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, ET AL.,

v.

Petitioners,

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 THE CHAMBER OF COMMERCE OF

THE UNITED STATES OF AMERICA AS

AMICUS CURIAE IN SUPPORT OF

RESPONDENTS

JENNIFER B. DICKEY

JORDAN L. VON BOKERN

U.S. CHAMBER LITIGATION

CENTER

1615 H Street, N.W.

Washington, D.C. 20062

CHRISTOPHER G. MICHEL

Counsel of Record

CAROLINE STEPHENS MILNER

KIRKLAND & ELLIS LLP

1301 Pennsylvania Ave., N.W.

Washington, D.C. 20004

(202) 389-5000

christopher.michel@kirkland.com

SETH SMITHERMAN

DAVID HUTCHISON

KIRKLAND & ELLIS LLP

401 West 4th Street, Ste. 4000

Austin, TX 78701

Counsel for Amicus Curiae

ii

TABLE OF CONTENTS

Page

TABLE OF AUTHORITIES .......................................iv

INTEREST OF AMICUS CURIAE ............................1

INTRODUCTION AND SUMMARY OF

ARGUMENT .....................................................2

ARGUMENT ...............................................................4

I.

PETITIONERS’ PROPOSED PRIVATE

RIGHT OF ACTION WOULD HAVE

FAR-REACHING ADVERSE

CONSEQUENCES ...........................................4

A.

Courts Have Broadly Interpreted

Title IX’s Scope.......................................5

B.

The ACA May Further Expand

Title IX’s Reach ......................................7

C.

Implying A Cause Of Action For

Employment Discrimination

Under Title IX Would Undermine

Title VII ................................................10

II.

TITLE IX DOES NOT CREATE AN

IMPLIED PRIVATE RIGHT OF

ACTION FOR EMPLOYMENT

DISCRIMINATION ........................................14

A.

Under The Separation Of Powers,

Only Congress Can Create

Private Rights Of Action......................14

B.

Title IX’s Text, Structure, And

Context Do Not Create A Private

Cause Of Action For Employment

Discrimination .....................................19

iii

C.

Petitioners Provide No Grounds

To Justify An Implied Title IX

Cause Of Action For Employment

Discrimination .....................................22

CONCLUSION ..........................................................28

iv

TABLE OF AUTHORITIES

Page

Cases

Alden v. Maine,

527 U.S. 706 (1999) .............................................. 17

Alexander v. Sandoval,

532 U.S. 275 (2001) ............... 15, 16, 20, 21, 24, 26

Anderson v. Crouch,

169 F.4th 474 (4th Cir. 2026) ................................ 8

Armstrong v. Exceptional Child Ctr.,

Inc.,

575 U.S. 320 (2015) ........................................ 16, 17

Barnes v. Gorman,

536 U.S. 181 (2002) ........................................ 20, 27

Bivens v. Six Unknown Federal

Narcotics Agents,

403 U.S. 388 (1971) ........................................ 18, 19

Blue Chip Stamps v. Manor Drug

Stores,

421 U.S. 723 (1975) .............................................. 14

Buettner-Hartsoe v. Balt. Lutheran High

Sch. Ass’n,

96 F.4th 707 (4th Cir. 2024) .................................. 7

Campbell v. Drexel Univ.,

785 F. Supp. 3d 48 (E.D. Pa. 2025) ....................... 7

v

Cannon v. Univ. of Chi.,

441 U.S. 677 (1979) .................................. 13, 23, 24

Carlson v. Green,

446 U.S. 14 (1980) ................................................ 19

Castro v. Yale Univ.,

518 F. Supp. 3d 593 (D. Conn. 2021) ..................... 5

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) ................ 1-4, 15, 16, 20, 28

Citizens United v. FEC,

558 U.S. 310 (2010) .............................................. 24

Cohen v. Brown Univ.,

991 F.2d 888 (1st Cir. 1993) .................................. 6

Cohens v. Virginia,

19 U.S. 264 (1821) ................................................ 23

Cummings v. Premier Rehab Keller,

P.L.L.C.,

596 U.S. 212 (2022) ................................ 8, 9, 17, 20

Dep’t of Agric. Rural Dev. Rural Hous.

Serv. v. Kirtz,

601 U.S. 42 (2024) ................................................ 25

vi

Doe v. BlueCross BlueShield of Tenn.,

Inc.,

926 F.3d 235 (6th Cir. 2019) .................................. 8

Doe v. Mercy Cath. Med. Ctr.,

850 F.3d 545 (3d Cir. 2017) ............................... 5, 7

Egbert v. Boule,

596 U.S. 482 (2022) .............................. 4, 15, 19, 27

Fernandez v. United States,

146 S. Ct. 1292 (2026) .......................................... 22

Fitzgerald v. Barnstable Sch. Comm.,

555 U.S. 246 (2009) ........................................ 11, 21

Fort Bend County v. Davis,

587 U.S. 541 (2019) .......................................... 2, 11

FS Credit Opportunities Corp. v. Saba

Cap. Master Fund, Ltd.,

146 S. Ct. 1546 (2026) ............... 2, 4, 14, 15, 20, 27

Garcia v. Salvation Army,

918 F.3d 997 (9th Cir. 2019) ................................ 11

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

524 U.S. 274 (1998) .................................. 10, 20, 21

Goldey v. Fields,

606 U.S. 942 (2025) .............................................. 19

Gonzaga Univ. v. Doe,

536 U.S. 273 (2002) ............................ 16, 17, 20, 26

vii

Great Am. Fed. Sav. & Loan Ass’n v.

Novotny,

442 U.S. 366 (1979) .......................................... 4, 11

Gregory v. Ga. Dep’t of Hum. Res.,

355 F.3d 1277 (11th Cir. 2004) ............................ 12

Handlon v. Rite Aid Servs., LLC,

513 F. App’x 523 (6th Cir. 2013) ......................... 12

Health & Hosp. Corp. of Marion Cnty. v.

Talevski,

599 U.S. 166 (2023) .............................................. 22

Hernandez v. Mesa,

589 U.S. 93 (2020) .......................................... 15, 16

E.H. ex rel. Herrera v. Valley Christian

Acad.,

616 F. Supp. 3d 1040 (C.D. Cal. 2022) .................. 7

Int’l Bhd. of Teamsters v. Hanke,

339 U.S. 470 (1950) ........................................ 23, 24

Jackson v. Birmingham Bd. of Educ.,

544 U.S. 167 (2005) .......................................... 9, 26

Janus Cap. Grp., Inc. v. First Derivative

Traders,

564 U.S. 135 (2011) .............................................. 18

Jeldness v. Pearce,

30 F.3d 1220 (9th Cir. 1994) .............................. 5, 6

viii

Karanik v. Cape Fear Acad., Inc.,

608 F. Supp. 3d 268 (E.D.N.C. 2022) .................... 7

Kisor v. Wilkie,

588 U.S. 558 (2019) .............................................. 24

Klinger v. Dep’t of Corr.,

107 F.3d 609 (8th Cir. 1997) .................................. 6

Kopko v. Lehigh Valley Health Network,

776 F. App’x 768 (3d Cir. 2019) ........................... 12

L.B. v. Premera Blue Cross,

781 F. Supp. 3d 1128 (W.D. Wash. 2025).............. 9

Lakoski v. James,

66 F.3d 751 (5th Cir. 1995) .................................. 12

Loper Bright Enters. v. Raimondo,

603 U.S. 369 (2024) .............................................. 24

Lucas v. VHC Health,

128 F.4th 213 (4th Cir. 2025) ................................ 9

Mach Mining, LLC v. EEOC,

575 U.S. 480 (2015) .............................................. 11

Medina v. Planned Parenthood S. Atl.,

606 U.S. 357 (2025) ............... 15, 16, 20, 21, 23, 27

Nat’l Pork Producers Council v. Ross,

598 U.S. 356 (2023) .............................................. 23

ix

Nat’l R.R. Passenger Corp. v. Morgan,

536 U.S. 101 (2002) .............................................. 12

Nestle USA, Inc. v. Doe,

593 U.S. 628 (2021) .............................................. 16

North Haven Board of Education v.

Bell,

456 U.S. 512 (1982) .............................................. 25

Peltier v. Charter Day Sch., Inc.,

37 F.4th 104 (4th Cir. 2022) (en banc) .............. 3, 6

Pritchard v. Blue Cross Blue Shield of

Ill.,

159 F.4th 646 (9th Cir. 2025) ................................ 9

Stoneridge Inv. Partners, LLC v. Sci.Atlanta, Inc.,

552 U.S. 148 (2008) ........................ 3, 12, 13, 17, 18

Superintendent of Ins. of N.Y. v.

Bankers Life & Cas. Co.,

404 U.S. 6 (1971) .................................................. 18

Tomei v. Parkwest Med. Ctr.,

24 F.4th 508 (6th Cir. 2022) .................................. 8

Transamerica Mortg. Advisors, Inc.

(TAMA) v. Lewis,

444 U.S. 11 (1979) ................................................ 21

Trump v. Slaughter,

146 S. Ct. 2283 (2026) .......................................... 17

x

Va. Bankshares, Inc. v. Sandberg,

501 U.S. 1083 (1991) ...................................... 14, 17

W.R. Grace & Co. v. Loc. 759, Int’l

Union of United Rubber,

461 U.S. 757 (1983) .............................................. 11

Wells v. Hense,

235 F. Supp. 3d 1 (D.D.C. 2017) ............................ 6

West Virginia v. B.P.J. ex rel. Jackson,

146 S. Ct. 2356 (2026) .......................................... 10

Ziglar v. Abbasi,

582 U.S. 120 (2017) .............................................. 15

Statutes

20 U.S.C. § 1681 ................................................ 2, 5, 19

20 U.S.C. § 1682 ........................................................ 21

20 U.S.C. § 1687 .......................................................... 5

42 U.S.C. § 1981a .......................................... 10, 11, 13

42 U.S.C. § 2000d-7 ................................................... 26

42 U.S.C. § 2000e ................................................ 11, 13

42 U.S.C. § 2000e-2 ................................................... 10

42 U.S.C. § 2000e-5 ............................................... 2, 10

42 U.S.C. § 18116 .................................................... 3, 8

xi

Equal Employment Opportunity Act,

Pub. L. No. 92-261,

86 Stat. 103 (Mar. 24, 1972) ................................ 21

Constitution

U.S. Const. art. I ....................................................... 14

U.S. Const. art. III..................................................... 15

Other Authorities

Amy Coney Barrett,

Originalism and Stare Decisis,

92 Notre Dame L. Rev. 1921 (2017) .................... 24

Economics Daily,

U.S. BUREAU OF LABOR STATISTICS

(Nov. 18, 2024), .................................................... 10

Economics News Release,

U.S. BUREAU OF LABOR STATISTICS

(Aug. 7, 2026), ...................................................... 10

National Center for Health Workforce

Analysis,

State of the U.S. Health Care

Workforce (Dec. 2025)........................................... 10

Sex Segregation in Youth Rodeo Events

Under Title IX Reguls.,

2021 WL 222745 (O.L.C. Jan. 13,

2021) ....................................................................... 6

xii

Transcript of Oral Argument,

CBOCS West, Inc. v. Humphries,

553 U.S. 442 (2008) (No. 06-1431)

(Scalia, J.). ............................................................ 15

U.S. Chamber of Commerce Institute

for Legal Reform,

Ill-Suited: Private Rights of Action

and Privacy Claims 14 (July 2019) ..................... 13

U.S. Chamber of Commerce Institute

for Legal Reform,

The U.S. Lawsuit System Costs

America’s Small Businesses $160

Billion (Jan. 4, 2024) ........................................... 13

1

INTEREST OF AMICUS CURIAE1

The Chamber of Commerce of the United States of

America is the world’s largest business organization.

As the nation’s leading advocate for business, the

Chamber represents companies and professional

organizations of every size, in every industry sector,

and from every region of the country. An important

function of the Chamber is to represent the interests

of its members in matters before Congress, the

Executive Branch, and the courts. To that end, the

Chamber regularly files amicus curiae briefs in cases,

like this one, that raise issues of concern to the

nation’s business community.

The Chamber has a substantial interest in this

case because petitioners seek an implied right of

action that Congress did not create and that could be

used to sue businesses. As this Court has consistently

explained in recent years, including at the Chamber’s

urging, that result defies the separation of powers.

Simply put, no defendant should be subject to suit

under federal law unless Congress—acting through

the democratic process, with opportunities for input

from private parties and compromise on policy

tradeoffs—decided to make such a suit available. See,

e.g., Cisco Sys., Inc. v. Doe I, 146 S. Ct. 1882, 1890-91

(2026). Because Congress did not make such a choice

here, suits like petitioners’ may not proceed.

1 No counsel for any party authored this brief in whole or in

part, and no entity or person, aside from amicus, its members, or

its counsel, made any monetary contribution intended to fund

the brief’s preparation or submission.

2

INTRODUCTION AND SUMMARY OF

ARGUMENT

Petitioners allege that respondents discriminated

against them on the basis of sex by engaging in

adverse employment practices. Congress has created

a cause of action to remedy that wrong. It is in

Title VII of the Civil Rights Act of 1964, one of the

most familiar provisions of federal law for American

employers. In that provision, which has been

amended and refined many times over six decades,

Congress expressly permitted employees to sue their

employers for sex-based employment discrimination,

42 U.S.C. § 2000e-5(f)—but it did so subject to

numerous

carefully

defined

conditions

and

limitations, see, e.g., Fort Bend County v. Davis, 587

U.S. 541, 544-45 (2019).

Before this Court, petitioners assert no Title VII

claims. Instead, they seek to proceed under Title IX of

the Education Amendments of 1972, 20 U.S.C.

§ 1681(a). But Title IX does not expressly create any

private cause of action, let alone one allowing

employees to sue employers for sex-based employment

discrimination.

That

should

make

this

a

straightforward case. After all, as the Court confirmed

twice just last Term, “the power to create causes of

action belongs to Congress,” not to courts. Cisco Sys.,

Inc. v. Doe I, 146 S. Ct. 1882, 1890 (2026); see FS

Credit Opportunities Corp. v. Saba Cap. Master Fund,

Ltd., 146 S. Ct. 1546, 1553 (2026).

Petitioners rely almost entirely on prior decisions

of this Court that have allowed a few narrowly

prescribed private claims to proceed under Title IX.

3

But none of those decisions, each dating from a bygone

era of statutory interpretation, permitted an implied

Title IX claim for employment discrimination.

Petitioners thus seek to extend this Court’s decisions

to create a new implied right of action that this Court

has never approved. But the “decision to extend [a]

cause of action,” no less than the decision to create

one, “is for Congress, not” courts. Stoneridge Inv.

Partners, LLC v. Sci.-Atlanta, Inc., 552 U.S. 148, 165

(2008). And having “firmly committed to the view that

judicially created causes of action offend the

separation of powers in almost every circumstance,”

Cisco, 146 S. Ct. at 1891, this Court should decline

petitioners’ invitation to continue further down a road

that it never should have taken.

Recognizing petitioners’ proposed private right of

action would also have far-reaching implications.

Although Title IX’s substantive prohibition applies

most often to public educational institutions like those

in this case, the statutory text has been interpreted

broadly enough to reach many other entities receiving

federal funding, including for-profit businesses. See,

e.g., Peltier v. Charter Day Sch., Inc., 37 F.4th 104,

113, 127 (4th Cir. 2022) (en banc). In addition, the

Affordable Care Act (ACA) extends Title IX’s

antidiscrimination

bar

and

“enforcement

mechanisms” to a vast array of healthcare entities

receiving federal funds. 42 U.S.C. § 18116(a).

Accepting petitioners’ position thus could create

multiple

new

channels

for

employmentdiscrimination suits against large numbers of private

businesses entirely separate from the “detailed

4

administrative and judicial process” that Congress

created for such suits under Title VII. Great Am. Fed.

Sav. & Loan Ass’n v. Novotny, 442 U.S. 366, 372-73

(1979).

At the very least, those significant consequences

for businesses provide “a single sound reason to defer

to Congress” before further extending the implied

right of action under Title IX. Cisco, 146 S. Ct. at 1891

(quoting Egbert v. Boule, 596 U.S. 482, 491 (2022)).

That is particularly true because the Court is

“reluctant to conclude that Congress implicitly

created a private remedy in one provision when it

explicitly did so in another.” Saba, 146 S. Ct. at 1555.

At bottom, employment-discrimination suits like

petitioners’ should proceed under the Title VII

framework that Congress expressly created after

public debate and compromise, not a framework that

would have to be fashioned on the fly by courts.

ARGUMENT

I.

PETITIONERS’ PROPOSED PRIVATE

RIGHT OF ACTION WOULD HAVE FARREACHING ADVERSE CONSEQUENCES

The question whether Title IX includes an implied

private right of action for employment discrimination

implicates much more than public education. Courts

have broadly interpreted Title IX’s substantive

prohibition to apply far beyond that traditional

confine. And because the ACA incorporates Title IX’s

enforcement mechanisms, the practical scope of the

question presented reaches further still. Employees

covered by Title IX directly or through the ACA—

5

likely tens of millions in total—could use an implied

remedy to bypass the requirements for the express

cause of action for employment discrimination in

Title VII. The Court should not allow such

circumvention of the framework that Congress has

carefully crafted through the democratic process.

A.

Courts Have Broadly Interpreted

Title IX’s Scope

Title IX’s antidiscrimination mandate reaches far

beyond

“traditional

educational

institutions.”

Jeldness v. Pearce, 30 F.3d 1220, 1225-26 (9th Cir.

1994). It applies to “any education program or activity

receiving Federal financial assistance.” 20 U.S.C.

§ 1681(a). A “‘program or activity’ means ‘all of the

operations’” of certain “kinds of entities, ‘any part of

which’ is extended federal funding.” Doe v. Mercy

Cath. Med. Ctr., 850 F.3d 545, 553 (3d Cir. 2017)

(quoting 20 U.S.C. § 1687). In addition to traditional

educational institutions, the listed entities include

any “corporation, partnership, or other private

organization, or … sole proprietorship” that “is

principally engaged in the business of providing

education, health care, housing, social services, or

parks and recreation.” 20 U.S.C. § 1687(3) (emphasis

added).

Courts have interpreted Title IX to apply to an

expansive selection of seemingly unexpected entities.

In Mercy, for example, the Third Circuit held that a

medical resident employed at a private hospital could

sue under Title IX because its residency program

qualified as an education program or activity. 850

F.3d at 552-58; see also Castro v. Yale Univ., 518 F.

6

Supp. 3d 593, 604-05 (D. Conn. 2021) (similar).

Several circuits have applied Title IX to prison

systems offering inmates educational and vocational

programs. Jeldness, 30 F.3d at 1226; Klinger v. Dep’t

of Corr., 107 F.3d 609, 615 (8th Cir. 1997). And the

Fourth Circuit applied Title IX to both a nonprofit

charter school and a for-profit entity helping operate

it. Peltier, 37 F.4th at 127; see Wells v. Hense, 235 F.

Supp. 3d 1, 4 (D.D.C. 2017) (similar).2

Once any part of an entity is subject to Title IX,

moreover, the coverage has been applied entity-wide,

reaching beyond the educational part of that entity.

See Cohen v. Brown Univ., 991 F.2d 888, 894 (1st Cir.

1993) (“[I]f any arm of an educational institution

receive[s] federal funds, the institution as a whole

must comply with Title IX’s provisions.”); Klinger, 107

F.3d at 615 (concluding state “prison system as a

whole” qualifies as an education program or activity).

An implied cause of action for employment

discrimination under Title IX would thus have farreaching and unpredictable consequences well beyond

traditional educational institutions.

Broad and sometimes inconsistent interpretations

about what qualifies as “Federal financial assistance”

add even more opportunity for an implied claim to

apply in unanticipated ways. For example, several

2 Administrative interpretations of Title IX reinforce the vast

scope of entities potentially covered. For example, the

Department of Justice issued an opinion concluding that Title IX

applies to youth rodeo competitions offered by South Dakota’s 4H program. Sex Segregation in Youth Rodeo Events Under

Title IX Reguls., 2021 WL 222745, at *2 (O.L.C. Jan. 13, 2021).

7

courts have held that Paycheck Protection Program

loans issued by private lenders qualify. Karanik v.

Cape Fear Acad., Inc., 608 F. Supp. 3d 268, 280

(E.D.N.C. 2022); E.H. ex rel. Herrera v. Valley

Christian Acad., 616 F. Supp. 3d 1040, 1049 (C.D. Cal.

2022). And courts are split about whether Medicare

funds or even tax-exempt status subject an entity to

Title IX. Compare Mercy, 850 F.3d at 558 (assuming

Medicare funding sufficient), and Valley Christian,

616 F. Supp. 3d at 1049-50 (tax-exempt status

sufficient), with Campbell v. Drexel Univ., 785 F.

Supp. 3d 48, 56-57 (E.D. Pa. 2025) (“Medicare and

Medicaid payments … are not qualifying federal

financial assistance[.]”), and Buettner-Hartsoe v. Balt.

Lutheran High Sch. Ass’n, 96 F.4th 707, 714 (4th Cir.

2024) (“Tax exemption is not ‘Federal financial

assistance.’”).

To be clear, the Chamber cites these cases not to

endorse them, but to illustrate the many contexts in

which a newly minted cause of action could operate.

B.

The ACA May

Title IX’s Reach

Further

Expand

Congress’s incorporation of Title IX’s remedial

scheme in the ACA means that the Court’s resolution

of the question presented in this case could also have

a domino effect on the healthcare sector. The ACA

provides in relevant part:

[A]n individual shall not, on the ground

prohibited under … title IX … be

excluded from participation in, be denied

the benefits of, or be subjected to

discrimination under, any health

8

program or activity, any part of which is

receiving Federal financial assistance[.]

… The enforcement mechanisms

provided for and available under …

title IX … shall apply for purposes of

violations of this subsection.

42 U.S.C. § 18116(a).

It is easy to see how implying a cause of action

under Title IX could work a considerable expansion of

the ACA. Any cause of action for employment

discrimination recognized here would likely be treated

as an “enforcement mechanism[] … available under

… title IX,” and would thus “apply” equally to

“discrimination under” “any health program or

activity.” Id.; see Cummings v. Premier Rehab Keller,

P.L.L.C., 596 U.S. 212, 218 (2022) (observing that the

ACA “expressly incorporates the rights and remedies

provided under Title VI,” which is listed alongside

Title IX in the ACA); see also Anderson v. Crouch, 169

F.4th 474, 493 (4th Cir. 2026) (“[T]he [ACA] ties its

antidiscrimination provision directly to Title IX’s[.]”).3

Courts have had no trouble incorporating causes of

3 Several circuits have also held that the ACA incorporates

the entire remedial scheme of the listed statutes. E.g., Tomei v.

Parkwest Med. Ctr., 24 F.4th 508, 514-15 (6th Cir. 2022) (holding

the ACA “adopt[s] the Rehabilitation Act’s … limitations on

compensatory or punitive damages”). Thus, where the relevant

underlying statute lacks some remedial limitation, so does the

ACA. See Doe v. BlueCross BlueShield of Tenn., Inc., 926 F.3d

235, 239-40 (6th Cir. 2019) (noting that “Title VI, Title IX, and

§ 504 do not require the exhaustion of administrative remedies

before bringing a private cause of action”).

9

action into the ACA, even where they were only

implied. E.g., L.B. v. Premera Blue Cross, 781 F. Supp.

3d 1128, 1135 (W.D. Wash. 2025). In fact, the Fourth

Circuit has already found the ACA has an implied

retaliation claim by importing Jackson from the

Title IX context. Lucas v. VHC Health, 128 F.4th 213,

222-23 (4th Cir. 2025) (citing Jackson v. Birmingham

Bd. of Educ., 544 U.S. 167, 173-74 (2005)).

Any new implied cause of action under Title IX

thus might well be incorporated as a matter of course

under the ACA to cover countless healthcare

employees. Courts have interpreted the ACA’s “health

program or activity” just as expansively as Title IX’s

education program or activity, including by

encompassing “all” of an entity’s operations. See, e.g.,

Pritchard v. Blue Cross Blue Shield of Ill., 159 F.4th

646, 658-60 (9th Cir. 2025). If a cause of action for

employment discrimination is implied under Title IX,

courts could apply it across all operations of

“healthcare entities receiving federal funds” under the

ACA. Cummings, 596 U.S. at 218.

Petitioners’ position thus risks sprawling spillover

effects. In a case about whether to extend an implied

employment-discrimination cause of action to a

basketball coach and art teacher at a public

university, the Court could open the door to all kinds

of unlikely plaintiffs—for example, a secretary at a

dentist office, a salesman at a health insurance

company, a scientist at a pharmaceutical

manufacturer, or in-house counsel at a hospital

system. Indeed, the healthcare and education

industries alone employ roughly 18 million and 13

10

million workers, respectively.4 So about 18 percent of

the nation’s total labor force could avail themselves of

a new, freestanding cause of action for employment

discrimination if this Court creates one.5

C.

Implying A Cause Of Action For

Employment Discrimination Under

Title IX Would Undermine Title VII

The implied cause of action proposed by petitioners

would not just be far-reaching; it would circumvent

Congress’s carefully defined limits on the express

cause of action for employment discrimination that

Congress created in Title VII. “Title VII prohibits

employment discrimination ‘because of … sex.’” West

Virginia v. B.P.J. ex rel. Jackson, 146 S. Ct. 2356,

2373 (2026) (citation omitted); see 42 U.S.C. § 2000e2(a)(1). But “[u]nlike Title IX, Title VII contains an

express cause of action, and specifically provides for

relief in the form of monetary damages” subject to

numerous limitations carefully chosen by Congress.

Gebser v. Lago Vista Indep. Sch. Dist., 524 U.S. 274,

283 (1998) (citing 42 U.S.C. §§ 2000e-5(f), 1981a).

At the outset, before suing their employers, wouldbe Title VII plaintiffs must file a charge with the

4 National Center for Health Workforce Analysis, State of the

U.S. Health Care Workforce, 2025, at 2 (Dec. 2025),

https://tinyurl.com/mr2f2znx; The Economics Daily, U.S.

BUREAU

OF

LABOR

STATISTICS

(Nov.

18,

2024),

https://tinyurl.com/ynzzrryx.

5 Economics News Release, U.S. BUREAU OF LABOR

STATISTICS (Aug. 7, 2026), https://tinyurl.com/35z5exsd.

11

Equal

Employment

Opportunity

Commission

(EEOC), generally within 180 days of the

discriminatory act. Fort Bend, 587 U.S. at 544. The

EEOC must then either attempt conciliation or

dismiss the charge. Id. at 544-45; see Mach Mining,

LLC v. EEOC, 575 U.S. 480, 486-87 (2015) (explaining

that the EEOC’s “obligation” to attempt to resolve the

dispute through “conciliation” is “a key component of

the statutory scheme”). The EEOC must also provide

the complainant with a right-to-sue notice. Fort Bend,

587 U.S. at 545. Only then may the complainant sue—

within 90 days of receiving that notice. Id.

Importantly, Title VII also caps compensatory

damages. See 42 U.S.C. § 1981a(b)(3). And it limits

liability to employers with 15 or more employees. See

Garcia v. Salvation Army, 918 F.3d 997, 1006 (9th Cir.

2019) (citing 42 U.S.C. § 2000e(b)).

Title IX has none of these limits. To begin, it “has

no administrative exhaustion requirement and no

notice provisions.” Fitzgerald v. Barnstable Sch.

Comm., 555 U.S. 246, 255 (2009). Those omissions are

significant because Congress permitted a suit against

an employer under Title VII only following “an

opportunity for nonjudicial and nonadversary

resolution of claims.” Novotny, 442 U.S. at 372-73. As

this Court has explained, “Congress intended

cooperation and conciliation to be the preferred means

of enforcing Title VII,” and “[c]ritical to the

compliance scheme is the Commission’s role in

settling Title VII disputes through conference,

conciliation, and persuasion before a Title VII plaintiff

or the Commission may bring suit.” W.R. Grace & Co.

12

v. Loc. 759, Int’l Union of United Rubber, 461 U.S.

757, 770-71 (1983). Petitioners’ proposed cause of

action under Title IX would sidestep all of that.

An implied Title IX employment-discrimination

claim also would lack Title VII’s limitations period,

damages cap, and small-employer exception. These

limits, along with the exhaustion requirement, are not

paper tigers. For example, courts regularly dismiss

Title VII claims on failure-to-exhaust grounds. E.g.,

Handlon v. Rite Aid Servs., LLC, 513 F. App’x 523,

528 (6th Cir. 2013); Kopko v. Lehigh Valley Health

Network, 776 F. App’x 768, 775 (3d Cir. 2019). Even

absent dismissal, the process can “amplify, clarify, or

more clearly focus” the dispute by limiting it to that

“which can reasonably be expected to grow out of the

charge.” Gregory v. Ga. Dep’t of Hum. Res., 355 F.3d

1277, 1279-80 (11th Cir. 2004) (per curiam). As for the

limitations period, this Court has long held “that the

statute precludes recovery for discrete acts of

discrimination or retaliation that occur outside the

statutory time period.” Nat’l R.R. Passenger Corp. v.

Morgan, 536 U.S. 101, 105 (2002).

Offering millions of employees a parallel

employment-discrimination

regime

without

Title VII’s restrictions “would disrupt a carefully

balanced remedial scheme” without any obvious

benefit. Lakoski v. James, 66 F.3d 751, 754 (5th Cir.

1995). It would also force companies to price expanded

litigation into their cost of doing business, which will

be reflected in higher costs to their consumers, lower

wages to their employees, less capital for innovation,

or some combination of the three. See Stoneridge, 552

13

U.S. at 163-64 (explaining that expanding an implied

cause of action would “allow plaintiffs with weak

claims to extort settlements from innocent

companies,” thus “rais[ing] the costs of doing

business”); Cannon v. Univ. of Chi., 441 U.S. 677, 747

(1979) (Powell, J., dissenting) (explaining that

judicially implying a Title IX cause of action will

result in the “burden of expensive, vexatious

litigation”).6 While employers would face a maximum

of $300,000 for most compensatory damages for a

Title VII employment-discrimination claim, see

42 U.S.C. § 1981a(b)(3)(D), they would have to price

for potentially endless liability under petitioners’

implied Title IX claim. What’s worse, small employers

will likely face the brunt of such costs.7 Not only did

Congress exempt employers with less than 15

employees from Title VII liability altogether,

42 U.S.C. § 2000e(b), it capped most compensatory

damages for businesses with 15 to 100 employees at

only $50,000, id. § 1981a(b)(3)(A).

The Court has previously considered “practical

consequences” as a “reason to reject” the “expansion”

of an implied right of action. Stoneridge, 552 U.S. at

6 U.S. Chamber of Commerce Institute for Legal Reform, IllSuited: Private Rights of Action and Privacy Claims 14 (July

2019), https://tinyurl.com/24fnawz8 (implying rights of action

often “hinder[s] innovation and consumer choice by threatening

companies with frivolous, excessive, and expensive litigation”).

7 See U.S. Chamber of Commerce Institute for Legal Reform,

The U.S. Lawsuit System Costs America’s Small Businesses $160

Billion (Jan. 4, 2024), https://tinyurl.com/47nnwzke.

14

163-64 (citing Va. Bankshares, Inc. v. Sandberg, 501

U.S. 1083, 1104-05 (1991); Blue Chip Stamps v.

Manor Drug Stores, 421 U.S. 723, 737 (1975)). There

are ample reasons to do the same here.

II.

TITLE IX DOES NOT CREATE AN

IMPLIED PRIVATE RIGHT OF ACTION

FOR EMPLOYMENT DISCRIMINATION

Even setting aside the many adverse consequences

that could result from implying the cause of action

petitioners seek, this Court should not do so for an

elementary reason: Congress did not create one.

Indeed, one would scour Title IX in vain for any

language concerning employment discrimination

whatsoever, let alone creating a cause of action to

remedy it. That makes sense. As outlined above,

Title VII already creates the cause of action

petitioners seek, but meticulously limits its scope.

Discontent with those limits created by Congress,

petitioners ask this Court to create a private right of

action under Title IX by extending outmoded

precedent. But such an extension would violate the

separation of powers and cannot be squared with this

Court’s rigorous test for implying a cause of action.

A.

Under The Separation Of Powers,

Only Congress Can Create Private

Rights Of Action

The Constitution vests the legislative power in

Congress. U.S. Const. art. I. That power includes

authority both to create federal law and to decide “who

may sue to enforce” it. Saba, 146 S. Ct. at 1552. By

contrast, the Constitution vests courts with judicial

15

power. U.S. Const. art. III. That power includes

authority to “interpret” statutes, but not to

“augment[]” them. Saba, 146 S. Ct. at 1553. And

“creating a cause of action is a legislative endeavor,”

not a judicial one. Egbert, 596 U.S. at 491.

That allocation of authority makes sense because

authorizing a private party to enforce a “statutory

right poses delicate questions of public policy.”

Medina v. Planned Parenthood S. Atl., 606 U.S. 357,

369 (2025). And as between branches, “Congress is

better positioned than courts to evaluate th[os]e policy

tradeoffs.” Cisco, 146 S. Ct. at 1891; see Medina, 606

U.S. at 369 (“The job of resolving how best to weigh

those competing costs and benefits belongs to the

people’s elected representatives, not unelected judges

charged with applying the law as they find it.”).

Despite that seeming clarity, “there was a time in

the mid-20th century when ‘the Court assumed it to

be a proper judicial function to provide’ whatever

‘remedies’ it deemed ‘necessary to make effective a

statute’s purpose.’” Medina, 606 U.S. at 368 (quoting

Ziglar v. Abbasi, 582 U.S. 120, 131-32 (2017)). Those

were the “bad old days.” Transcript of Oral Argument

at 45:11, CBOCS West, Inc. v. Humphries, 553 U.S.

442 (2008) (No. 06-1431) (Scalia, J.). The Court has

“since rejected the practice of fashioning rights of

action as [it] see[s] fit.” Saba, 146 S. Ct. at 1553.

Instead, the Court “interpret[s] the statute” to

determine if Congress created a cause of action.

Alexander v. Sandoval, 532 U.S. 275, 286 (2001).

When a statute lacks an express cause of action,

the Court exercises extreme “caution.” Hernandez v.

16

Mesa, 589 U.S. 93, 101 (2020). To “create a federal

right,” the statute must use “clear and unambiguous

terms.” Gonzaga Univ. v. Doe, 536 U.S. 273, 283, 290

(2002). And it must “manifest[] an intent ‘to create not

just a private right but also a private remedy.’” Id. at

284 (quoting Sandoval, 532 U.S. at 286). Put simply,

“a private right of action” must be “unambiguously

conferred”—a high bar to meet. Armstrong v.

Exceptional Child Ctr., Inc., 575 U.S. 320, 332 (2015)

(plurality).

When courts imply a cause of action based on a

statute’s purpose, they “usurp[] Congress’s role.”

Medina, 606 U.S. at 383. That is because “no statute

pursues any single ‘purpos[e] at all costs.’” Id. at 368

(citation omitted). Rather, legislation “involves

balancing interests and often demands compromise.”

Hernandez, 589 U.S. at 100. Sometimes Congress

“may not wish to pursue the provision’s purpose to the

extent of authorizing private suits for damages.” Id.

Implying a private right of action thus “upset[s] the

careful balance of interests struck by” Congress,

Nestle USA, Inc. v. Doe, 593 U.S. 628, 637 (2021)

(plurality), which is the Branch constitutionally

empowered and “better positioned … to evaluate the

policy tradeoffs of creating liability,” Cisco, 146 S. Ct.

at 1891.

Implying private rights of action also interferes

with the Executive Branch’s enforcement of the law.

Rather than empower private claimants, Congress

often vests agencies with sole enforcement power to

“achiev[e] ‘the expertise, uniformity, widespread

consultation, and resulting administrative guidance

17

that can accompany agency decisionmaking.’”

Armstrong, 575 U.S. at 328-29 (quoting Gonzaga, 536

U.S. at 292 (Breyer, J., concurring in judgment)).

These agencies are politically accountable and serve

on the public’s behalf. See Trump v. Slaughter, 146

S. Ct. 2283, 2310 (2026). Judicially implying a private

cause of action, however, permits unaccountable

“plaintiffs’ lawyers to set policy nationwide,” often

based on personal, not public, interest. Ill-Suited,

supra, at 13; see also Alden v. Maine, 527 U.S. 706,

755-56 (1999) (“A suit which is commenced and

prosecuted … in the name of the United States

… differs in kind from the suit of an individual,” as

“[s]uits brought by the United States itself require the

exercise of political responsibility[,] a control which is

absent from a broad delegation to private persons[.]”).

Private enforcement also “risk[s]” creating a

patchwork “of inconsistent interpretations,” as well as

“misincentives”

because

of

“inappropriate

application[s] of the statute.” Armstrong, 575 U.S. at

328-29. Business growth and investment are harmed

in the process.

The same separation-of-powers concerns that

weigh against judicially implying a cause of action in

the first place further “caution against its expansion.”

Stoneridge, 552 U.S. at 165. The “decision to extend”

an existing implied cause of action—just like the

decision to create one—“is for Congress, not for” the

Judiciary. Id. Thus, “the breadth of the right once

recognized should not, as a general matter, grow

beyond the scope congressionally intended.” Va.

Bankshares, 501 U.S. at 1102; see Cummings, 596

18

U.S. at 230-31 (Kavanaugh, J., concurring) (“[W]ith

respect to existing implied causes of action, Congress,

not this Court, should extend those implied causes of

action and expand available remedies.”).

The Court’s treatment of Section 10(b) of the

Securities Exchange Act is instructive. Although the

Court initially recognized an implied cause of action

under that section, see Superintendent of Ins. of N.Y.

v. Bankers Life & Cas. Co., 404 U.S. 6, 13 n.9 (1971),

it has repeatedly declined to expand that cause of

action despite numerous requests from plaintiffs to do

so. For example, the Court refused to “extend” the

“implied § 10(b) action” to “aiders and abettors when

none of the express causes of action in the securities

Acts included that liability.” Stoneridge, 552 U.S. at

157 (citing Cent. Bank of Denver, N.A. v. First

Interstate Bank of Denver, N.A., 511 U.S. 164, 180

(1994)). And the Court has also strictly applied the

implied Section 10(b) action’s reliance requirement to

maintain “the narrow dimensions [it] must give to a

right of action Congress did not authorize.” Id. at 16667. As another example, the Court has refused to

“expand liability beyond the person or entity that

ultimately has authority over a false statement” to

ensure “the narrow scope that [it] must give [this]

implied private right of action.” Janus Cap. Grp., Inc.

v. First Derivative Traders, 564 U.S. 135, 144 (2011).

So too with the right of action implied in Bivens v.

Six Unknown Federal Narcotics Agents, 403 U.S. 388

(1971). In Bivens, the Court “recognized an implied

cause of action for damages against federal officers for

certain alleged violations of the Fourth Amendment.”

19

Goldey v. Fields, 606 U.S. 942, 942 (2025) (per

curiam). Shortly thereafter, the Court implied a

Bivens cause of action in “two additional contexts.” Id.

But since 1980, the Court has “declined more than 10

times to extend Bivens to cover other constitutional

violations.” Id. For example, although the Court once

supplied a Bivens cause of action for an Eighth

Amendment claim of deliberate indifference against

prison officials, see Carlson v. Green, 446 U.S. 14, 16

& n.1, 19 (1980), it has since declined to “extend[]

Bivens to allow an Eighth Amendment claim for

excessive force” against prison officials, Goldey, 606

U.S. at 944. And the Court recently refused to

“extend[]” Bivens to permit a Fourth Amendment

claim involving “allegations of excessive force

… ‘almost parallel’” to those in Bivens itself. Egbert,

596 U.S. at 495 (citation omitted).

B.

Title IX’s Text, Structure, And

Context Do Not Create A Private

Cause Of Action For Employment

Discrimination

Title IX provides: “No person in the United States

shall, on the basis of sex, be excluded from

participation in, be denied the benefits of, or be

subjected to discrimination under any education

program or activity receiving Federal financial

assistance.” 20 U.S.C. § 1681(a). Nothing about

Title IX’s text, structure, or surrounding context

20

evinces any intent whatsoever to create a private

right of action for employment discrimination.8

As a threshold matter, Title IX’s language does not

provide a clear and unambiguous right for employees.

To create a federal right, the “statute must display ‘an

unmistakable focus’ on individuals like the plaintiff,”

Medina, 606 U.S. at 368, and “aim[] at protecting ‘a

particular class of persons,’” Saba, 146 S. Ct. at 1553

(citation omitted). This “‘stringent’ and ‘demanding’

test” is “rare[ly]” satisfied. Medina, 606 U.S. at 368.

And it is not satisfied here. Title IX nowhere mentions

employees or employment, let alone displays “an

unmistakable focus” on employees. Id.

Even if Title IX included an antidiscrimination

right for employees (it does not), recognizing a private

cause of action would be permissible only if the statute

also separately provided “a private remedy” for

employees to vindicate that right. Gonzaga, 536 U.S.

at 284. It plainly does not. Indeed, this Court has

repeatedly recognized that Title IX contains “no

legislative expression of the scope of available

remedies.” Gebser, 524 U.S. at 283-84; see Barnes v.

Gorman, 536 U.S. 181, 187 (2002) (noting that

“Title IX” “mentions no remedies”); Cummings, 596

U.S. at 220 (Title IX is “silent as to available

remedies.”). That “silence is enough to settle the

issue.” Cisco, 146 S. Ct. at 1893; see also Sandoval,

532 U.S. at 293 n.8 (“‘[A]ffirmative’ evidence of

congressional intent must be provided for an implied

8 The Court can reach this result without recourse to the

Spending Clause. See Sandoval, 532 U.S. at 293.

21

remedy, not against it, for without such intent, ‘the

essential predicate for implication of a private remedy

simply does not exist.’” (citation omitted)).

Title IX’s structure also forecloses implying a

private remedy for employees. When a statute

expressly provides one method of enforcement, it

“suggests that Congress intended to preclude others.”

Sandoval, 532 U.S. at 290. Here, Congress included

“only [one] express enforcement mechanism” for

Title IX: “an administrative procedure resulting in the

withdrawal of federal funding from institutions that

are not in compliance.” Fitzgerald, 555 U.S. at 255; see

20 U.S.C. § 1682. This enforcement mechanism has

“teeth.” Medina, 606 U.S. at 384. And by spelling it

out, Congress removed any plausible inference that it

“absentmindedly forgot to mention an intended

private action.” Transamerica Mortg. Advisors, Inc.

(TAMA) v. Lewis, 444 U.S. 11, 20 (1979).

The broader statutory context confirms why no

private cause of action should be implied in Title IX

for employment discrimination: Three months before

Title IX’s passage, Congress extended Title VII to

cover education. See Equal Employment Opportunity

Act, Pub. L. No. 92-261, §§ 2-3, 86 Stat. 103-104 (Mar.

24, 1972). Yet Title VII has both an express cause of

action and authorizes money damages. Gebser, 524

U.S. at 283. “Obviously, then, when Congress wished

to provide a private damages remedy” for employment

discrimination

based

on

sex—including

in

education—“it knew how to do so and did so

expressly.” TAMA, 444 U.S. at 21.

22

Not only is implying a Title IX claim for

employment discrimination unsupported by the text,

it would also circumvent Title VII’s carefully crafted

enforcement scheme. As explained above, a Title VII

claim has limits created by Congress, including an

exhaustion requirement, a limitations period, a

damages cap, and a small-employer exception. See

supra I.C. Not so for Title IX. The absence of these

limits is easily explained by the fact that Title IX was

never meant to facilitate employment-discrimination

claims. Implying a private remedy for employment

discrimination under Title IX would “‘circumvent[]’”

Title VII’s “presuit procedures” and give “‘plaintiffs

access to tangible benefits’ … ‘unavailable under’”

Title VII. Health & Hosp. Corp. of Marion Cnty. v.

Talevski, 599 U.S. 166, 189 (2023) (citation omitted);

see also Fernandez v. United States, 146 S. Ct. 1292,

1301-02 (2026) (foreclosing relief that “circumvents

the exacting requirements” of another statutory

scheme, including its “time limit[s]”). And it would

expose small employers to liability for employment

discrimination that Congress did not want them to

face. Surely Congress did not intend Title IX to

implicitly erase its reticulated employmentdiscrimination rules in the education sector—three

months after extending Title VII there.

C.

Petitioners Provide No Grounds To

Justify An Implied Title IX Cause Of

Action

For

Employment

Discrimination

Without statutory text or context on their side,

petitioners point to precedent and Title IX’s

23

abrogation of state sovereign immunity. Neither

supports their desired implied cause of action.

1. To justify their expansion of a Title IX implied

cause of action, petitioners rely heavily on Cannon

and a few other decisions allowing private claims to

proceed under Title IX. To start, however, “[t]he Court

has retreated from Cannon’s reasoning, which

‘exemplified’ an ‘expansive rights-creating approach’

that later decisions ‘abandoned.’” Medina, 606 U.S. at

369 n.1 (citation omitted). Indeed, “the decision’s

‘language’ no longer controls”; only its “holding”

remains. Id. (citation omitted).

Petitioners also overstate Cannon’s surviving

holding and seek to extend it to a new context.

Petitioners mistakenly claim that Cannon offered a

cause of action to “all ‘private victims of

discrimination’” in the education context by relying on

generic language in that opinion. Pet.Br.23 (quoting

Cannon, 441 U.S. at 709). But this Court does not

“parse[]” its prior opinions “as though [it] were dealing

with a statute.” Nat’l Pork Producers Council v. Ross,

598 U.S. 356, 373 (2023) (citation omitted). To the

contrary, “general expressions, in every opinion, are

to be taken in connection with the case in which those

expressions are used.” Cohens v. Virginia, 19 U.S. 264,

399 (1821); see Int’l Bhd. of Teamsters v. Hanke, 339

U.S. 470, 480 n.6 (1950) (explaining that the Court

has a “duty to restrict general expressions in opinions

in earlier cases to their specific context”).

Nor is the Court shackled by the interpretive

methodology applied in Cannon. As “a doctrine of

preservation, not transformation,” stare decisis

24

“counsels deference to past mistakes, but provides no

justification for making new ones.” Citizens United v.

FEC, 558 U.S. 310, 384 (2010) (Roberts, C.J.,

concurring). Precedential force attaches to the

“specific” result reached in a prior case, not to the

obsolete “interpretive methodology” used in getting

there. Loper Bright Enters. v. Raimondo, 603 U.S.

369, 412 (2024); see Amy Coney Barrett, Originalism

and Stare Decisis, 92 Notre Dame L. Rev. 1921, 1939

(2017) (“[T]here is a difference between leaving the

result of precedent in place … and accepting its

decisional theory as governing new contexts.”). Thus,

Cannon’s “narrow holding about the meaning of the

[statute] at issue in that case may be entitled to stare

decisis effect,” but its “interpretive methods” lack “the

full force of horizontal stare decisis.” Kisor v. Wilkie,

588 U.S. 558, 624-25 (2019) (Gorsuch, J., concurring

in judgment).

Applying those principles, Cannon’s holding must

be limited to the “specific context” in which this Court

implied a cause of action. Teamsters, 339 U.S. at 480.

In Cannon, the Court considered a Title IX suit

brought by a prospective student and simply

“concluded that petitioner may maintain her lawsuit.”

441 U.S. at 717. Cannon thus recognized a cause of

action for students facing discrimination; it did not

analyze whether there is an implied discrimination

claim for all comers, as petitioners suggest. See

Sandoval, 532 U.S. at 282 (reading Cannon narrowly

because it “had no occasion to consider” an issue

raised years later).

25

Petitioners also invoke North Haven Board of

Education v. Bell, 456 U.S. 512 (1982). But North

Haven merely upheld regulations that purported to

apply Title IX to employees. The Court held only that

“the statutory language … seems to favor inclusion of

employees,” but “does not expressly include or exclude

employees from its scope.” Id. at 522 (emphasis

added). Faced with that ambiguity, the Court

“turn[ed] to the Act’s legislative history” and

“postenactment history” to uphold the challenged

regulations. Id. at 522-36. Yet a “court charged with

asking whether Congress has spoken clearly has its

answer long before it might have reason to consult the

Congressional Record.” Dep’t of Agric. Rural Dev.

Rural Hous. Serv. v. Kirtz, 601 U.S. 42, 49 (2024).

North Haven thus confirms that employees have no

clear and unambiguous right under Title IX, defeating

an implied cause of action.

Even if North Haven can be overread to hold that

employees clearly have a private right under Title IX,

it never considered whether employees have a private

remedy. That case did not involve a private Title IX

suit by employees against their employers, as here.

Rather, it involved consolidated suits by “public school

boards” challenging Title IX regulations that

“reach[ed] the employment practices of educational

institutions.” N. Haven, 456 U.S. at 517. North Haven

therefore concerned only Title IX’s substantive reach,

not its private remedies. And “even where a statute is

phrased in [] explicit rights-creating terms, a plaintiff

suing under an implied right of action still must show

that the statute manifests an intent ‘to create not just

26

a private right but also a private remedy.’” Gonzaga,

536 U.S. at 284 (quoting Sandoval, 532 U.S. at 286).

Petitioners likewise read Jackson for more than it

is worth. The Court in Jackson only “consider[ed]

… whether the private right of action implied by

Title IX encompasses claims of retaliation” and held

that it does. 544 U.S. at 171; see also id. at 178. It did

not consider whether employees have a general

Title IX discrimination claim. In fact, Jackson kept its

focus on students facing discrimination, as in Cannon.

The Court emphasized that its implied right for

employees facing retaliation was meant “to vindicate

the rights of their students.” Id. at 181. The

discrimination there was “on the basis of sex” only

because students were discriminated against based on

their sex. Id. at 179-80. The narrow context in which

Jackson implied a cause of action is thus limited to

situations where students face sex discrimination.

2. Petitioners also rely on the post-Cannon

abrogation of sovereign immunity for Title IX

violations, but that says nothing to support an implied

cause of action. This provision says that “State[s] shall

not be immune under the Eleventh Amendment …

from suit in Federal court for a violation of … title IX.”

42 U.S.C. § 2000d-7(a)(1). It then reiterates that in

“suit[s] against a State for a violation” of Title IX,

“remedies … are available for such a violation to the

same extent as such remedies are available for such a

violation in the suit against any public or private

entity other than a State.” Id. § 2000d-7(a)(2).

Textually, this provision creates no cause of action.

It merely abrogates state sovereign immunity. At

27

most, this provision “presupposes that parties are

already before the court and directs the court’s use of

its remedial authority.” Saba, 146 S. Ct. at 1554. “It

says nothing about conferring a right to sue in the first

place.” Id. at 1555-56. And even after this provision’s

adoption, the Court has explained that “Title IX

… mentions no remedies.” Barnes, 536 U.S. at 187.9

There is no reason to read a private cause of action for

employment discrimination into Title IX that

Congress did not create.

*

*

*

This case demonstrates why this Court has gotten

out of the business of implying causes of action. What

begins as one drink at the well (Cannon), becomes

another (Jackson), and creates the temptation for yet

another one. In statutory and constitutional cases

alike, the Court has reaffirmed its commitment to the

idea that “creating a cause of action is a legislative

endeavor” in which “Congress is far more competent

than the Judiciary.” Egbert, 596 U.S. at 491; see also

Medina, 606 U.S. at 369 (“The job of resolving how

best to weigh those competing costs and benefits

belongs to the people’s elected representatives.”). Just

last Term, the Court “rejected the practice of

fashioning rights of action as [it] see[s] fit,” Saba, 146

S. Ct. at 1553, and reiterated its “firm[] commit[ment]

9 Even if this provision created a Title IX right of action, the

scope of that right is limited to “Cannon’s ‘holdin[g].’” Medina,

606 U.S. at 369 n.1 (citation omitted). So it would (at most)

recognize a right of action for students, not employees.

28

to the view that judicially created causes of action

offend the separation of powers in almost every

circumstance,” Cisco, 146 S. Ct. at 1891. There is no

reason to retreat from that commitment now. The

Court should not imply a cause of action in Title IX for

employment discrimination.

CONCLUSION

This Court should affirm the judgment below.

Respectfully submitted,

JENNIFER B. DICKEY

JORDAN L. VON BOKERN

U.S. CHAMBER LITIGATION

CENTER

1615 H Street, N.W.

Washington, D.C. 20062

CHRISTOPHER G. MICHEL

Counsel of Record

CAROLINE STEPHENS MILNER

KIRKLAND & ELLIS LLP

1301 Pennsylvania Ave., N.W.

Washington, D.C. 20004

(202) 389-5000

christopher.michel@kirkland.com

SETH SMITHERMAN

DAVID HUTCHISON

KIRKLAND & ELLIS LLP

401 West 4th Street, Ste. 4000

Austin, TX 78701

Counsel for Amicus Curiae

August 24, 2026