Am. Fed. Sav. & Loan Ass’n v.

Novotny,

442 U.S. 366 (1979) ................................................. 10, 12

Gregory v. Ashcroft,

501 U.S. 452 (1991) ....................................................... 14

IV

Jackson v. Birmingham Bd. of Educ.,

544 U.S. 167 (2005) ....................................... 4, 15, 16, 17

Johnson v. Railway Express Agency, Inc.,

421 U.S. 454 (1975) ....................................................... 12

King-White v. Humble Indep. Sch. Dist.,

803 F.3d 754 (5th Cir. 2015) ......................................... 11

Landor v. La. Dep’t of Corr. & Pub. Safety,

146 S. Ct. 1931 (2026) ..................................................... 6

Lane v. Peña,

518 U.S. 187 (1996) ....................................................... 19

Lorillard v. Pons,

434 U.S. 575 (1978) ....................................................... 17

Martin v. United States,

605 U.S. 395 (2025) ....................................................... 15

Medina v. Planned Parenthood S. Atl.,

606 U.S. 357 (2025) ................................................... 5, 20

N. Haven Bd. of Educ. v. Bell,

456 U.S. 512 (1982) ......................................................... 8

N.Y. Gaslight Club, Inc. v. Carey,

447 U.S. 54 (1980) ......................................................... 14

Nixon v. United States,

506 U.S. 224 (1993) ......................................................... 8

O’Connor v. Peru State Coll.,

781 F.2d 632 (8th Cir. 1986) ......................................... 18

Oklahoma v. Castro-Huerta,

597 U.S. 629 (2022) ....................................................... 18

Ollier v. Sweetwater Union High Sch.

Dist.,

768 F.3d 843 (9th Cir. 2014) ......................................... 15

V

Pennhurst State Sch. & Hosp. v.

Halderman,

451 U.S. 1 (1981) ............................................. 1, 6, 16, 19

Snyder-Hill v. Ohio State Univ.,

48 F.4th 686 (6th Cir. 2022) ......................................... 11

Sossamon v. Texas,

563 U.S. 277 (2011) ....................................................... 20

Stanley v. Trs. of Cal. State Univ.,

433 F.3d 1129 (9th Cir. 2006) ....................................... 11

Tex. Dep’t of Hous. & Cmty. Affairs v.

Inclusive Cmtys. Project, Inc.,

576 U.S. 519 (2015) ....................................................... 17

Thompson v. Bd. of Educ. of Romeo Cmty.

Schs.,

709 F.2d 1200 (6th Cir. 1983) ....................................... 18

Touche Ross & Co. v. Redington,

442 U.S. 560 (1979) ......................................................... 8

Univ. of Pa. v. EEOC,

493 U.S. 182 (1990) ......................................................... 9

Webster v. Fall,

266 U.S. 507 (1925) ....................................................... 18

West Virginia v. B.P.J.,

146 S. Ct. 2356 (2026) ................................................. 5, 8

Wilkie v. Robbins,

551 U.S. 537 (2007) ......................................................... 6

Ziglar v. Abbasi,

582 U.S. 120 (2017) ................................................... 5, 20

VI

Statutes

20 U.S.C. § 1681 .................................................................... 7

20 U.S.C. § 1682 .................................................................... 7

20 U.S.C. § 1686 .................................................................... 8

42 U.S.C. § 1981a .......................................................... 11, 21

42 U.S.C. § 2000d-3............................................................. 14

42 U.S.C. § 2000d-4a........................................................... 20

42 U.S.C. § 2000d-7..........................................6, 7, 11, 19, 20

42 U.S.C. § 2000e-5 ................................................... 2, 11, 12

42 U.S.C. § 2000e-8 ............................................................. 13

W. VA. CODE § 16B-17-1..................................................... 13

Other Authorities

Education Amendments of 1972,

Pub. L. No. 92-318, § 901, 86 Stat. 235 ....................... 10

Education Amendments of 1974,

Pub. L. No. 93-380, § 844, 88 Stat. 484 ......................... 8

Equal Employment Opportunity Act of

1972,

Pub. L. No. 92-261, §§ 2-3, 86 Stat. 103 ........................ 9

1

INTRODUCTION

AND INTERESTS OF AMICI CURIAE

The days of implying private rights of action left and

right are over. For a stretch of the mid-twentieth century,

the story was quite different: courts read causes of action

into statutes about wherever a lawsuit seemed useful to a

law’s purpose. Not now, though. The Court has since

confirmed that a private right to sue must come from

Congress, not from the judiciary’s sense of what might

make a statute work better. Creating paths to relief on

the fly is thus a disfavored enterprise. See Alexander v.

Sandoval, 532 U.S. 275, 286-87 (2001). So a plaintiff who

asks a court to imply an action now bears the burden of

showing that Congress, in the statute’s text and structure,

meant to create one.

This presumption against ad hoc judicial lawmaking

should be at its strongest here because Title IX is

Spending Clause legislation. The federal government

gives a school funding, and the school promises in return

not to discriminate against any “person” on the basis of

sex. This arrangement, like all other Spending Clause

deals, requires consent.

Congress must state the

conditions on federal money clearly enough that a State

knows the consequences of accepting it. See Pennhurst

State Sch. & Hosp. v. Halderman, 451 U.S. 1, 17 (1981).

But Title IX contains no express private right of action.

So there’s strong reason to think that the States never

consented to private causes of action under the law.

And indeed, the expected answer proves to be the right

one. Nothing in Title IX’s text, purpose, or structure

suggests the States knew that liability was part of the

deal. States believed Title VII was the proper place for

those claims. This Court, consistent with its modern

2

precedent, should therefore refuse to imply a private

employment discrimination claim in Title IX.

To be sure, Title IX prohibits sex discrimination—but

that restraint says nothing about who may sue to enforce

it. The statute’s reach over discrimination against

employees therefore doesn’t put a damages action in their

hands. Any such action would also let employees bypass

the detailed remedy Congress built specifically for them

in Title VII, a scheme it enacted just before Title IX. And

Congress never later ratified an employee-brought action.

Although Congress removed States’ sovereign immunity

and expanded the scope of programs subject to Title IX in

1986 and 1988, no decision of this Court had recognized an

employee action at that point.

States like the Amici States are best positioned to say

what Title IX’s bargain contains, as they’re the ones

who’ve accepted it. They run nearly every public school

and most of the Nation’s largest universities. They

receive more Title IX money than any other class of

recipient. And they employ the teachers and coaches

whose claims this case concerns. They’ve stood on the

other side of the contract Petitioners describe—and they

are the defendants who would pay the judgments

Petitioners seek, from state treasuries, in a forum that

bypasses the very state civil-rights agencies Congress

made the first stop for these claims. 42 U.S.C. § 2000e5(c)-(d). The States can say with firsthand authority that

the deal they made did not include this.

“[T]he decision to create a private right of action is one

better left to legislative judgment in the great majority of

cases.” Cisco Sys., Inc. v. Doe I, 146 S. Ct. 1882, 1890

(2026) (cleaned up). So too here. The Court should affirm.

3

SUMMARY OF ARGUMENT

I. When the federal government ties strings to money

it hands to the States, it must spell its terms out clearly.

A State must be able to look at the law and know exactly

what it’s agreeing to. Here, neither Title IX’s text,

purpose, nor its structure put States on notice that they

could face liability for workplace sex discrimination. To

the contrary, all the circumstances suggested to the States

that Title VII was the rightful home for those cases.

Title IX’s text provides only one remedy: the

government can cut off funding to a school that breaks the

rules. And while Petitioners note that employees count as

“persons” the law protects, that argument misses the

point. Being protected by a law and being allowed to sue

under it are two different things.

Title IX’s purpose and structure don’t fill the gap the

text leaves. Just three months before Title IX passed,

Congress gave school employees a way to fight

discrimination through another law—Title VII. That law

comes with a careful set of steps: deadlines for

complaining, a government agency that reviews the claim

first, and limits on how much money a person can win. So

employees have always had a way to vindicate their rights.

And giving employees a Title VII workaround would

render its carefully crafted scheme a nullity.

If Title IX is rewritten to offer new ways to sue, then

the States will pay a hefty price, too. Congress didn’t just

build Title VII’s careful process for employees—it made

the States a working part of it. In most States, a worker’s

discrimination complaint goes first to the State’s own

civil-rights agency, which investigates and tries to resolve

it before anyone ends up in court. The States have run

these agencies for decades, handling exactly these kinds

4

of complaints against their own schools and universities.

A Title IX employment lawsuit throws all of that aside.

This Court’s precedents also haven’t yet recognized a

Title IX employment action, contrary to what Petitioners

suggest.

Their principal authorities, Jackson v.

Birmingham Board of Education, 544 U.S. 167 (2005),

and Cannon v. University of Chicago, 441 U.S. 677 (1979),

blessed a private right of action for those vindicating sex

discrimination against students—those with no other path

for justice. But that rationale doesn’t apply to employees

with many other options.

II. As backup, Petitioners reason that Congress

ratified a private cause of action for employees under Title

IX when it passed two more laws in 1986 and 1988. It

didn’t.

Congress can only adopt an understanding that

already exists. And in 1986 and 1988, Congress had no

employment action to bless. No court had held that

employees could sue under Title IX. This Court hadn’t

even decided that a Title IX lawsuit could win money

damages at all until 1992—years after the laws Petitioners

lean on. So, when Congress acted, it had no settled rule

about employee lawsuits to approve. Petitioners try to fill

that hole with a couple of stray footnotes and two old

lower-court cases, but those are far too thin to give a State

the clear warning it’s owed before it can be sued and made

to pay out of its own treasury.

And neither law created a Title IX employee action,

anyway. The 1986 law says only that if someone already

has the right to sue a State, the State can’t hide behind its

immunity to dodge the case. It assumes the right to sue

comes from somewhere else—it doesn’t hand out a new

5

one. The 1988 law just widened which school programs

the rules cover. Neither says a word about who may sue.

ARGUMENT

I.

Congress did not unambiguously create a

private cause of action for employees in Title IX.

“[P]rivate rights of action to enforce federal law must

be created by Congress,” and the “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.” Sandoval, 532 U.S. at

286. This Court has “sworn off the habit of venturing

beyond Congress’s intent.” Id. at 287. It has called the

expansion of implied remedies a “disfavored judicial

activity.” Ziglar v. Abbasi, 582 U.S. 120, 135 (2017)

(cleaned up). And it has instructed that decisions from the

freewheeling era be read narrowly, as relics of a time

when courts “assumed it to be a proper judicial function to

provide such remedies as are necessary to make effective

a statute’s purpose.” Comcast Corp. v. Nat’l Ass’n of

African Am.-Owned Media, 589 U.S. 327, 334 (2020)

(cleaned up).

Layered on top of this distaste for implied causes of

action is Title IX’s status as a piece of Spending Clause

legislation. The Spending Clause vests Congress with the

power to “spend money,” not to “regulate conduct.” West

Virginia v. B.P.J, 146 S. Ct. 2356, 2382 (2026) (Gorsuch,

J., concurring) (citing Medina v. Planned Parenthood S.

Atl., 606 U.S. 357, 370-71 (2025)). Yes, Congress may

attach strings to federal funds it doles out. Medina, 606

U.S. at 365. But when it does so, it must state its terms

“clearly and unambiguously” so that the recipient may

accept them “voluntarily and knowingly.” Id. at 373 & n.4;

6

Pennhurst, 451 U.S. at 17. A State cannot accept

conditions knowingly if it “is unaware of the conditions or

is unable to ascertain what is expected of it.” Pennhurst,

451 U.S. at 17.

The necessary clarity needed for Spending Clause

conditions extends to whether a private right of action

exists. Barnes v. Gorman, 536 U.S. 181, 187 (2002).

“[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.” Gonzaga Univ. v. Doe, 536 U.S.

273, 280 (2002) (cleaned up). And “Congress is in a far

better position than a court to evaluate the impact of a new

species of litigation against those who act on the public’s

behalf.” Wilkie v. Robbins, 551 U.S. 537, 562 (2007)

(cleaned up). The natural, default punishment for

noncompliance is “not a private cause of action” but

“action by the Federal Government to terminate funds.”

Gonzaga, 536 U.S. at 280 (cleaned up).

When the recipient of the relevant federal funding is a

State, the Court considers whether “a state official”

deciding to accept that funding “would clearly

understand” the obligations and penalties that came with

the money. Arlington Cent. Sch. Dist. Bd. of Educ. v.

Murphy, 548 U.S. 291, 296 (2006).

This clearunderstanding requirement ensures that the State is

really offering its “voluntary and knowing assent” to the

condition. Landor v. La. Dep’t of Corr. & Pub. Safety, 146

S. Ct. 1931, 1944 (2026) (cleaned up). And because Title

IX lifts the States’ immunity from whatever suits the law

allows, 42 U.S.C. § 2000d-7, the state officials’

understanding has special gravity, see Pet.App.15a-16a;

see also, e.g., Fin. Oversight & Mgmt. Bd. for P.R. v.

7

Centro de Periodismo Investigativo, Inc., 598 U.S. 339,

346-47 (2023).

State officials deciding whether to accept federal

education funds under Title IX wouldn’t have imagined

that they might face an employment-discrimination suit

thereunder.

Neither Title IX’s text, purpose, nor

statutory structure suggests that employees who suffer

from sex discrimination at educational institutions can

bring suit under Title IX.

A. Title IX’s text does not contain an express

private right of action.

Title IX’s text prohibits sex discrimination against any

“person,” but it says nothing about a private right of

action. Cannon, 441 U.S. at 683. The statute is entirely

silent on the latter. This Court has recognized as much,

and Petitioners don’t seriously dispute that fact. Id.

Instead,

“Congress

has

provided”

another

“mechanism” for enforcing its prohibition on

discrimination: the federal government can withdraw

funding if a school is noncompliant.

FS Credit

Opportunities Corp. v. Saba Cap. Master Fund, Ltd., 146

S. Ct. 1546, 1553 (2026) (cleaned up); see 20 U.S.C. § 1682.

“And language establishing an express remedial scheme

elsewhere in the statute may foreclose a private cause of

action to enforce even those statutes that admittedly

create

substantive private rights.”

FS

Credit

Opportunities Corp., 146 S. Ct. at 1553 (cleaned up).

Title IX’s internal architecture aligns with that sole

express remedy. The statute’s exceptions are a catalog of

program-access questions, addressing admissions at

various classes of institutions, religious and military

schools, social organizations, and similar subjects. 20

8

U.S.C. § 1681(a)(1)-(9). Its companion provisions preserve

separate living facilities, id. § 1686, and Congress soon

directed the agency to write regulations governing

athletics, Education Amendments of 1974, Pub. L. No. 93380, § 844, 88 Stat. 484, 612. This Court walked through

that architecture recently and read the statute

accordingly, as a regulation of federally funded education

programs administered through its rules and its funding

hammer. See West Virginia, 146 S. Ct. at 2371-73.

What is left of petitioners’ textual case is merely a

mistaken argument based on how employees are covered

“person[s].” North Haven did say that “persons” include

employees. N. Haven Bd. of Educ. v. Bell, 456 U.S. 512,

520-21 (1982).

But whether Title IX prohibits

discrimination against a certain class of persons and

whether it provides a cause of action for that class are

different inquiries. Sandoval, 532 U.S. at 286-289. North

Haven answered only a question about agency authority,

not private enforcement. “[T]he fact that a federal statute

has been violated and some person harmed does not

automatically give rise to a private cause of action in favor

of that person.” Touche Ross & Co. v. Redington, 442 U.S.

560, 568 (1979) (cleaned up). And even where a right can

be found, “a plaintiff suing under an implied right of action

still must show that the statute manifests an intent to

create not just a private right but also a private remedy.”

Gonzaga, 536 U.S. at 284 (cleaned up).

So the “plain language of the enacted text”—that is,

“the best indicator of intent”—rejects Petitioners’

position. Nixon v. United States, 506 U.S. 224, 232 (1993).

9

B. Title IX’s purpose and context reinforce why

this Court should not imply a private right of

action.

Title IX’s purpose and context—the two things

thought to justify implying a remedy for students in

Cannon—also point the other way here.

1. “Congress enacted Title IX in 1972 with two

principal objectives in mind: to avoid the use of federal

resources to support discriminatory practices and to

provide individual citizens effective protection against

those practices.” Gebser v. Lago Vista Indep. Sch. Dist.,

524 U.S. 274, 286 (1998) (cleaned up). An implied right of

action for employment sex discrimination serves neither

objective. It does not advance the first; federal funds are

protected by the termination mechanism. Cannon, 441

U.S. at 704. And, unlike in Cannon, it is not helpful for or

“necessary” to the second. Id. at 703. Title VII already

provided educational employees “effective protection

against [discriminatory] practices” when Georgia

accepted Title IX funds. Gebser, 524 U.S. at 286 (cleaned

up).

Shortly before Title IX became law, Congress gave

school employees a remedy for sex discrimination through

Title VII. The Equal Employment Opportunity Act of

1972 deleted Title VII’s exemption for educational

institutions and extended the statute to state and local

governments. Pub. L. No. 92-261, §§ 2-3, 86 Stat. 103, 103104. Congress acted against “the widespread and

compelling problem of invidious discrimination in

educational institutions,” and its amendment “expose[d]”

employment decisions at those institutions to the “same

enforcement procedures applicable to other employment

decisions,” an “integrated, multistep enforcement

procedure” run through the Commission. Univ. of Pa. v.

10

EEOC, 493 U.S. 182, 190 (1990) (cleaned up). And Title IX

arrived after this overhaul. Education Amendments of

1972, Pub. L. No. 92-318, § 901, 86 Stat. 235, 373. So, while

the Cannon student needed an implied action to secure

the statute’s second purpose (because fund termination to

the institution would do nothing for the student), an

employee never has. Title VII has always provided the

effective protection that Title IX’s purpose demands.

Title VII provides an important contrast, too. The

1972 Congress knew how to give employees a federalcourt remedy against the States, because it had just done

so, in detail, with deadlines, agencies, and defenses

attached. Months later, it wrote no employment remedy

into Title IX at all. Cf. FS Credit Opportunities Corp., 146

S. Ct. at 1555 (“We have traditionally been reluctant to

conclude that Congress implicitly created a private

remedy in one provision when it explicitly did so in

another.”). And a “precisely drawn, detailed statute”

sitting beside a general funding condition tells the reader

which one governs the subject it details. Brown v. Gen.

Servs. Admin., 425 U.S. 820, 834 (1976).

2. An implied right of action in Title IX would also

“frustrate the underlying purpose of the legislative

scheme.” Cannon, 441 U.S. at 703. Title IX employment

claims would strip out every procedure Congress wrote

into Title VII. Yet this Court warned early that Title VII

rights may not be pursued through other vehicles, because

a plaintiff otherwise “could completely bypass the

administrative process, which plays such a crucial role in

the scheme established by Congress in Title VII.” Great

Am. Fed. Sav. & Loan Ass’n v. Novotny, 442 U.S. 366, 376

(1979).

Compare the statutes’ pre-suit requirements. Under

Title VII, a school employee must file a charge within 180

11

or 300 days. 42 U.S.C. § 2000e-5(e)(1). For a Title IX

implied action, courts borrow state personal-injury

limitations periods of two years or more. King-White v.

Humble Indep. Sch. Dist., 803 F.3d 754, 759-761 (5th Cir.

2015); Stanley v. Trs. of Cal. State Univ., 433 F.3d 1129,

1134-36 (9th Cir. 2006). Some circuits then add discoveryrule accrual, under which institutional claims do not

accrue until the plaintiff discovers the school’s deliberate

indifference, a rule that has revived claims decades old.

Snyder-Hill v. Ohio State Univ., 48 F.4th 686, 698-702

(6th Cir. 2022). Under Title VII, the State’s own fairemployment agency and the Commission get the first

look, and conciliation precedes any suit. 42 U.S.C. § 2000e5(b)-(d).

But a Title IX implied action has “no

administrative exhaustion requirement and no notice

provisions,” so the plaintiff files directly in federal court.

Fitzgerald v. Barnstable Sch. Comm., 555 U.S. 246, 255

(2009).

The differences don’t stop there. Under Title VII,

compensatory and punitive damages are capped according

to employer size. 42 U.S.C. § 1981a(b)(3). Title IX claims

have no caps at all, and the defendants are the States. Id.

§ 2000d-7(a)(1).

So, if employees were allowed to sue under Title IX,

they’d have a convenient workaround to all of Title VII’s—

intentional—roadblocks. But a judicially created remedy

“cannot be extended, consistently with the intent of

Congress,” to “nullify the effectiveness of the carefully

drawn procedural restrictions” on a comparable express

action. Ernst & Ernst v. Hochfelder, 425 U.S. 185, 210

(1976); see Armstrong v. Exceptional Child Ctr., Inc., 575

U.S. 320, 327 (2015) (implied remedies are subject to

express and implied statutory limitations). Petitioners’

own filings chart the migration from Title VII to Title IX,

12

collecting district court decisions that let Title IX

employment claims proceed precisely where Title VII

claims applied. Pet’rs’.Supp.Br.6.

3. Petitioners answer with a catalog of cases blessing

“overlapping” antidiscrimination remedies. Pet’rs.Br.4551. The catalog proves the States’ point, because in every

case the overlap was Congress’s undeniably intentional

handiwork. CBOCS permitted Section 1981 retaliation

claims alongside Title VII because “Congress explicitly

created the overlap,” preserving an express nineteenthcentury statute when it enacted the modern one. CBOCS

West, Inc. v. Humphries, 553 U.S. 442, 455-56 (2008).

Johnson v. Railway Express Agency, Inc., 421 U.S. 454,

459-61 (1975), and Alexander v. Gardner-Denver Co., 415

U.S. 36, 47-49 (1974), rest on the same fact, that Title VII

arrived against pre-existing rights Congress chose to

leave standing.

But where the right originates in Title VII, that statute

provides an exclusive remedy. The claim may not travel

through another vehicle, because Congress’s “detailed

and specific provisions” would otherwise be optional.

Novotny, 442 U.S. at 375-76. An implied Title IX claim

falls into that camp.

4. If employees get a Title VII workaround, the States

will suffer.

Where a State maintains its own fair-employment

statute and agency, no federal charge may proceed until

the state agency has had at least sixty days to act, and the

Commission must accord substantial weight to the state

agency’s findings. 42 U.S.C. § 2000e-5(b)-(d). Congress

made the States first-line enforcers of employmentdiscrimination law, including for their own workforces,

and it authorized the Commission to formalize that

13

partnership through cooperative agreements with the

state agencies. Id. § 2000e-8(b). Those provisions are the

means Congress chose for dividing this work between two

sovereigns.

The Amici States built that machinery and ran it. West

Virginia’s Human Rights Act has long barred sex

discrimination by the State’s employers, and it supplies

administrative and judicial remedies of its own. W. VA.

CODE § 16B-17-1 et seq. The West Virginia Human

Rights Commission investigates, conciliates, and

adjudicates those complaints, against state and private

employers alike, under precisely the design Congress

contemplated. Its jurisdiction reaches the employees of

the public colleges and universities overseen by the State’s

Higher Education Policy Commission, and of every county

school system in the State. Fifty years of practice under

that arrangement is what the States understood would

govern employment claims.

An implied Title IX action casts that framework aside.

A claim Congress routed first through the state agency

would instead proceed straight to federal court, against

the State, for uncapped damages, with the state

commission never notified. The State would learn of the

allegation for the first time in a complaint, years after the

conduct, with no opportunity to investigate, conciliate, or

correct. And the state agency would have no early window

into cases Congress most clearly meant it to oversee,

those brought by the State’s own employees against the

State’s own institutions.

That reordering of the federal-state balance is what

this Court refuses to find in statutory silence. If Congress

intends to alter “the usual constitutional balance between

the States and the Federal Government,” it must make

that intention “unmistakably clear in the language of the

14

statute.” Gregory v. Ashcroft, 501 U.S. 452, 460-61 (1991)

(cleaned up). Decisions about who staffs and governs a

State’s public institutions lie close to “the heart of

representative government.” Id. at 463 (cleaned up). And

while “Title VII merely provides a supplemental right to

sue in federal court if satisfactory relief is not obtained in

state forums,” N.Y. Gaslight Club, Inc. v. Carey, 447 U.S.

54, 67 (1980), Title IX would push the state forums aside

entirely.

5. Left with no support in Title IX itself, Petitioners

turn to Title VI, the law Congress modeled Title IX on.

Title VI contains a provision—Section 604—that mostly

exempts discrimination in the workplace from its

coverage. 42 U.S.C. § 2000d-3. Title IX has no such

provision. From that difference, Petitioners reason that

Title IX must cover sex discrimination in the workplace—

and that employees must therefore be able to sue.

Pet.Br.45-51. It’s a dangerous game to “treat statutory

silence as a license to freely supply remedies we cannot be

sure Congress would have chosen to make available.”

Cummings v. Premier Rehab Keller, PLLC, 596 U.S. 212,

226 (2022). But anyway, Petitioners’ logic proves too little.

Section 604’s exemption—at most—shows that Title IX

covers discrimination against employees.

But the

inference ends there.

Section 604 doesn’t—

unambiguously—show that employees may sue.

Read correctly, Title VI favors the States. Congress

passed Title VI and Title VII together in 1964, and it used

Section 604 to leave job discrimination mainly to Title VII.

Months before passing Title IX, Congress made the same

choice for schools, extending Title VII to cover them. See

supra Part I.B.1. A State looking at Title IX against that

history would have understood one thing: workplace

discrimination belongs to Title VII.

15

C. Court decisions never put States on notice of

Title IX employment claims.

Petitioners answer all of this with two of this Court’s

decisions—Cannon and Jackson—that they say put the

States on notice that accepting Title IX funds meant

accepting

employment-discrimination

liability.

Pet’rs.Br.55. That’s a dubious argument considering that

Congress is the one who’s supposed to provide notice of

Spending Clause conditions, not this Court.

See

Arlington Cent. Sch., 548 U.S. at 296 (contemplating that

“legislation” will provide the requisite notice (cleaned up)).

Finding notice through judicial precedent alone invites

the kind of judge-driven construction of causes of action

that is now considered so problematic. Even more when

legislative history chiefly drives that precedent, see, e.g.,

Cannon, 441 U.S. at 694-702, and “legislative history is not

the law.” Martin v. United States, 605 U.S. 395, 408 (2025)

(cleaned up).

In any event, Petitioners overread both cases. Each

concerned students, and any notice that either supplied

ran to the students’ charter alone.

Cannon implied a private action for a rejected medicalschool applicant, and it did so precisely because the blunt

remedy of fund termination could not protect the

individual student wrongly denied an educational benefit.

441 U.S. at 704-05, 709-10. Whatever notice Cannon gave

the States in 1979, it was notice that students excluded

from federally funded programs could sue—not that

employees could sue for workplace discrimination that

Title VII already governed. And that might be less

surprising given that “students are the statute’s very

focus.” Ollier v. Sweetwater Union High Sch. Dist., 768

F.3d 843, 866 (9th Cir. 2014).

16

Jackson extended the Cannon action to retaliation, but

on a rationale that confirms its student-centered limit.

Roderick Jackson coached a girls’ basketball team,

complained that the school shortchanged the girls, and

was removed from coaching for saying so. Jackson, 544

U.S. at 171-72. The Court presupposed the Cannon action

and asked only whether retaliation “falls within the

statute’s prohibition of intentional discrimination on the

basis of sex” that the existing action enforces. Id. at 17374, 178. It held that retaliation does, because without

protection for those who report, Title IX’s protection of

students “would be difficult, if not impossible, to achieve,”

teachers and coaches being “often in the best position to

vindicate the rights of their students.” Id. at 180-81

(cleaned up). Jackson thus enforced the beneficiaries’

charter through the adults who speak for them. It did not

hold that every person the prohibition touches may sue for

every injury the prohibition covers.

Petitioners lean hardest on Jackson’s statement that

recipients “have been on notice” of “private suits for

intentional sex discrimination” since Cannon, and that

Pennhurst poses no bar to suits for “intentional acts that

clearly violate Title IX.” 544 U.S. at 181-83. But Jackson

grounded that notice in a specific line of authority—

Cannon, Gebser, and Davis v. Monroe County Board of

Education, 526 U.S. 629 (1999), id. at 182-83—and every

one of those decisions concerned discrimination against

students: deliberate indifference to student harassment in

Gebser and Davis, and exclusion of a student applicant in

Cannon. Again, whatever might be said about grounding

notice in precedents (rather than legislative enactments),

the notice Jackson described is notice of that liability.

Nothing in Jackson, and nothing in the cases it invoked,

told a State that its acceptance of education funds also

exposed it to an uncapped damages action by its

17

employees for conduct Title VII had regulated since three

months before Title IX became law. On petitioners’

contrary reading, Jackson would have resolved this case

in 2005. The Eleventh Circuit was right that none of the

decisions petitioners stack “speak[s] to whether Title IX

created an implied right of action for sex discrimination in

employment.” Pet.App.18a.

***

Text, structure, and purpose converge. A State

accepting Title IX funds would understand employment

discrimination to be Title VII’s domain, governed by the

procedures Congress had just built for it—not the subject

of a silent, uncapped damages action against the State

itself. That understanding controls. Congress did not

speak clearly enough to bind the States to what

Petitioners now ask this Court to imply, and under the

Spending Clause that silence is dispositive.

II.

Petitioners’ ratification theory fails.

Separately, Petitioners argue that Congress ratified a

Title IX employment action by enacting Section 2000d-7,

which lifted States’ sovereign immunity in 1986, and the

Civil Rights Restoration Act, which extended covered

programs in 1988. Pet’rs.Br.19, 24, 41. Their theory fails.

1. First, in 1986 and 1988, a Title IX employment claim

wasn’t widely recognized.

Absent that settled

understanding, the reenactment canon has nothing to

carry. E.g. Tex. Dep’t of Hous. & Cmty. Affairs v.

Inclusive Cmtys. Project, Inc., 576 U.S. 519, 536 (2015);

see also Forest Grove Sch. Dist. v. T.A., 557 U.S. 230, 243

n.11 (2009); Lorillard v. Pons, 434 U.S. 575, 580 (1978).

By 1988, all Congress had was North Haven and

Cannon. And as discussed, North Haven said only that

18

employees were “persons” covered by Title IX. Cannon

recognized a private right of action for students who

suffered from sex discrimination. Neither blessed a Title

IX employment claim. Even more, this Court did not hold

that the Cannon action carries damages at all until

Franklin, in 1992, four years after the enactments. And

Franklin reached that holding partly by reasoning

forward from the 1986 Act itself. Franklin v. Gwinnett

Cnty. Pub. Schs., 503 U.S. 60, 72-73 (1992).

What petitioners offer in place of a holding is a

collection of fragments.

They note that Cannon

mentioned employment in a footnote and that Franklin

declined to limit Title IX relief to backpay.

Pet’rs.Supp.Br.10. Yet “the [reenactment] canon does not

apply to dicta.” Oklahoma v. Castro-Huerta, 597 U.S. 629,

644 (2022). The lower-court backdrop is just as thin; it

consists of only two decisions. Pet’rs.Supp.Br.11. The

first is O’Connor v. Peru State College, which mentioned

employment claims in a footnote while affirming dismissal

of the Title IX claim on other grounds. 781 F.2d 632, 642

& n.8 (8th Cir. 1986). The second is Thompson v. Board

of Education of Romeo Community Schools, which

resolved class-certification and standing questions and

never analyzed whether the cause of action exists. 709

F.2d 1200, 1202, 1206 (6th Cir. 1983). Even taking all these

together, Petitioners are far from proving that Title IX

was “roundly understood” to provide a private right of

action for employees. Pet’rs.Br.40. “Questions which

merely lurk in the record, neither brought to the attention

of the court nor ruled upon, are not to be considered as

having been so decided as to constitute precedents.”

Webster v. Fall, 266 U.S. 507, 511 (1925). So it’s hard to

see how Petitioners can invoke them as “a consistent

judicial construction.” Cent. Bank of Denver, N.A. v. First

Interstate Bank of Denver, N.A., 511 U.S. 164, 185 (1994).

19

And under Pennhurst, the point is stronger still.

Unreasoned statements in footnotes cannot deliver to a

sovereign the unambiguous notice the Constitution

requires before the States’ treasuries are opened.

2. Second, even if a settled understanding existed in

1986 and 1988 that Title IX permits an employment claim,

neither enactment actually adopted that understanding.

Subsection (a)(1) of Section 2000d-7 states that a State

“shall not be immune” from suit in federal court “for a

violation” of Title IX and the other listed statutes.

Subsection (a)(2) states that “[i]n a suit against a State for

a violation of a statute referred to in paragraph (1),”

remedies at law and in equity “are available for such a

violation to the same extent” as against other defendants.

42 U.S.C. § 2000d-7(a).

Every operative phrase

presupposes something outside the provision: a cause of

action that already exists. Petitioners concede the point

by emphasizing Sandoval’s observation that Section

2000d-7 “by its terms applies [only] to suits ‘for a violation

of a statute.’” Pet’rs.Br.24 (quoting 532 U.S. at 292). Just

so. The section reaches suits that exist, but it nowhere

says who may bring them, for what injuries, or on what

terms.

Section 2000d-7’s history confirms its function. It is

“the ‘equalization’ provision,” and it was “enacted in

response to … Atascadero,” where this Court held that

the States retained immunity from Rehabilitation Act

damages suits because Congress had not spoken with the

required clarity. Lane v. Peña, 518 U.S. 187, 197-198

(1996). “By enacting Section 1003, Congress sought to

provide the sort of unequivocal waiver that [Supreme

Court] precedents demand.” Id. at 198. So, Section 2000d7 did repair work on immunity to preserve whatever suits

the law otherwise allowed. And a waiver of immunity is

20

“strictly construed, in terms of its scope, in favor of the

sovereign.” Sossamon v. Texas, 563 U.S. 277, 285 (2011)

(cleaned up). Petitioners invert that canon, reading a

strictly construed immunity provision as an implicit

charter for new plaintiff classes.

The Civil Rights Restoration Act is further from the

mark. It enlarged the definition of a covered “program or

activity.” 42 U.S.C. § 2000d-4a. Franklin described its

effect precisely, saying that the Act broadened coverage

“[w]ithout in any way altering the existing rights of action

and the corresponding remedies permissible under” the

statutes it amended. 503 U.S. at 73.

3. Third, this Court has addressed a ratification

argument built on both provisions. In Sandoval, the

plaintiffs and the United States argued that Section

2000d-7 and the Civil Rights Restoration Act ratified

decisions recognizing a private action to enforce Title VI’s

disparate-impact regulations. 532 U.S. at 291. The Court

held that ratification could not reach the asserted right,

because “none of [its] decisions establishes (or even

assumes)” it, so “[i]ncorporating [the Court’s] cases in the

amendments would thus not help.” Id. at 291-92. The

Court also recognized that Section 2000d-7 applies by its

terms only to suits for a statutory violation and so says

nothing about the action’s scope. Id. at 292. Too, the

Court said that the Restoration Act is “even less on point,”

because it is “impossible to understand what this has to do

with implied causes of action.” Id.

***

History did not stop after Cannon, Petitioners remind

the Court. Pet’rs.Supp.Br.8. Yet history is their

difficulty. What came after Cannon was Sandoval,

Gonzaga, Ziglar, Comcast, Cummings, and Medina, each

21

narrowing the space for judicially built remedies and each

tightening the notice owed to funding recipients.

Congress’s own conduct runs the same way. When

Congress means to give employees remedies, it writes

them. It wrote them in Title VII in March 1972, and again

in 1991, capping them dollar-by-dollar according to

employer size. 42 U.S.C. § 1981a(b)(3). Petitioners would

have this Court believe that the same era of Congresses

that carefully capped the express employment action

silently blessed an uncapped one beside it. They would

also assume that Congresses that have otherwise been

active in creating paths to relief when they wanted to

would stand silently by as several courts denied relief in

precisely these circumstances. See Pet.18-20.

What Petitioners call ratification is Cannon’s method

under a new label, purpose-first implication recast as

congressional command. This Court has “sworn off” that

method, Sandoval, 532 U.S. at 287, and a change of label

does not revive it.

CONCLUSION

The Court should affirm.

22

Respectfully submitted.

JOHN B. MCCUSKEY

Attorney General

OFFICE OF THE

WEST VIRGINIA

ATTORNEY GENERAL

State Capitol Complex

Building 1, Room E-26

Charleston, WV 25305

mwilliams@wvago.gov

(304) 558-2021

MICHAEL R. WILLIAMS

Solicitor General

Counsel of Record

HOLLY J. WILSON

Principal Deputy Solicitor

General

MATTIE F. SHULER

Assistant Solicitor General

Counsel for Amicus Curiae State of West Virginia

23

ADDITIONAL LEGAL

REPRESENTATIVES OF THE STATES

STEVE MARSHALL

Attorney General

State of Alabama

LIZ MURRILL

Attorney General

State of Louisiana

CORI MILLS

Acting Attorney General

State of Alaska

LYNN FITCH

Attorney General

State of Mississippi

TIM GRIFFIN

Attorney General

State of Arkansas

CATHERINE HANAWAY

Attorney General

State of Missouri

JAMES UTHMEIER

Attorney General

State of Florida

AUSTIN KNUDSEN

Attorney General

State of Montana

RAÚL LABRADOR

Attorney General

State of Idaho

MICHAEL T. HILGERS

Attorney General

State of Nebraska

THEODORE E. ROKITA

Attorney General

State of Indiana

DREW WRIGLEY

Attorney General

State of North Dakota

BRENNA BIRD

Attorney General

State of Iowa

ANDY WILSON

Attorney General

State of Ohio

KRIS KOBACH

Attorney General

State of Kansas

GENTNER DRUMMOND

Attorney General

State of Oklahoma

24

ALAN WILSON

Attorney General

State of South Carolina

MARTY JACKLEY

Attorney General

State of South Dakota

JONATHAN SKRMETTI

Attorney General and

Reporter

State of Tennessee

KEN PAXTON

Attorney General

State of Texas