Amicus Brief — Cannon v. University of Chicago

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In the Supreme

CHAM RODAK, JR., OLERK

OF THE

United States

Octoper Tram, 1978

No. 77-026

GeraLpines G. Cannon,

Petitioner,

vs.

Tae Universrry or Curcaco, et al.,

Respondents.

GERALDINE G. Cannon,

Women’s Rights Project weet

Law & Social Aid Society of Sen Mateo

Sate | ee

Attorneys ie penta

BOWNE-PERNAU WALSH ¢ 1048 SANSOME ST. © 6.%.,CA @4111 © (ate) 90). 7888 to

ns | af

al aaa

Pages

ESS Rey PP rr Tee ee 1

Ss be bile oa its ues ines depws aes 2

AG ee, ee ea a ok eel eae seems 9

I Section 901 of the act directly creates personal rights

which federal courts may enforce ..... lee ed kiana )

1. The personal rights language of $901 ............. 10

2. Guarantee of personal rights as the payee page

I erat occurs gs oxalate cd ph Aeied bakes

3. Judicial enforcement of personal rights ............ 21

Il The availability of an administrative fund termination

mechanism under § 902 of Title IX does not detract from

the personal rights created by § 901, or from the avail-

ability of judicial enforcement of those rights........... 23

1. Comparison of §§ 901 and 902.................... 24

2. Congressional Intent on the role of §902........... 29

III The Court of Appeals misconstrued and misapplied this

court's precedents on the availability of private judicial

EG he cbS ase FRR DOVE eae techas bensee ccesek 38

a aera . &

i eos, ee. ok ad euisgmn wines Rae 42

hd nk beunp one shgs saber 47

I oc, 655 ds pete cll edo lees cenevwnt osee 51

TABLE OF AUTHORITIES

Cases

Adams v. Califano, Civ. Action No. 70-395 (D.D.C. 46

Albemarle Paper Co. v. Moody, 422 U.S.405(1975) ....

Allen v. State Board of Elections, 393 U.S. 544 (1969) ...._.—s 8, 21, 39, 45,

: , 48, 49, 50,

Alvarado v. El Paso nop School Dist., 445 F.2d 1011 (5th

Cir. 1971) Shs ¢ RGU STROMEUS Ga he kde eo Ree OCR I 30

Bell v. Hood, 327 U.S. 678 (1946) : | 22

Bivens v. Six Unknown Named Agents, 403 U.S. 388 (1971). _ 21, 22, 44, 45

Blue Chip Stamps v. Manor Drug Stores, 421 U.S. 723 (1975)

Bossier Parish School Bd. v. Lemon, 370 F.2d 847 (5th Cir.

1967), cert. den., 388 U.S. 911 (1967) ) 30

TABLE OF AUTHORITIES

CASES

Pages

Calhoon v. Harvey, 379 U.S. 134 (1964) ................... 49, 50, 51

8, 39, 47, 48,

Cannon v. University of Chicago, 559 F.2d 1063 (7th Cir.

1976, 1977) 2A, 39, 44

Chapman v. Houston Welfare Rights Org. 555 F.2d 1219 ( 5th

Cir. 1977), cert. granted, ... US. , 46 U.S.L.W. 3526

(1978 LR Te ASR oan eee es ee 32

City of Los Ang seles, Dept. ‘of Water v. Manhart, ... U.S. ..,

46 USL.W. 4349 (1978) ey nee

Cort v. Ash, 422 U.S. 66 (1975) ep Ae 7, 39, 40, 41

42, 43, 44, 45

46, 47, 48, 49

Craig v. Boren, 429 U.S. 190 (1977) . ae

Deckert v. Independence Shares oe: 311 U.S. 282 ( 1940) 22

De la Cruz v. Tormey, F.2d . (9th Cir., octet 13, my 33

Dothard v. Rawlinson, 433 U.S. 321 (1977) . 20

Fitzpatrick v. Bitzer, 427 U.S. 445 (1976) ... 13

Franks v, Bowman Trans. Co., 424 U.S. 747 ( 1976) . 26

Frontiero v. Richardson, 411 U.S. 677 (1973) 15

Gautreaux v. Chicago Housing Authority, 265 F. me 582

(N.D. Ill. 1967) . 30

Griggs v. Duke Power Co., 401 U.S. 494 (1971) | 20

Heart of Atlanta Motel, Inc. v. United States, 379 U.S. 2A] -

ERS ob uics oi NL dad aah Oee ede ans she's Senes 643

Helvering v. Davis, 301 U.S. 619 ‘to76) 13

Hills v. Gautreaux, 425 U.S. 284 (1976) ................... 26

J. I. Case Co. v. Borak, 377 U.S. 426 (1964) ..... 25, 42, 45

Johnson v. Railway Express Agency, 421 U.S. 454 (1975) | 4,11, 29

Jones v. Alfred H. Mayer Co., 392 U.S. 409 (1968) . 4, 21, 22

Katzenbach v. McClung, 379 U.S. 294 (1964) | 13

Katzenbach v. Morgan, 384 U.S. 641 (1966) ............... 13

King v. Smith, 302 U.S. 309 (1968) ....................... 13

Lau v. Nichols, 414 U.S. 563 (1974) __.. 32

Lewis v. Martin, 397 U.S. 552 (1970) .. 25

Marbury v. Madison, 5 U.S. (1 Cranch) 137 (1803) 21

McDonald v. Santa Fe Trail Trans. Co., 427 U.S. 273 (1976) ll

Miree v. DeKalb County, 433 U.S. 255 (1977) 32

iii

TABLE OF AUTHORITIES

Cases

Page

Mitchell v. Robert DeMario Jewelry, Ine., 361 U.S. 288 (1960)

National Railroad Passenger Corp. v. National Ass’n of Rail-

road Passengers, 414 U.S, 453 (1974) ...................

Piper v. Chris Craft Industries, Inc., 130 U.S. 1 (1977) .......

Porter v. Warner Holding Co., 328 U.S. 395 er

Roos v. Root, 466 OB. TE ARITA)... occ cle ductvenvcces

Regents of University of California v. Bakke, ... U.S. _., 46

EE RN ay eet, | Herr

ony County Bd. of Ed., 282 F.Supp. 192 (E.D. Tenn.

Rosado v. Wyman, 397 U.S. 397 (1970) ...................

Runyon v. McCrary, 427 U.S. 160 (1976) ..................

Santa Fe Industries, Inc. v. Green, 430 U.S. 462 (1977) .....

— Investor Protection Corp. v. Barbour, 421 U.S. 412

RET SRS TS RS Foe ee

Shelley v. Kraemer, 334 U.S. 22 NN LS eet a a a

Southern Christian Leadership Conf. v. Connolly, 331 F. Supp.

940 (E.D. Mich. 1971)

Steward Machine Co. v. Davis, 301 U.S. 548 (1937) .

Sullivan v. Little Hunting Park, Inc., 396 U.S. 229 (1969)

Swann v. Charlotte-Mecklenberg Bd. of Ed. 402 US. 1

(1971)

Texas & P. C. Co. v. Rigsby, 241 U.S. 33 (1915) .__..

ir ‘y Wheaton-Haven Recreation Assn., 410 U.S. 431

1973 Oe IE Pe ee a ee ee

T.LM.E., Inc. v. United States, 359 U.S. 464 (1959)

Weinberger v. Wiesenfeld, 420 U.S. 636 (1975) .

Wheedlin v. Wheeler, 373 U.S. 647 (3005) .........

Womens Equity Action League v. Mathews, Civ. Action No.

J. _ ) GARR ry Sake) a eee eee

Attorney's Fees Act of 1976, 42 U.S.C. Section 1988 .........

Bilingual Education Act of 1968, 20 U.S.C. Section 880b et seq.

Civil Rights Act of 1964:

Title II, 42 U.S.C. Section 2000a et seq. Pi tees

Title II, 42 U.S.C. Section 2000a-3(a) ............ ee

Title II, 42 U.S.C. Section 2000a-3(c) ...............000..

7, 39, 40, 41,

22, 25, 42

10, 12, 19, 26,

33, 34, 46

7, 39, 40, 41,

21, 22

TABLE OF AUTHORITIES

Title I, 42 U.S.C. Section 2000a-6(b) ....................

Title VI, 42 U.S.C. Section 2000d et seq. ee en ae ee

SiC Ce ho. he re cs elas ceuen hues

ER ok eke Oe ee eee ben eae ete a ieee ees

EE Be ne ee ee ee ee ee

Title VII, 42 U.S.C. Section 2000e et seq. .................

Section 703(a)(1), 42 U.S.C. Section 2000e-2(a)(1) .....

Section 706(f) (1), 42 U.S.C. Section 2000e-5(f)(1) .

Education Act of 1964:

Title I, 20 U.S.C. 241a et seq.

Education Act of 1965:

Title II, 20 U.S.C. 331 et seq.

yp EE eee eT rer

po ME ee

Education Amendments of 1972 .... . 2 OY a Se, GL eM SIRE

Title IV, 20 U.S.C. Section 24letseq. .......... ee

Title V, 90 U.S.C. Section 887d ......... 0... cece cece be.

Title VII, 20 U.S.C. Sections 900 et seq. and 1601 et seq.

Section 11, 20 U.S.C. Section 1617

Title IX, 20 U.S.C. Section 1681 et seq. Nate Spee ne

Section 901 ..... ET Go ic 2 aa Rp RN erie MG,

RES EEE it ee tO pene Se er ee

CAT. ca cade ae Gaur ee ebenal Kacerrinn ceed

Higher Education Act of 1965, as amended, 20 U.S.C. Sec-

OEE Orr ro ee rey ee are

International Education Act of 1966, 20 U.S.C. Section 1171 ..

Labor Management Reporting and Disclosure Act of 1959:

29 U.S.C. Section 401 et seq. ...

on ss win nccc esubuchbisucaneens

Legal Services Corporation Act:

42 U.S.C. Section 2996 et FSO on yp ne Sms

42 U.S.C. Section 2996d(e) 1) Pope

42 U.S.C. Section 2996e(a)(3)(B) . Tetance cu

Legislative Reorganization Act of 1947 . ene eee thea

National Defense Education “> of 1958, as amended, 20

U.S.C. Section 401 et seq.

Vocational Education Act of 1963, as amended, Former 20

U.S.C. Sections 1241 et seq. and 1301 et seq. |

Voting Rights Act of 1965 . .

42 U.S.C. Section 1973¢

6, 11, 30, 32

passim

assim

, 10, 14, 19,

20, 21

passim

“TABLE OF AUTHORITIES

Pages

Pub. Law 93-568, Section 3(a), Dec. 31, 1974, 88 Stat. 1862 . 10

Pub. Law 94-482, Title IV, Section 412(a), Oct. 12, 1976,

|) 8 Se re CPT ese le 10

15 U.S.C. Section TOsee(G)(S) wc ccc ccc cccecees 40

Tes om och baihsw cdkin ene al en 42

i oe awk keen 40

28 U.S.C. Section 1331 ............ et ae ets bes al wee a 21

Sp IN IG hose PO sctraindecdiwes cnececevcs 21

Gs NOI 6 nce vs vdwwaewnsn’s cae dss 50

IS 06202, bs) dn cane dewiiend evade ou ll

ey oe eras Sac vebs ebeGUs be VONe bivbe dd ll

recline cies caeurreiaee elec 6

ee dad in kcdueiebbcoeseenebeenct 42

on ea ai as sell bw waess Khe bcedseecw’ 40

deo ick cen acs da abcsuvcadccenns 42

ee oes ig veins ccveesieeteeds 42

Rules and Regulations

Rules of the Supreme Court of the United States:

SERGE SE IE So ina Se i re 2

Securities Exchange Commission Rule 106-5:

phe BE! eee 42

a ae laos Ci cle kata 25

Se I ico eicvccswtecnvedesccbiseeees 32

45 C.F.R. Section 88.91(04¢3) RETA | (uke aki bel ee a 20

oe eR EE | ee ree 20

IE irnrerosins oconcccdcdkaadedeueseees 25

Constitutions

United States Constitution:

ne oa aa a win. bb Stine eacis . 3,11, 28

CoE UR eee ee a eae wk iden nears 13

Legislative Material

gs eae waht Sa aw beet cp iaed ves eass 28, 34

EE See eee CU

117 Cong. Rec. (1971) pees chan eetyrectensteueeernchss Qian

18, 19, 31

118 Cong. Rec. (1972) ...... 3, 4 16, 17,

TABLE OF AUTHORITIES

Pages

PPT TTT T eT Cre RC TE TEE TET EEE T ee 31

H.R. Rep. No. 914, 88th Cong., 2nd Sess. (1964) .. ees ee

H.R. Rep. No. 91-1580, 91st Cong., Ist Sess. (1970) .......... 40

H.R. Rep. No. 92-554, 92nd Cong., Ist Sess. (1972) Soren.

S. Rep. No. 92-604, 92nd Cong., 2nd Sess. ( 1972) : a ae

H.R. 7152, 88th Cong., 2nd Sess. (1964) .................... 35

Miscellaneous Other Authorities

Ra yer s et Tee Eee T eee 15

United States Commission on Civil Rights, A Guide to Fed-

eral Laws and Regulations Prohibiting Sex Discrimination

(Clearing House Publication No. 46, july, 1976 (revised ) )

In the Supreme Court

United States

Octoser Term, 1978

No. 77-026

GERALDINE G. Cannon,

Petttioner,

vs.

Tse Untversity or Cx1caco, et al.,

Respondents.

GERALDINE G. Cannon,

Petitioner,

vs.

NORTHWESTERN UNIVERsITY, et al.,

Respondents.

Federation of Organizations for Professional Women, League of Center {or Law and

Women Voters of the United States, NetiowatEdweetion-Lew-Gemter, ca. cation. inc.

National Conference of Puerto Rican Women, National nization for

Women Legal Defense and Education Fund, National ’s

Political Caucus, Organization of Pan Asian American Women,

Rural American Women, for Women in Society,

Women’s Equity Action League, "s Equity Action

Educational and Lega! Defense Fund, American Civil Liberties Union,

and Women’s Legal Defense Fund

INTEREST OF AMICI CURIAE

This brief is filed on behalf of the Federation of

Organizations for Professional Women, League of Women

Voters of the United States, ee ten and

, National Conference of Puerto. ican Women, Na-

tional Organization for Women Legal Defense and Edu-

cation Fund, National Women’s Political Caucus, Organi-

zation of Pan Asian American Women, Rural American

Women, Sociologists for Women in Society, Women’s

Equity Action League, Women’s Equity Action League

Educational and Legal Defense Fund, American Civil

Liberties Union, and Women’s Legal Defense Fund, with

the consent of the parties as provided in Rule 42 of the

Rules of this Court.

These organizations share a concern that individuals be

free to participate in all facets of American life without

discrimination on the basis of gender. Central to the effort

to secure equal rights for women is the establishment of

an educational system which is itself free from gender-

based bias. Title IX is one of the most important tools

available to combat sex discrimination in educational in-

stitutions. To preclude private rights of actions under

Title [LX would be to eliminate a critical means for secur-

ing compliance with the law.

SUMMARY OF ARGUMENT

1. The issue in this case is whether individuals may seek

judicial enforcement of the right created by Title IX of

the Education Amendments of 1972 to be free from gender-

based discrimination by educational institutions receiving

federal funds. Our approach to this issue turns principally

upon the fact that §901(a) of Title IX expressly extends

its guarantees to individuals. The language used in that

section—*No person in the United States shall, on the

~~ 0 wee > wee

basis of sex, . . . be subjected to discrimination under any

educational program or activity receiving federal finan-

cial assistance”—directly focuses upon the rights accorded

to individuals. In doing so, the statute is quite similar

to the Fourteenth Amendment and to various civil rights

acts extending equal protection rights to each person. The

limitation contained in § 901 to federally-assisted programs

is simply descriptive, in this context, of the covered insti-

tutions. It was probably included to preclude constitu-

tional problems, and was of little practical significance by

the time Title [IX was passed; federal financial assistance

to educational institutions was so pervasive by then that

almost all schools in the country were covered.

2. The legislative history of Title IX vividly supports

our contention that the central purpose of that Title was

to create new personal federal rights. Title IX was passed

during a period when Congress was particularly aware of,

and concerned about, the inadequacy of federal constitu-

tional and statutory protections against gender-based dis-

crimination. Further, Congress was presented, during the

hearings which preceded the passage of Title IX, with evi-

dence of massive and pervasive discrimination against

women by educational institutions. The debate on Title IX

focused principally upon that evidence and upon the con-

sequent necessity to create “ a strong and comprehen-

sive measure ... to provide women with solid legal

protection” from gender-based discrimination in education.

118 Cong. Ree. 5804 (1972) (remarks of Sen. Bayh).

3. From the conclusion that Congress consciously and

explicitly created in Title IX a new federal right personal

to each individual, the further conclusion that such right

is enforceable in court would ordinarily follow. For, just

as the availability of relief in federal courts from invasion

of constitutional rights is presumed, so this Court has per-

mitted private judicial enforcement of federal statutory

rights to equal protection when the statute declaring those

rights does not explicitly provide for such enforcement.

See, e.g., Jones v. Afred H. Mayer Co., 392 U.S. 409, 415

n.15 (1968); Johnson v. Railway Express Agency, 421 U.S.

454 (1975). The question, then, is whether the fact that

Congress went further in Title IX than a simple declara-

tion of rights and included, in § 902, provisions for admin-

istrative action in furtherance of those rights, requires a

different result than if Congress had failed so to provide.

1. Comparison of the scope of the right created in Title

IX with the character of the administrative enforcement

established by § 902 compels the conclusion that adminis-

trative action was intended as complementary to, but not

coextensive with, the guarantees of § 901.

Section 902 provides that federal departments and agen-

cies “may” effect compliance “by termination or refusal

to grant or to continue assistance” or “by any other means

authorized by law;” termination must be preceded by op-

portunity for voluntary compliance, a full hearing, and a

report to the appropriate committees of Congress. For

several reasons, this enforcement mechanism is incapable

of, and was not intended as, full protection of the guar-

antees created in § 901.

Administrative enforcement under § 902 operates only

prospectively, while $901 applies in the present to any

institution “receiving” federal funds. As a result, the

threat of termination does not act as a deterrent to pro-

grams who do not expect their federal assistance to con-

tinue in the future. Further, even as to those programs

which do rely upon continued federal assistance, fund

termination does not assure that individual rights will be

protected. For example, if Ms. Cannon were able to prove

that she was indeed denied admission to medical school

because of gender-based discrimination, and the termina-

tion sanction were invoked, neither she nor others simi-

larly situated would ever receive the medical school

education they were illegally denied while federal funds

were being received.

Further, § 902 is not coextensive with § 901 for another

reason: it lodges enforcement authority only in federal

“agencies or departments”, while § 901 is not so limited.

Federal funds are sometimes dispensed through entities

which are not federal “agencies or departments”. When

they are, there would, but for private suits, be no means

of enforcement at all if § 902 were exclusive.

On the other hand, § 902 does serve a function which

would not have been served if § 901 stood alone. The au-

thority to terminate federal funds because of violation of

§ 901 would not follow inexorably from § 901 itself; it was

therefore necessary specifically so to permit. Thus, §§ 901

and 902 serve complementary but not coextensive func-

tions, and $902 should not be read as a limitation upon

the rights created in § 901.

2. While the availability of individual judicial relief to

protect § 901 rights would follow, without more, from the

considerations discussed above, there are specific indi-

cations in the legislative history of Title IX, and of Title

VI of the Civil Rights Act of 1964 upon which Title IX was

structurally based, that Congress did not understand or

intend § 902 as the sole means of enforcing the personal

rights created in Title IX. First and most important, in

§ 11 of Title VII of the Education Amendments of 1972, the

same Act of which Title IX was part, Congress provided at-

torneys’ fees for plaintiffs in certain private enforcement

actions under Title VI of the Civil Rights Act of 1964.

Since Title IX was consciously modelled upon Title VI,

the fact that Congress in passing the attorneys’ fees pro-

vision in 1972 acted directly upon the understanding that

private enforcement actions were available under Title VI

must be taken as conclusive evidence that it understood

that such private actions would be available under the

newly-enacted, parallel provisions of Title IX.

Second, Congress in Title IX failed to foreclose private

lawsuits such as third-party beneficiary actions and suits

under 42 U.S.C. § 1983, derived from Title IX but not

based directly upon it. This suggests that judicial enforce-

ment of Title [X’s guarantees was not considered to be in-

consistent with the administrative powers established by

§ 902.

Third, in enacting Title VI, Congress rejected an ap-

proach which would solely have provided the enforcement

authority, substituting instead the two-part structure later

followed in Title IX. A dispute which arose about the

coverage of Title VI for contracts of loan and guarantee,

and the resolution of that dispute, demonstrat + that Con-

gress plainly understood that the declaration of rights

contained in § 601 was not limited to the right to the en-

forcement mechanism created in § 602. Given the inten-

tional parallelism between Title IX and Title VI, the same

conclusion follows as to §§ 901 and 902. Section 902 must

therefore be viewed as an additional means of enforcement

to traditional judicial powers, rather than as a substitute

therefor.

III

1. The Court of Appeals erroneously viewed three re-

cent decisions of this Court—National Railroad Passenger

Corp. v. National Ass’n of Railroad Passengers, 414 U.S.

453 (1974); Securities Investor Protection Corp. v. Bar-

bour, 421 U.S. 412 (1975); and Cort v. Ash, 422 U.S. 66

(1975)—as requiring denial of personal enforcement suits

under Title [X. These three cases did not involve statutes

which explicitly created personal rights. To the contrary,

the statutes involved in those cases were, as this Court

specifically noted, designed principally to protect public

interests. Therefore, in those cases the presumption of the

availability of private enforcement did not arise.

2. Further, the analysis, as opposed to the result, in

Cort, supra, fully supports the outcome we seek in this

case. The four factors identified in Cort as relevant to de-

termining whether private lawsuits may be brought to en-

force federal statutes all argue strongly in favor of a

private cause of action under Title IX. In deciding other-

wise, the court below misunderstood the role of statutory

construction principles in a case of this kind, and misun-

derstood as well the complementary interface between

private enforcement actions and proceedings under § 902

of Title IX.

3. Finally, there are three decisions of this Court—

Rosado v. Wyman, 397 U.S. 397 (1970); Allen v. Board of

Elections, 393 U.S. 544 (1969) ; and Calhoon v. Harvey, 379

U.S. 134 (1964)—which, taken together, do control the dis-

position of this case. In Allen and Calhoon, the statutes

did create personal rights. In Allen, the Court permitted

private enforcement without inquiring into whether such

enforcement was specifically intended by Congress, while

in Calhoon, a private cause of action was denied only be-

cause Congress expressly so provided. And, in Rosado, the

Court permitted private enforcement actions despite the

existence of a fund termination mechanism quite similar

to that contained in § 902, stressing that the resolution of

disputes concerning guarantees attached to the expendi-

ture of federal funds is “peculiarly part of the duty of

this tribunal.” 397 U.S., at 423.

Thus, these three cases, unlike the three quite different

eases relied upon below, involve statutes quite similar to

Title IX, and require that individuals be permitted to

enforce in court the rights Congress guaranteed each per-

son when it enacted Title IX.

ARGUMENT

Section 901 of the Act Directly Creates Personal Rights

Which Federal Courts May Enforce.

The issue in this case is whether individuals may seek

judicial enforcement of the protection against gender-

based discrimination extended by Title IX of the Edu-

cation Amendments of 1972. In our view, the answer to

that question turns principally upon the fact that 4901

of Title IX, a section separate from the later provisions

of the Title that concern administrative enforcement

powers, expressly extends its guarantees to individuals,

and does so in language similar to that used in the

Fourteenth Amendment and in various civil rights acts

long construed to create personal rights. The legislative

history of Title IX makes clear that the decision to

create new personal federal rights was quite conscious.

The debate on Title IX focused primarily upon the

lack of effective constitutional and statutory protection

against gender-based discrimination, the evidence of mas-

sive and pervasive sex discrimination by educational

institutions, and the consequent need to extend to each

individual a right to be free from such discrimination by

programs receiving federal funds. Since Congress con-

sciously and explicitly created in Title [IX a new federal

right personal to each individual, the conclusion that

such right should be presumed to be enforceable in

federal court follows. For, this Court has traditionally

permitted actions to enforce personal federal rights even

where the constitutional or statutory provision creating

that right does not expressly so permit.

1. The Personal Rights Language of § 901. The first

section, § 901(a) of Title IX of the Education Amendments

of 1972, 20 U.S.C., § 1681(a), declares in sweeping terms

that:

“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. . .”

This language, appears on its face to be a broad declara-

tion of personal rights. It directs that “no person” shall

be subject to discrimination, thus focusing directly upon

the rights of individuals. Since “the guarantees of the

[statute] extend to persons . . . the ‘rights created are, by

its terms, guaranteed to the individual. The rights estab-

lished are personal rights.’” Regents of University of

California v. Bakke, ..... USS. .., 46 U.S.L.W. 4896, 4901

(1978) (Opinion of Powell, J.), quoting Shelley v. Kraemer,

334 U.S. 22 (1948); see also Bakke, supra, 46 U.S.L.W., at

4935, n.19 (Opinion of Stevens, J.).

Moreover, as this Court has recently noted, prohibitions

against discrimination are necessarily peculiarly focused

upon individuals. Such prohibitions “preclude treatment

were added in 1974 (Pub. Law 93-568, §3(a), Dec. 31, 1974, 88

Stat. 1862) and 1976 ( Pub. Law 94-482, Title IV, § 412(a), Oct. 12,

1976, 90 Stat. 2234), set out certain exceptions to this proclamation,

the exceptions are not pertinent here. This case involves “admissions

to . . . institutions of professional education,” (§901(a)(1)), and

therefore is squarely within the scope of the statute.

‘While the remaining subsections of 3(a).t some of which

of individuals as simply components of a. . . class.” City

of Los Angeles, Dept. of Water v. Manhart, US. .......,

46 U.S.L.W. 4349 (1978). The fact that statutes and con-

stitutional provisions dealing with discrimination typically

are worded with a focus on “persons” or “individuals” is

therefore not fortuitous. Their precise purpose is protec-

tion of the right of individuals to be treated as individuals.

(See, e.g., § 703(a)(1) of Title VII of the Civil Rights Act

of 1964, 42 U.S.C. § 2000e-2(a)(1)).

Thus, it is not surprising that the wording of § 901(a)

bears a striking resemblance to that used in constitutional

and statutory provisions which undeniably confer personal

rights to be free from discrimination upon individuals. The

Fourteenth Amendment, for example, states: “No state

shall deny to any person ... the equal protection of the

laws.” (Emphasis supplied).

The fundamental protections of many of the Civil Rights

Acts are similarly worded. For example, 42 U.S.C. § 1981,

recently construed to confer enforceable personal rights

to be free from private employment and educational dis-

crimination based on race* reads: “All persons . . . shall

have the same right .. . to make and enforce contracts. . .

as is enjoyed by white citizens .. .” (Emphasis supplied).

See also 42 U.S.C. § 1982.

The direct ancestor of the language and structure of

Title [IX was Title VI of the Civil Rights Act of 1964,

as those who devised Title IX stressed. (117 Cong. Ree.

“Johnson v. Railway Express Agency, 421 U.S. 454 (1975); Till-

man v. Wheaton-Haven Recreation Assn., 410 U.S. 431 (1973);

McDonald wv. Santa Fe Trail Transportation Co., 427 U.S. 273

(1976); Runyon v. McCrary, 427 U.S. 160 (1976).

13555 (1971) (remarks of Sen. Bayh) ; 118 Cong. Ree. 5807

(remarks of Sen. Bayh); 117 Cong. Ree. 39252 (remarks

of Rep. Mink). Section 601 of Title VI provides:

“No person in the United States shall, on the ground

of race, color, or national origin, be excluded from

participation in, be denied the benefits of, or be sub-

jected to discrimination under any program or activity

receiving Federal financial assistance.”

While a majority of this Court declined, in Bakke, supra,

to determine whether or not a private action to enforce

§ 601 of Title VI is available, five members of the Court

laid great stress upon the fact that the language of Title

VI created “personal rights.” 46 U.S.L.W., at 4901 (Opin-

ion of Powell, J.); id., at 4936 nn.26 & 28 (Opinion of

Stevens, J.).

It is true, of course, that ¢ 901 of Titie TX, like § 601

of Title VI, limits the programs covered to those “receiv-

ing Federal financial assistance.” That limitation, however,

is simply descriptive of the institutions against which the

right may be asserted.*

The limitation to educational programs “receiving

Federal financial assistance” was of relatively little prac-

tical significance by the time Title IX was passed. For,

before 1972, and in the Education Amendments of 1972

*The reason for limiting Title IX to educational p receiv-

ing federal financial assistance is nowhere stated in legislative

history of the statute. One may, however, infer the reason: to avoid

any conceivably meritorious constitutional attack upon the legisla-

tion. For, in venturing into regulation of the internal affairs of pub-

lic and private educational institutions, Congress was plainly tread-

of which Title IX was a part, Congress provided for broad

programs of federal financial assistance to institutions of

the kinds covered by Title IX.* The result was that Title

IX could be expected to cover, once passed, almost every

elementary and secondary school and virtually all colleges

ing into areas traditionally reserved to the states. Constitutional

attacks based on the limits of federal power could fairly have been

anticipated.

It is probable, of course, that federal prohibition of gender-based

discrimination in public institutions would be valid if enacted pur-

suant to §5 of the Fourteenth Amendment. Katzenbach v. Morgan,

384 U.S. 641 (1966); Fitzpatrick v. Bitzer, 427 U.S. 445 (1976). A

similar prohibition upon private educational institutions might well

also be constitutional, as an exercise of federal power to regulate

interstate commerce. Heart of Atlanta Motel, Inc. v. United States,

379 U.S. 241 (1964); Katzenbach v. McClung, 379 U.S. 294 (1964).

But, if either of these propositions was considered at all dubious

(and both were plainly in question at the time Title VI, the struc-

tural model for Title IX, was enacted),

“There is of course no question that the Federal Government

. .. may impose the terms and conditions upon which its money

allotments to the States shall be disb and that any state

law or regulation inconsistent with such federal terms and con-

ditions is to that extent invalid. See Ivanhoe Irrigation District

v. McCracken, 357 U.S. 275, 295 tioa7}" O oma wv. Civil

Service Comm'n, 330 U.S. 127, 143 (1947).” King v. Smith, 392

U.S. 309, 333 (1968).

Cf. Steward Machine Co. v. Davis, 301 U.S. 548, 597-598 (1937);

Helvering v. Davis, 301 U.S. 619, 645 (1937); Rosado v. Wyman,

397 U.S. 397, 420-423 (1970).

‘See, e.g., Title I of the Education Act of 1964, 20 U.S.C. 241a et

seq. (financial assistance to local school districts for the education

of children of low-income families); Title IV of the Education

Amendments of 1972, 20 U.S.C. § 241laa et seq. (financial assistance

to local educational agencies for education Indian children);

Titles II, Ill & IV of Education Act of 1965, 20 U.S.C. $§ 331

et seq., 821 et seq., 841 et seq. (financial assistance for inter alia,

instructional materials, libraries, construction and demonstration

projects in elementary and secondary school); National Defense

Education Act of 1958 as amended, 20 U.S.C. § 401 et seq. (finan-

cial assistance to institutions of higher education, and to public ele-

and universities in the country.’ Thus, the limitation to

programs “receiving federal financial assistance” does not

detract from the conclusion that the language of § 901

created broad personal rights.

2. Guarantee of Personal Rights as the Principal Pur-

pose of Title 1X. The legislative history of Title IX

vividly confirms the impression given by the language

of §901(a)—that Congress intended to create, in Title

IX, a new and broad right, the right to be free from

gender-based discrimination by educational institutions.

For that history foeases almost entirely upon the scope

of the sex-discrimination problem in education and the

necessity to provide new substantive guarantees to deal

with that problem, with little mention made of the con-

mentary and secondary schools, for various purposes relating to

strengthening academic development of students); Bilingual Edu-

cation Act of 1968, 20 U.S.C, ; 880b et seq. (financial assistance to

local educational agencies and institutions of higher education for

educational needs of children of limited ee ey ability ) ;

Titles V & VII of the Education Amendments of 1972, 20 U.S.C.

§§ 887d & 900 et seq. suena assistance to public and private

educational institutions for consumer education and ethnic heritage

studies ); Higher Education Act of 1965, as amended, inter alia, by

the Education Amendments of 1972, 20 U.S.C. § 1001 et seq. ( grants

to institutions of higher education for continuing education, library

services, developing institutions and community colleges, »:udent

financial assistance and loans, teacher education, equipment and

remodeling, construction, and cooperative education ); International

Education Act of 1966, 20 U.S.C. § 1171 (grants to institutions of

higher education for graduate centers in international studies);

Emergency School Aid Act of 1972, 20 U.S.C. § 1601 et ~~ ( grants

to local educational agencies for programs concerning racial integra-

tion and minority education); and, Vocational Education Act of

1963 and Vocational Education Amendments of 1968, former 20

U.S.C. §§ 1241 et sea. and 1301 et seq. ( grants for vocational educa-

tion).

‘United States Commission on Civil Rights, A Guide io Federal

Laws and Regulations Prohibiting Sex Discrimination, (Clearing-

house Publication No. 46, July, 1976 (revised) ), at 76.

nection between the guarantee extended and the process

of distributing federal funds.

In assessing the legislative history, it is helpful to recall

at the outset the setting in which Title IX was devised.

First, the spate of recent gender-based discrimination

decisions under the Fourteenth Amendment (see, e.g.,

Craig v. Boren, 429 U.S. 190 (1977) ; Weinberger v. Wiesen-

feld, 420 U.S. 636 (1975); Frontiero v. Richardson, 411

U.S. 677 (1973)) did not exist. There was, at the time,

only the bare glimmer of an indication from this Court

that gender discrimination by public educational institu-

tions could be subjected to any meaningful constitutional

review. Reed v. Reed, 404 U.S. 71 (1971).° The Equal

Rights Amendment was pending in Congress during the

same period as the Education Amendments of 1972," so

that the inadequacy of existing constitutional protections

against gender-based discrimination was the subject of

contemporary Congressional attention.

Moreover, Congress was about to provide, in the other

titles of the Bill of which Title LX was a part, for massive

federal assistance to institutions of higher education, and

*As Senator b:yh noted in first introducing the amendment

which became Title IX:

“While racial discrimination has been explicitly prohibited for

nearly 20 years, only a few months ago the Supreme Court

summarily affirmed a lower court decision upholding the con-

stitutionality of a State’s maintenance of a branch of its public

university system on a sexually segregated basis.” 117 Cong.

Rec. 30155 (1971).

’The final vote in the House on the Equal Rights Amendment was

354 to 24, on October 12, 1971. 117 Cong. Rec. 35815 (1971). The

— — in the Senate was 84 to 8, on March 22, 1972. 117 Cong.

ec. .

to students in those institutions, on a scale unheard of

previously. Yet, there was no general federal protection

against gender-based discrimination by these private insti-

tutions, many of which dominate entry into careers and

professions.

Second, there was massive evidence before Congress,*

demonstrating that gender-based discrimination was both

pervasive and destructive:

“ - . , one of the great failings of the American

educational system is the continuation of corrosive

and unjustified discrimination against women [which]

. reaches into all facets of education—admissions,

scholarship programs, faculty hiring and promotion,

professional staffing, and pay scales. Indeed, the

recent ‘Report on Higher Education’ funded by the

Ford Foundation concluded, ‘Discrimination against

women, in contrast to that against minorities, is still

overt and socially acceptable within the academic

community.’ ” 118 Cong. Ree. 5803 (1972) (remarks of

Sen. Bayh).

In particular, it was reported to Congress that “the

percentage of the female population enrolled in college

lis} markedly lower than the percentage of the male

‘Much of this evidence was derived from extensive hearin’ 3 held

in the summer of 1970 by the House Special Committee on Educa-

tion. These hearings produced “over 1,200 pages of testimony

documenting the massive, persistent patterns of discrimination

against women in the academic world... [ , ] a situation which

_ | national scandal . . .” 118 Cong.Rec. § 5804 (remarks

of Sen. Bayh).

population.” 118 Cong. Ree. 5805 (remarks of Sen Bayh).°

And, even if admitted to college, women were less likely

to receive adequate financial aid (118 Cong. Rec. 5805

(remarks of Sen. Bayh)), and were denied admission,

although qualified, to prestigious honorary societies. 118

Cong. Ree. 5811 (paper of Dr. Bernice Sandler, n.9, supra).

Moreover, the situation with regard to graduate and

professional schools was even more dismal: In many

areas of graduate and professional studies, including

such prestigious fields as law and medicine, women in

1972 constituted a small percentage of the total enroll-

ment. 118 Cong. Ree. 5805, 5806 (remarks of Sen.

Bayh) ; see also, id., at 5809.*°

Even those women who did attain and complete grad-

uate training remained victims of discrimination by

*It was recognized that “some of these differences [in enroll-

ment] result from sex-role expectations in our society. However,

there are indications that discrimination Coes exist at many schools.”

118 Cong.Rec. 5805 (1972) (remarks of Sen. Bayh). Evidence of

iscriminatory practices included one study showing that identical

applications would be rejected if the applicant were identified as

female and accepted if the applicant were identified as male.

118 Cong.Rec. 5811 (paper of Dr. Bernice Sandler presented to

Association of American ore agi Indeed, certain colleges ex-

plicitly admitted only “especially well-qualified” women, while in-

sisting n no exceptional ability for men. 117 Cong.Rec. 39258

(1971) (remarks of Rep. Abzug); H. Rep. No. 92-554, 92nd Cong.,

1st Sess. (1972), at 51.

Particularly troublesome was the fact that far from improving,

this situation seemed to be worsening. Thus,

“Dr. Francis S. Norris testified during the same hearings that

although the number of women applying for admission to U.S.

medical schools increased by more than 300 percent between

1929-30 and 1965-66—while male applications increased by unly

29 percent—the percentage of women applicants who were ac-

cepted actually declined during the same time pertod.” 118

Cong.Kec. 5806 (remarks of Rep. Bayh).

universities: the number of tenured female professors at

universities was miniscule, even when those same uni-

versities produced much higher percentages of female

Ph.D.’s. 118 Cong. Ree. 5805 (remarks of Sen. Bayh); see

also, id., at 5810. And, “the rule is that once hired women

do not receive equal pay for equal work.” Jd.

This same phenomena was noted in public schools:

“(More than two-thirds of the teachers in elemen-

tary and secondary schools are women, but they con-

stitute only 22 percent of the elementary school prin-

cipals and only 4 percent of the high school princi-

pals ... [and] only two women can be found among

13,000 school superintendents.” 118 Cong. Ree. 5805

(remarks of Sen. Bayh).

Further, elementary and secondary schools were noted

to practice gender-based discrimination as to students

as well: many vocational training schools and classes

were sex segregated (118 Cong. Ree. 5806 (remarks of

Sen. Bayh)), with the result that “[more] lucrative

fields .. . [are] ‘reserved’ for males [even though] it is

only tradition which keeps women out of those fields.”

Id.

In response to the “vicious and reinforcing pattern of

discrimination” (118 Cong. Ree. 5804 (remarks of Sen.

Bayh)), and to the lack of “effective protection for

[women] as they seek admission and employment in

educational facilities,’ (117 Cong. Ree. 30155 (remarks

of Sen. Bayh)), Congress determined in Title IX to

“ouarantee that women enjoy the educational opportunity

every American deserves.” Jd. The bill was therefore

designed as:

“a strong and comprehensive measure [that] is needed

to provide women with solid legal protection from

persistent, pernicious discrimination which is serving

to perpetuate second-class citizenship for American

women.” 118 Cong. Rec. 5804 (remarks of Sen Bayh).

Frequent emphasis was given in the legislative debates

to the need to give individuals the same protection from

gender-based discrimination in education accorded, under

the Constitution and the civil rights statutes, to victims

of race discrimination:

“('\What] this title does is to ask that a woman be

considered as a human being, that her qualifications

be considered in the same fashion as those of a male.

If she qualifies, she should not be discriminate

against on the basis of sex, just as we do not now

discriminate on the basis of race.” 117 Cong. Ree,

39259 (remarks of Rep. Green). See also, e.g., 117

Cong. Ree. 39256 (remarks of Rep. Waggoner); 117

Cong. Rec. 30155 (remarks of Sen. Bayh); 118 Cong.

Ree, 5807 (remarks of Sen. Bayh).

To accord that protection, it was plainly necessary to

create a new personal right theretofore non-existent,

which is precisely what Congress did in § 901(a).™

“In this res Title IX differs from Title VI as construed by

the majority of the Court in Bakke. See Bakke, supra (Opinion of

Powell, J.); id. (Opinion of Brennan, White, Marshall, and Black-

mun, JJs.). That is, Title IX, unlike Title VI, did not simply incor-

porate the constitutional standard for determining the ry wy of

discrimination but created a new, more stringent standard for edu-

cational institutions. As interpreted by HEW, that standard is basic-

ally the same one established with respect to sex discrimination

For that reason, it is not at all surprising that

Senator Bayh described as “the heart of [the Title]...

the provision [§901(a)] banning sex discrimination in

educational programs receiving federal funds.” 118 Cong.

Ree, 5803 (remarks of Sen. Bayh). Nor is it surprising

that the various amendments circumscribing the protec-

tion accorded were added to §901(a) of the bill, rather

than to the later sections dealing with the enforcement

authority of HEW. For, § 901(a) is the section describing

the nature and limits of the personal right created, so

that limitations placed elsewhere in the bill would be

ineffective to assure that the prohibition upon dis-

crimination extended only as far as intended.”

Congress’ primary purpose, then, in devising Title IX

was to provide:

“the essential guarantees of equal opportunity in

education for men and women... [,] to provide for

the women of America something that is rightfully

theirs—an equal chance to attend the schools of their

choice, to develop the skills they want, and to apply

those skills with the knowledge that they will have

a fair chance to secure the jobs of their choice with

equal pay for equal work.” 118 Cong. Ree. 5804

(remarks of Sen. Bayh) (emphasis supplied).

under Title VII of the Civil Rights Act of 1964. Compare, e.g., 45

C.F.R. §§ 86.21 (b)(2), (c)(2) with Dothard v. Rawlinson, 433

U.S. 321 (1977) and Manhart, supra; see also Griggs v. Duke Power

Co., 401 U.S. 424 (1971).

"See discussion in Part II, infra, at pp.?? - 33 of the amendment

to Title VI of the Civil Rights Act of 1964 concerning contracts of

guarantee.

The legislative history thus illustrates that Congress

intended precisely what the language chosen for § 901(a)

suggests—to create a new federal right, personal to each

individual affected.

3. Judicial Enforcement of Personal Rights. From the

conclusion that Congress consciously and explicitly created

a federal right personal to individuals, the further con-

clusion that such right is enforceable in federal court or-

dinarily follows." For, “[t]he very essence of civil lib-

erty certainly consists in the right of every individual

to claim the protection of the laws, whenever he receives

an injury.” Marbury v. Madison, 5 U.S. (1 Cranch) 137,

163 (1803). Consequently, “the . . . availability of fed-

eral equitable relief against threatened invasions of con-

stitutional interests” has long been “presumed” (Bivens

v. Stix Unknown Named Agents, 403 U.S. 388, 404 (1971)

(Harlan, J., concurring)), so that, by 1946,

“it [was] established practice for this Court to sus-

tain the jurisdiction of federal courts to issue injunc-

tions to protect rights safeguarded by the Constitu-

tion and to restrain individual state officers from

*83Of course, there must also be jurisdiction to entertain the suit.

It would a , however, that if a cause of action is available

under Title IX, there would always be jurisdiction under 28 U.S.C.

§ 1343(4), for the suit would be one “under [an] Act of Congress

roviding for the protection of civil ieee .... Allen v. State

oard of Elections, 393 U.S. 544, 554 (1969); Jones v. Alfred H.

Mayer Co., 392 U.S. 409, 412 n.1 (1968). If this su tion proved

incorrect, there would be jurisdiction in cases involving reliet worth

more than $10,000 under 28 U.S.C. § 1331; suits involving less than

that amount might be relegated to state court, but the right en-

forced would still be a federal right. Cf. Sullivan v. Little Hunting

Park, Inc., 396 U.S. 229, 238 (1969).

doing what the Fourteenth Amendment forbids the

state to do.” Bell v. Hood, 327 U.S. 678, 684 (1946).

Similarly, personal federal statutory rights are pre-

sumptively enforceable in federal courts. Thus, this

Court:

“held in Jones v. Alfred H. Mayer Co., that although

(42 U.S.C.] §1982 is couched in declaratory terms

and provides no explicit method of enforcement, a

federal court has power to fashion an effective equi-

table remedy. 392 1.S. [409], 414, n.13.” Sullivan v.

Little Hunting Park, Inc., 396 U.S. 229, 238 (1969).

(1969). See also cases cites a p. 11, n.2, supra.

The Jones v. Alfred H. Mayer Co. holding was an

example of the principle that where,

“Caln Act as a whole indicates an intention to es-

tablish a statutory right ... the litigant may enforce

[that right] ... by such legal or equitable actions or

procedures as would normally be available to him.”

Deckert v. Independence Shares Corp., 311 U.S. 282,

287 (1940).**

‘The issue of whether damages, as opposed to equitable relief,

may be awarded without explicit authorization has been regarded

as presenting different and more difficult, a not insuperable,

roblems. Bivens, supra, 403 U.S., at 395-396; id., at 400-406 ( Har-

an, Jr., concurring); Jones v. Alfred H. Mayer Co., 392 U.S. 409,

415 n.14 (1968); compare Deckert, supra, with J.I. Case Co. v.

Borak, 377 U.S. 426 (1964); cf. Piper v. Chris Craft Industries,

Inc., 430 U.S. 1, n.33 (1977).

Justice Harlan in Bivens analyzed the distinction between grant-

ing equitable relief and providing a cause of action for legal dam-

ages as one which “relates, not to whether the federal courts have

the power to afford one type of remedy as opposed to the other,

but to the criteria which should govern the exercise of our power.”

403 U.S., at 406. He suggested that the appropriate criteria for

whether to permit legal damages where a personal federal right is

at stake is “whether compensatory relief is ‘necessary’ or ‘appropri-

ate’ to the vindication of the interest asserted.” Id., at 407.

In sum, since Title IX expressly creates personal fed-

eral rights, since the primary purpose and intent of the

statute was to create such rights, and since judicial relief

is ordinarily available to enforce a clear personal federal

right, such relief would be available if 4 901 were the only

section of Title IX. The question, then, is whether the fact

that Congress went further than a simple declaration of

rights and included provisions for administrative action

in furtherance of those rights requires a different result

than if it had failed so to provide.

The Availability of an Administrative Fund Termination

Mechanism under § 902 of Title IX does not Detract

From the Personal Rights Created by § 901, or Negate

the Availability of Judicial Enforcement of those

Rights.

The Court of Appeals, while conceding on rehearing

that the result might well be otherwise had Congress pro-

vided no administrative enforcement mechanism (559 F.2d

While Ms. Cannon is seeking damages as well as equitable relief,

there is no need to determine at this juncture the availability of a

legal damages remedy under Title LX. If Ms. Cannon’s cause of

action is proven and the equitable relief sought is granted, peti-

tioner may no longer “have suffered any uncompensated injury.”

Jones, supra, at 414, n.14. Under these circumstances, it aa te

a po to decide the damages question. Id. Further, many

forms of monetary relief are available as an exercise of the equitable

jurisdiction of the federal courts. See, e.g., Albemarle Paper Co. v.

Moody, 422 U.S. 405, 416-22 (1975) Mitcheli v. Robert DeMario

Jewelry, Inc., 361 U.S. 288, 291-93 (1960); Porter v. Warner Hold-

ing Co., 328 U.S. 395, 397-403 (1946). Since, in many Title IX

cases, the monetary relief sought, if any, may be restitutionary and

therefore equitable in nature, the availability of monetary, as op-

— to declaratory and injunctive, relief under Title IX is best

eft until a case arises in which the availability of a precise sort of

monetary relief is at issue.

1063, 1082), viewed the enforcement provisions of § 902

of Title [X—specifically, the fund termination authority—

as precluding any private remedy for breach of the guar-

antee contained in § 901. The Court of Appeals’ decision

in effect limits the personal right created by the broad

language of § 901 to the right to the enforcement proce-

dures established in § 902.

This proposition must be rejected. Comparison of the

rights created in § 901 with the enforcement mechanism

created by § 902 demonstrates that the enforcement au-

thority conferred upon federal agencies and departments

is complementary to, but not coextensive with, the right

created by Title IX, and was not designed as a means of

assuring individuals their rights under § 901. The legis-

lative history of Title IX, and of Title VI of the Civil

Rights Act upon which it was structurally modeled, con-

firms that Congress did not intend the enforcement au-

thority as a limitation upon the right created, or upon the

ordinary power of federal courts to enforce personal fed-

eral rights.

1. Comparison of §§ 901 and 902. Section 902 pro-

vides, first, that federal departments and agencies are

“authorized and directed” to implement Title [X by issuing

‘“‘rules, regulations, or orders of general applicability.””*

“The fact that departments and agencies are directed to imple-

ment the general non-discrimination standard with particular regu-

lations adapted to specific programs is not itself of any moment in

Second, departments and agencies “may” effect compli-

ance with the requirements established “by termination or

refusal to grant or to continue assistance” or “by any

other means authorized by law.”* Third, departments

aud agencies may not act to cut-off funds unless oppor-

tunity for voluntary compliance is provided. If no such

compliance is forthcoming, a full hearing must be held

prior to termination of funds. Finally, an intention to

terminate funds must be reported to the appropriate com-

mittees of Congress before the termination may be ef-

fective.

The fund termination authority is incapable of pro-

tecting the broad rights created by § 901 for a very funda-

mental reason: It operates only prospectively, while § 901

applies in the present to any institution “receiving” fed-

eral financial assistance.

The prospect of fund termination in the future may,

of course, serve as a deterrent to those programs which

expect to rely on federal funds in the future. But, no

such deterrent exists under §902 with regard to the

determining the degree to which enforcement of the statute’s guar-

antees has been exclusively committed to administrative process.

See, e.g., J. I. Case Co. v. Borak, supra; Piper v. Chris-Craft Indus.

tries, supra; Lewis v. Martin, 397 US. 552 (1970).

The Department of Health, Education and Welfare has con-

strued the “other means authorized by law” to include “a reference

to the Department of Justice with a recommendation that ap appropri: pri-

ate proceedings be brou “he to enforce any rights of the

States under any law of heme States . . . or any assurarice or

other contractual undertakin licable proceedin

under State or local law.” 45 ral F z. ‘§ 80. it) we wy fs marl ed),

as incorporated in 45 C.F.R. § 86.71. Th

“other means authorized by law” to selinaan at by ion Attor-

ney General enforcing public, but not private, rights.

funding of discrete, time-limited programs. Yet, the guar-

antees of 4901 apply whether or not the program in-

volved expects to continue as a federally assisted pro-

gram.

Moreover, even with regard to institutions such as the

medical school respondents in this case which, presumably,

expect to continue to rely upon federal funds, the ultimate

cut-off sanction could not be expected to assure for indi-

viduals protection of the personal rights established in

§ 901. For example, Ms. Cannon, if she is allowed to pro-

ceed with her lawsuit and establishes on the merits that

she was indeed denied admission because of gender-based

discrimination, would be entitled, under ordinary equi-

table principles, to a court order requiring her admission to

the medical schools for the normal course of study. See

Bakke, supra, 46 U.S.L.W., at 4896. If she were required

instead to rely upon the administrative mechanism ex-

clusively, she might well never achieve the medical school

education she was denied in violation of §901. For, if

HEW agreed that her rights had been violated and at-

tempts to effect voluntary compliance failed, termination

proceedings could be instituted. But, while termination

of funds will assure against violation of § 901 in the fu-

ture,” such termination will not remedy past violations

"For this reason, a suit for enforcement of rights under § 901

is not the functional equivalent of a private suit to a termina-

tion of funds under § 902. That is, once a violation of the rights

accorded by § 901 is proven, a court applying equitable principles

could order an institution to remedy that violation by taking action

in the future even if, at the time that action is taken, the ——

is no longer receiving federal funds. Cf. Swann v. C

Mecklenberg Board of Education, 402 U.S. 1 (1971); Franks v.

Bowman Transportation Co., 424 U.S. 747 (1976); Hills v. Gau-

of §901, or provide for Ms. Cannon and others already

denied their rights under § 901 the protection accorded by

that section. That is, if 4 902 were the exclusive means of

enforcing § 901, Ms. Cannon might never be admitted to

medical school even if the reason for denial of admission

were proven to be gender-based.

The rights created under § 901 are not coextensive with

the enforcement mechanism established under § 902 for

another reason: Section 901 applies to any educational

program or activity receiving federal funds, while § 902

vests enforcement authority only in federal “agencies or

departments.” While it is true that, for the most part,

federal financial assistance to education is dispensed

through federal departments and agencies, it is not uni-

formly so. The Houses of Congress, the Executive Office

of the President, and various governmental corporations

directly funded by Congress may dispense such assistance

as well.

For example, the Legal Services Corporation, created in

42 U.S.C. § 2996 et seq., may not be an “agency” or “de-

partment” within the meaning of §902. See 42 U.S.C.

§ 2996d(e)(1). Yet, it may, either directly or by grant

or contract, undertake educational activities, 42 U.S.C.

§ 2996e(a)(3)(B). While 4901 would apply to programs

such as those funded by the Legal Services Corporation,

§ 902, seemingly, would not. Thus, if §901 were not

privately enforceable, there might be no enforcement at

all for such programs.

treaux, 425 U.S. 284 (1976). Thus, a pre could not escape the

effect of a judicial remedial order under § 901 by voluntarily refus-

ing further federal funds.

Section 902 is not only incapable, operating alone, of

serving the rights protected by § 901, it serves a function

which § 901 standing alone would not. The authority and

responsibility of federal departments and agencies to take

gender-based discrimination into account in making fund-

ing decisions would not inexorably follow from persone!

protection against discrimination by programs receiving

federal funds. Indeed, questions about whether such au-

thority existed with respect to racial discrimination pro-

hibited by the Fourteenth Amendment was the original

reason for expressly including that authority in the Civil

Rights Act of 1964. 109 Cong. Rec. 11161 (1963) (Mes-

sage of Pres. Kennedy).

These considerations indicate that §§901 and 902

serve entirely different functions. The first guarantees

rights to individuals in the same way as do the equal

protection clause.of the Fourteenth Amendment and the

declaratory civil rights statutes. The second lodges in

federal departments and agencies the authority, and the

responsibility, to refuse federal funds to programs which

do not accord the rights guaranteed.

Obviously, Congress viewed the administrative enforce-

ment mechanism as a useful means of helping to establish

the rights created by Title IX as a reality on a national

basis. But it is odd, indeed, to conclude, as in effect did

the Court of Appeals, that by creating an entirely sepa-

rate and differently focused means in aid of its ultimate

goal, Congress negated the assurance of relief to indi-

viduals which would otherwise follow from a declaration

of individual rights."*

2. Congressional Intent on the Role of $902. The

availability of individual judicial relief follows, without

more, from the structure and language of Title IX as

read in the light of the effect ordinarily to be given

Congressional guarantees to individuals. There are, how-

ever, specific indications that Congress did not under-

stand §¢902 to constitute the sole means of enforcing

§ 901.

A. First, and perhaps most important, there is another

section of the Act of which Title IX was a part which is

expressly predicated upon the understanding that the

language and structure used in Title IX permit judicial

“This is not to say, of course, that Congress may not guarantee

personal federal rights and then expressly require that such rights

may be vindicated in court only in certain ways and only after cer-

tain procedural prerequisites are fulfilled. For example, in Title II of

the Civil Rights Act of 1964, 42 U.S.C. § 2000a et seq. Congress

guaranteed the right to be free of discrimination in places of public

accommodation but required notice to the appropriate local agency,

entrusted with local enforcement of an spllendatnation an-

tee, before F py suit could be instituted (42 U.S.C. § 2000a-

3(c)); limited such a suit to an action for preventive relief only

(42 U.S.C. § 2000a-3(a)); and, expressly made this limited suit,

and enforcement by the Attorney General, the exclusive remedies

for violations of the rights protected. 42 U.S.C. § 2000a-6(b).

Similarly, in Title VII of the same Act, 42 U.S.C. § 2000e et seq.,

Congress guaranteed the right to be free of employment discrimina-

tion, but required a on whose rights had been violated to file a

complaint with the ~ Employment Opportunity Commission,

and to wait for this agency to act before instituting a civil suit.

42 U.S.C. basemen 4» Where such procedural prerequisites are

lacking, however, the implication is not that no judicial enforce-

ment is permitted but, rather, that the ordinary rules governing

civii actions apply in such an enforcement proceeding. Johnson v.

Railway Express Agency, supra, 421 U.S., at 460-461.

enforcement by affected individuals. Section 11 of the

Emergency School Aid Act of 1972, 20 U.S.C. $1617,

provides attorneys’ fees to successful plaintiffs in suits

involving education and brought under, inter alia, Title

VI of the Civil Rights Act of 1964, the structural model

for Title IX.%% The predicate for providing attorneys’

fees to successful individual plaintiffs is, of course, the

understanding that a private enforcement action is avail-

able. By 1972, Title VI had already been held by several

courts to permit such enforcement.” and Congress, far

1°The Emergency School Aid Act, in its final form, passed both

houses of om aad as did Title IX, as part of the Education Amend-

ments of 1972, and a as Title VII of the Amendments. See

S.Rep. No. 92-604, Cong., 2d Sess. (1972), reprinted in 1972

U.S. Code Cong. & Ad. News, at 2595.

ion 11 provides:

eg vy of a final order by a court of the United

States against a local educational agency, a State (or any

agency thereof), or the United States (or any agency thereof),

for failure to comply with any provision of this chapter or for

discrimination on the basis of race, color, or national origin

in violation of title VI of the Civil Rights Act of 1964, or

fourteenth amendment to the Constitution of the United States

as they pertain to elementary and secondary education, the

court, in its discretion, upon a finding that the proceedings were

necessary to bring about compliance, may allow the prevailing

party, other than the United States, a reasonable attorney's fee

as part of the costs.” (Emphasis supplied.)

2°Cases decided before 1972 indicating the existence of a pri-

vate right of action under Title VI include: Alvarado v. El Paso

Indep. School District, 445 F.2d 1011 (5th Cir. 1971); Bossier

Parish School Bd. v. Lemon, 370 F.2d 847 (5th Cir. 1967), cert.

denied, 388 U.S. 911 (1967); Rolfe v. County Board of Education,

282 F.Supp. 192, 194 (E.D. Tenn, 1966); Southern Christian Lead-

ership Conference, Inc. v. Connolly, 331 F.Supp. 940 (E.D. Mich.

1971); Gautreaux v. Chicago Housing Authority, 265 F.Supp. 582

(N.D. IIL, 1967).

In Bossier Parish, the earliest circuit court case and therefore the

best known, Judge Wisdom, joined by Judge Brown and Chief

Justice (then judge) Burger stated: +

“The Negro school children, as beneficiaries of [Title VI],

have standing to assert their Section 601 rights.” Id., at 852.

from disagreeing with that assessment, determined to

encourage the filing of such lawsuits by assuring success-

ful plaintiffs payment of attorneys’ fees, In particular,

there was discussion in Congress of the need for private

as weli us public enforcement of the civil rights statutes

because of “the enormous gaping law enforcement crisis

in the field of civil rights.” 117 Cong. Ree. 11339 (1971)

(remarks of Sen. Mondale).”

It is true that, in 1972, Congress did not provide

attorneys’ fees for plaintiffs in Title IX cases. This step

was taken, as to Title IX, after a period of experience

under the new Act parallel to that which had oc-

curred under Title VI by 1972.% This delay does not,

**See also 117 Cong. Rec. 11339-11340 (remarks of Sen. Mon-

dale); id., at 11345; 117 Cong. Rec. 10951-10952 (remarks of Sen.

Dominick).

“The later Attorneys’ Fees Act of 1976, 42 U.S.C. § 1988 as

amended, not only extended attorneys’ fees provisions to Title IX

but also to all Title VI cases. Statements made during the debate

of that bill stressed the importance of | rag orcement of

Titles VI and IX. See, e.g., 122 Cong. Rec. $16252 (daily ed.,

Sept. 21, 1976) (remarks of Sen. Kennedy); 122 Cong. Rec.

$16262 (remarks of Sen. Allen); 122 Cong. Rec. $16431

(remarks of Sen. Hathaway); 122 Rec. $17051 (remarks

of Sen. Tunney); 122 Cong. Rec. $17052 (remarks of Sen.

Abourezk); 122 Cong. Rec. H12165 (daily ed., Oct. 1, 1976) (re-

marks of Rep. Sieberling); 122 Cong. Rec. H12159 (remarks of

nn Criban). 122 Cong. Rec. H12164 (remarks of Rep. Holtz-

man).

It is true that other members of Congress noted, quite correctly,

that the 1976 bill “does not authorize . . . oy right of action

which does not now exist.” 122 ow Rec. H12161 (daily ed., Oct.

1, 1976) (remarks of Rep. Railsback). The salient point, however,

is that the members of Congress in 1976 shared the view of Con-

gress in 1972—that the map os structure of Title IX did create

a personal right which could be enforced in court.

however, detract from the significance of $11. For, that

section embodied in positive law the plain understanding

that the two part approach of Title [X—creation of

personal rights in one section, and provision of an ad-

ministrative mechanism focused upon the funding process

in another—does not destroy the usual availability of

private enforcement of personal federal rights.

B. Second, Congress apparently perceived no funda-

mental inconsistency between private enforcement suits

and the means of administrative policing of Title LX pro-

vided in § 902. For, Congress failed to foreclose the ju-

diciary from enforcing § 901 rights in lawsuits brought

at the behest of individuals and derived from Title IX

although not brought directly under it. For example, HEW

requires that every application for Federal financial assist-

ance for any education program or activity “shall contain

an assurance... that [the] program or activity ... will

[not violate § 901].” 45 C.F.R. § 86.4(a). A recent decision

of this Court suggests that private individuals could sue for

enforcement of such assurances if state law so permits,

Miree v. DeKalb County, 433 U.S. 255 (1977); ef. Lau v.

Nichols, 414 U.S. 563, 571 n.2 (1974) (Stewart, J., concur-

ring). Similarly, if the institution sued were run by a state

or local governmental body, a lawsuit for denial of the

Federal statutory rights guaranteed by Title IX could al-

most certainly be premised upon 42 U.S.C. § 1983. See

**A case presently pending before this Court, Chapman v. Hous-

ton Welfare Rights Organization, 555 F.2d 1219 (5th Cir. 1977),

cert. granted, 46 U.S.L.W. 3526 (1978) (No. 77-719) involves the

question whether 42 U.S.C. § 1983 includes, as that Section’s literal

language would suggest, cases based upon denial of federal statu-

tory rights.

De la Cruz v. Tormey, ....... F.2d ..... (9th Cir. Sept. 13,

1978), Slip Op., at 20-23. The fact that Congress failed to

eliminate either of these possibilities suggests that no

exclusion of the ordinary judicial means of enforcing

personal rights was intended.

C. Third, the legislative history of Title VI supports

our view of the diverse roles of §§ 901 and 902. As noted

previously (Part I (2), supra), the debate in Congress

on Title IX focused almost entirely upon the character

of the guarantee provided. There was little direct discussion

of the administrative enforcement procedure; rather, it

was stressed that the provisions of Title IX on that matter

were “parallel to those found in Title VI of the 1964 Civil

Rights Act.” 118 Cong. Ree. 5803 (1972) (remarks of Sen.

Bayh). Thus, while the considerations supporting the

availability of private judicial enforcement are especially

compelling as regards Title IX,* the legislative history

of Title VI is also of some aid in construing the purport

of Title IX. That history is inconclusive on the precise

question of whether private enforcement was contem-

**As noted, Title IX’s principal focus was the creation of new

personal rights while, in Title VI, the constitutional protections

were considered adequate, at least as regards public institutions,

and the major purpose of the legislation was to involve the federal

government in assuring protection of previously existing rights.

(Bakke, supra, 46 U.S.L.W., at 4900 (Opinion of Powell, PF id.,

at 4912-4915 (Opinion of Brennan, White, Marshall, and Black-

mun, JJ.).) Further, by 1972, the language and structure of Title

VI had been judicially construed to permit private enforcement

(see n. 20, supra), and this understanding was incorporated in

another Title of the Act of which Title IX was part. See pp. 29-32

supra.

plated.” There are, however, several strong indications

in legislative history of 4 601 of Title VI that § 601 was

intended and understood as an independent declaration of

rights, not limited by the provisions of § 602.

The message of President Kennedy which outlined the

proposals that became the Civil Rights Act of 1964 clearly

envisioned the administrative fund termination mechanism

as supplementary to, rather than a replacement of, private

enforcement of personal rights:

“Simple justice requires that public funds to which

all taxpayers of all races contribute not be spent in

any fashion which encourages, entrenches, subsidizes

or results in racial discrimination . . . It should not be

necessary to resort to the courts to prevent each in-

dividual violation. Congress and the Executive have

their responsibilities to uphold the Constitution also.

...” 109 Cong. Rec. 11161 (1963) (emphasis supplied).

This same view was reflected during the debate upon

Title VI:

“If Federal funds are to be dispensed on a nondis-

criminatory basis, the only possible remedies fall into

two categories: First, action to end discrimination ;

or second, action to end the payment of funds. Ob-

viously, action to end discrimination is preferable . . .

But if the discrimination persists ..., how else can

**See legislative history discussed in Bakke, 46 U.S.L.W., at 4900,

n. 18 (Opinion of Powell, J.); id., at 4926 & n.4 (Opinion of White,

J.); id., at 4936 n.28 (Opinion of Stevens, J.). Read in context, the

statements cited by Justices Powell and White to the effect that no

private enforcement suits were available seem plainly to pertain to

suits to terminate funds, rather than to suits to enforce § 601

through equitable relief. See n. 17 , supra & n. . 29, infra.

the principle of nondiscrimination be vindicated ex-

cept by the nonpayment of funds?” 110 Cong. Ree.

9605 (1964) (remarks of Sen. Ribicoff).

Moreover, it seems that the language and structure of

Title VI were carefully chosen to make clear that the Title

embodied both a declaration of personal rights and an

administrative mechanism, rather than simply the latter.

For, the first version of what became Title VI, H.R.

7152, 88th Cong., 2d Sess. (1964), had no declaration of

rights parallel to § 601. Rather, it simply previded that

Federal financial assistance need not “be furnished in cir-

cumstances under which individuals participating in or

benefiting from the program or activity are discriminated

against ....” The House Judiciary Committee rejected

this language, substituting the two-part approach used in

Title VI. See H.R. Rep. No. 914, 88th Cong., 2d Sess.

(1964), reprinted in 1964 U.S. Code Cong. & Ad. News

2391.

The significance of this change was understood by the

members of Congress, as a controversy which developed

during the enactment of Title VI demonstrates. In the

House of Representatives, opponents of Title VI had

complained about the fact that its language appeared to

encompass federal assistance in the form of contracts of

loan or guarantee. H.R. Rep., supra, 1964 U.S. Code Cong.

& Ad. News, at 2454. The result it was claimed, given the

degree to which private mortgages were guaranteed by

the federal government, would be to convert Title VI into

a fair housing bill. See, e.g., 110 Cong. Ree. 2500-2501

(1964) (remarks of Rep. Ryan, Celler, Jones and

Randall). In response to this fear, § 602 was amended to

make clear that no administrative action would be taken

on the basis of contracts of loan or guarantee. /d.

In the Senate, however, it was objected that amending

§ 602 was insufficient. Unless § 601 were also amended to

the same effect, it was said, “Section 601 could be con-

strued to be an open housing ordinance.” 110 Cong. Ree.

13435 (1964) (remarks of Sen. Long); see also, i., at

13436 (remarks of Sen. Long). The premise of this

suggestion was that:

“TSjection 601 is not limited by section 602...

[Although] both sections are in one title . . . they do

not *onform ... Not only do I say so; the Senator

from Minnesota [Mr. Humphrey] says so. The bill so

provides ... [T]his provision purports to give statu-

tory authority for an order . . . to haul any house-

holder who has a Government-secured loan into

Court.” 110 Cong. Ree. 13436 (remarks of Sen. Gore).

While it was argued, in response to this proposal, that

“lt}he trouble with the sponsors of the . . . amendment

is that they are not reading Title VI as a whole” (110

Cong. Ree. 13435 (remarks of Sen. Humphrey)), there

was nonetheless, adamant resistance on the part of the

sponsois of Title VI, and of the Justice Department, to

The care with which the two-part eS of Title VI and

‘the language thereof were chosen was stressed by Senator

Dirksen: language was hammered out slowly and rather

carefully in the course of many coriferences. J earnestly hope that

the amendment . . . will be voted down. 110 Cong.Rec. 13438.

ES AEC OT ll me

amending §601 to parallel §602 in this regard. The

reason was:

“[{I]f we were to write any exception into [§ 601],

we shall be acting to allow discrimination in some

of our programs ... We have spent much time and

have been very meticulous in drafting Title VI... .”

oe “ied Rec. 13442-13443 (remarks of Sen. Pas-

re).

This view was also succinctly expressed by Senator Keat-

ing:

‘All that is necessary is to read section 601.... We

cannot say that it shall be national policy under the

Constitution to discriminate. Section 602 is entirely

different ... [T]he Federal agency is limited in what

it can do under Section 602.” Jd., at 13437 (emphasis

supplied).

See also id., at 13442 (remarks of Sen. Humphrey); id., at

13469 (remarks of Sen. Long); id., at 13448 (remarks of

Sen. Dirksen).

The result was that, rather than amending 4 601,

Congress added an entirely different section, § 605, 42

U.S.C. § 2000d-4. This amendment was designed to assure

that Title VI was not construed to add any theretofore

non-existent power of the Executive Branch with regard

to fair housing protection, while avoiding any sanctioning

of discrimination in federally-assisted housing. 110 Cong.

Ree. 13469-70.

The import of this sequence is that, first, the entire

dispute was premised on the assertion that § 601 serves

a different function from §602; second, that despite

some statements appearing to dispute this construction,

the Senate as a whole apparently concurred in it, for it

agreed to an amendment with respect to the precise sub-

ject of dispute; and third, that by refusing to amend

§ 601 itself, Congress indicated an intention to preserve

the distinction between the declaration of rights and the

conferral of enforcement authority upon the Executive

Branch. Since Title IX was modelled upon Title VI,

the same distinction applies to Title IX.

In sum, the language and structure of Title IX, as

well as the legislative history of that Title and of Title

VI of the Civil Rights Act of 1964, make plain that

§ 902 was not intended as a limitation upon the personal

rights created in § 901, or upon the ordinary availability

of private judicial enforcement of personal federal rights.

Rather, § 902 provided means of promoting the protec-

tions accorded by § 901 additional to those which would

exist if 4901 stood alone.

Ill

The Court of Appeals Misconstrued and Misapplied this

Court’s Precedents on the Availability of Private Judi-

cial Enforcement.

In reaching its conclusion that the fund termination

mechanism in § 902 was the exclusive means of enforcing

§ 901, the court below entirely ignored the personal

character of the rights created in $901, and the lack of

Ne ete one

congruence between those rights and the differently-

focused procedures contained in § 902." Instead, the Court

of Appeals relied upon a series of recent cases concerning

regulation of industry in which the statutory remedy

was held to be exclusive. These cases—National Railroad

Passenger Corp. v. National Ass’n of Railroad Passengers

(“Amtrak”), 414 U.S. 453 (1974); Securities Investor

Protection Corp. v. Barbour (“SIPC”), 421 U.S. 412

(1975); and Cort v. Ash, 422 U.S. 66 (1975)—involved

statutes which bear little resemblance to Title [X in their

language, structure, or purpose. Moreover, properly

understood, the analysis applied in the most fully ex-

plicated of these cases, Cort, swpra, yields the same result

we reach under the somewhat different approach em-

ployed above. Finally, the Court of Appeals entirely

missed the significance of three other cases—Allen v.

Board of Elections, 393 U.S. 544 (1969), Calhoon v.

Harvey, 379 U.S. 134 (1964), and Rosado v. Wy».an, 397

U.S. 1207 (1969)—which, taken together, squarely control

the disposition of this case.

1. Amtrak, SIPC, and Cort. Title IX expressly guar-

antees rights to individuals. See Part I, swpra. In contrast

the statutory provisions which this Court interpreted in

the three cases upon which the Court of Appeals prin-

cipally relied involved the regulation of industry. In

Amtrak, supra, the provision sued under provided that

*?Indeed, the court characterized the plaintiffs in Title IX en-

forcement cases as “private attorneys general” (559 F.2d, at /0#/),

implying, erroneously, that Ms. Cannon and others in her position

are attempting to enforce public rather than personal interests.

except under specified circumstances, “no railroad may

discontinue any intercity passenger train... .” 45 U.S.C.

§ 564. In Cort, the statute declared that: “It is unlawful

for any national bank or any corporation . . . to make a

contribution or expenditure in connection with any elec-

tion...” 18 U.S.C. § 610. And in SIPC, the section at

issue stated that if a brokerage firm shows particular

indices of financial responsibility, “. .. SIPC ... may

apply to any court... for a decree adjudicating that

customers of such members are in need of the protection

provided by [the Act]... .” 15 U.S.C. § T8eee(d) (2)

As their language suggests, the statutes construed in

Amtrak, SIPC and Cort were Congressional responses to

macro-economic problems. The focus was on regulation

of industry, on forces and groups rather than individuals.

The Amtrak Act, for example, was a response to the

disastrous economic condition of the railroads. While

Congress was concerned with railroad passengers, it rec-

ognized that “a rational reduction of present service will

be required in order to save any passenger service.”

H.R. Rep. No. 91-1580 p. 3 (1970), reprinted in 1970

U.S. Code Cong. and Admin. News, at 4747, cited in

Amtrak, 414 U.S., at 463 (emphasis in original). Thus,

although the interests of the railroad-riding public in

general were to be benefited by the massive federal in-

volvement in the industry, no individual passenger’s

interests in having service on any particular route were

guaranteed.

nee ink A Nl

Similarly, the act creating SIPC (“SIPA”) was a re-

sponse to an economic crisis. The securities industry ex-

perienced a serious business contraction that led to the

failure or instability of many brokerage firms. S7PC, 421

U.S., at 415. Congress created a non-profit, private mem-

bership corporation with powers to institute a new form

of liquidation proceeding. While a primary purpose of

Congress in enacting SIPA was the protection of investors,

there was no guarantee that SIPC would intervene to save

any individual’s investment. In fact, the Court stressed

that whether a firm was to be liquidated in accord with the

special provisions of SIPA involved considerations of “pub-

lic interest”, and not solely the rights of individuals: “As

with Amtrak, so with SIPC, Congress has created a corpo-

rate entity to solve a public problem.” Jd., at 420.

Finally, in Cort, the statute involved was a penal statute

designed principally to serve a public interest—assuring

that “federal elections are free from the power of money.”

442 U.S., at 82. The protection of corporate shareholders

was at best a subsidiary purpose. 422 U.S., at 81.

Thus, in all three of these cases, there was Congressional

concern with the interests of particular groups—the invest-

ing public in Cort and SIPC, and railroad-riding public in

Amtrak— but the statutes were a response to an economic

or political crisis; the substantive provisions as well as

the means of implementing those provisions were based

upon quite different considerations than protection of the

rights of individuals.* For this reason, these cases did not

**Most of the other cases in which this Court has discussed the

problem of implication of a private right of action have similarly

involve situations in which general principles concerning

judicial enforcement of personal rights raised a presump-

tion in favor of private lawsuits. The Court of Appeals

therefore erred in viewing these cases as dispositive of the

present one.

2. The Cort Analysis. Not only are the results in

Amtrak, SIPC, and Cort not determinative of the present

controversy, but the mode of analysis employed in these

cases, explicated at some length in one of the cases, Cort,

supports if properly applied the availability of private

enforcement of § 901 of Title IX. In Cort, the Court set

out several factors relevant to determining the availability

of private actions enforcing federal statutes:

‘“‘First, is the plaintiff ‘one of the class for whose

especial benefit the statute was created.’ * * *—that is,

does the statute create a federal right in favor of the

plaintiff? Second, is there any indication of legisla-

tive intent, explicit or implicit, either to create such a

remedy or to deny one? * * * Third, is it consistent

with the underlying purposes of the legislative scheme

concerned statutes which do not expressly guarantee rights to indi-

viduals. Many of the cases have involved interpretation of criminal

provisions, included as part of complex economic regulatory

statutes. (Blue Chip Stamps v. Manor Drug Stores, 421 U.S. 723

(1975) (Securities Exchange Commission Rule 10b-5, 17 C.F.R.

§ 240.10b-5); Santa Fe Industries, Inc. v. Green, 430 U.S. 462

(1977) (Securities Exchange Commission Rule 10b-5, 17 C.F.R.

240.10b-5); Piper v. Chris Craft, 430 U.S. 1 (1977) (15 U.S.C.

78n (a)). J. I. Case Co. v. Borak, 377 U.S. 426 (1964) (15 U.S.C.

78n (a)); Texas & P.C. Co. v. Rigsby, 2A1 U.S. 33 (1915) (45

U.S.C. § 11). Others have involved interpretation of provisions spec-

ifying the powers and duties of governmental and quasi-govern-

mental entities: Wheeldin v. Wheeler, 373 U.S. 647 (1963) (Sub-

poenas; Legislative Reorganization Act of 1947, House Rule XI(1)

(q)(2)); T.L.M.E., Inc. v. United States, 359 U.S. 464 (1959) (rea-

sonable rates for motor carriers; 49 U.S.C. § 316 (b) & (d).

to imply such a remedy for the plaintiff? * * * And

finally, is the cause of action one traditionally rele-

gated to state law, in any area basically the concern

of the States, so that it would be inappropriate to infer

a cause of action based solely on federal law?” 422

US., at 78.

All four of these factors, properly understood, argue

strongly in favor of private judicial enforcement of § 901.

The answer to the first question, whether “the plaintiff

one of the class for whose especial benefit the statute was

enacted,” is not only plainly affirmative in this case, but is

the strongest reason for the availability of a private ju-

dicial remedy. For in Title IX, as we have shown above,

the essential purpose of the statute was to guarantee in-

dividual rights to equal educational opportunities. Thus,

not only are alleged discriminatees as a class protected

by Title IX, their individual protection is central to the

statutory scheme.

The second factor considered in Cort was: “is there any

indication of Congressional intent to create or deny a

remedy for members of the class to which the plaintiffs

belong?” Application of this factor poses little difficulty

in this case. For, Cort explicitly recognized that “. . . in

situations in which it is clear that federal law has granted

a class of persons certain rights, it is not necessary to show

an intention to create a private cause of action although

an explicit purpose to deny such cause of action would he

controlling.” Cort, supra, 422 U.S., at 82 (emphasis sup-

plied). There was no explicit intent to deny a private

cause of action under Title IX.

The Court of Appeals, however, nonetheless stressed “the

lack of any explicit or implicit intent to create a private

judicial remedy .. .” (559 F.2d at 1087 (emphasis supplied) )

and viewed the “‘express provision of a sophisticated scheme

of administrative enforcement . .. as an indication of an

implicit legislative intent to exclude any private judicial

remedies .. .” Jd. In essence, then the court below ap-

proached this case as one involving the usual methods of

statutory construction. While, in this case, consideration

of the legislative materials does indicate an intent to per-

mit private enforcement (Part 11(2), supra), as Justice

Harlan noted in Bivens, supra:

“The exercise of judicial power involved in the pri-

vate cause of action cases simply cannot be justified in

terms of statutory construction, see Hill, Constitu-

tional Remedies, 69 Col. L. Rev. 1109, 1120-1121 (1969) ;

nor did the Borak Court purport to do so. See Borak,

377 U.S. at 432-434. The notion of ‘implying’ a remedy,

therefore, ... can only refer to a process whereby the

federal judiciary exercises a choice among tradition-

ally available judicial remedies according to reasons

related to the substantive social policy embodied in an

act of positive law. See ibid., and Bell v. Hood, supra,

327 U.S., at 684.” 401 U.S., at 402 n.4 (emphasis sup-

plied).

Thus, as Cort recognized, the issue in private cause of

action cases is not, ordinarily, whether Congress intended

such actions but, rather, whether it expressly negated the

power of the judiciary to provide traditional remedies.

Moreover, it is obvious that legislative creation of an

enforcement mechanism may not, without more, be con-

strued as an “implicit” intent to forbid private actions;

indeed, Cort expressly so stated. 422 U.S., at 82 n.14. For,

while Congress does occasionally pass a statute providing

no enforcement mechanism at all (see, e.g., 42 U.S.C. §§ 1981

and 1982), such statutes are exceedingly rare; in most of

the cases in which private remedies have been “implied,”

those were one or more remedies included in the statute,

but such remedies were held not to be exclusive. See, e.g.,

Borak, supra; Rigsby, supra; Allen v. Board of Elections,

393 U.S. 544 (1969) ; Rosado v. Wyman, 397 U.S. 397 (1970).

Thus, the approach of the Court of Appeals to the second

Cort factor was premised upon a basic misunderstanding

of the role of the courts in cases involving the availability

of private remedies.

As to the third Cort factor,—whether the remedy sought

is consistent with the underlying purpose of the statutory

scheme—it is difficult to see how personal remedies would

be inconsistent with that scheme, where the purpose of the

statute is to guarantee individuals the right to equal op-

portunities. For example, in Allen , supra, the Court, noted

that the Voting Rights Act there construed included a

“guarantee ... that no person shall be denied the right to

vote for failure to comply with an unapproved new enact-

ment” Jd., at 557. While the Attorney General has the

power to enforce this guarantee,

“(t]he Attorney General has a limited staff and often

might be unable to uncover quickly new regulations . . .

The guarantee . . . might well prove an empty promise

unless the private citizen were allowed to seek judicial

enforcement of the prohibition. Jd., at 557.”

The Court of Appeals questions the appropriateness of

implying a private remedy for violation of § 901 rights

in light of the Congressional emphasis in § 902 of the

role of voluntary compliance in the administrative pro-

cedures for fund termination. However, a_ private

enforcement action not only furthers the Congressional

purposes of securing personal rights, but does not inter-

fere with the administrative fund termination mechanism.”

The actual experience under Title IX demonstrates that, cer-

tainly to the present time, HEW has not been able effectively to im-

plement the enforcement power it has under § 902, Until July, 1975,

the implementing —— for Title IX were not even promul-

gated. Thereafter, HEW refused, on the basis of insufficient re-

sources, to handle Title IX complaints regarding elementary and

secondary schools in seventeen southern and border states and,

as of October 1, 1976, regarding institutes of higher education as

well. Because of this sorry enforcement effort, some of the present

amici, along with other groups and individuals, filed suit against

HEW to compel the yyy of enforcement efforts. Women’s

Equity Action “ -¥ (“WEAL”) v. Mathews, Civ. Action No. 74-

1720 (D.DC.). settlement recently reached in that lawsuit

would, if effectively implemented, make HEW, for the first time, a

significant force in the enforcement of Title IX. See WEAL, supra,

Order of December 29, 1977). However, the history of the related

itigation concerning Title VI, Adams v. Califano, Civ. Action

No. 70-3095 (D.D.C.) illustrates that a succession of court orders

in that case has yet to result in effective enforcement of Title VI.

Preliminary evidence indicates that HEW has been similarly unable

to comply with the December 29, 1977 WEAL Order. Further

that Order, of course, does not eliminate the inherent problems

with §902 as a means of enforcing individual rights. See Part

II(1), supra.

°The case might be otherwise as regards a private action seeking

termination of funds. Bakke, supra 46 U.S.L.W., at 4936 n.25 ( Opin-

ion of Stevens, J.).

onan

In fact, the emphasis on voluntary compliance is served by

private lawsuits. For, that emphasis resulted from Con-

gressional concern with the drastic nature of fund termina-

tion. Vindication of personal rights through private law-

suits may help to avoid for fund termination.

The fourth Cort criterion—whether the cause of action

is “one traditionally relegated to state law, in an area

basically the concern of the states”—is also met in this

case, in a manner which not only permits but strongly

supports private enforcement. Federally created personal

rights are not a subject traditionally relegated to state

law. Bivens, supra. In the case of Title IX, the basic

federal concern is obvious: federal funds are financing the

educational programs involved, and gender-based dis-

crimination in educational institutions was perceived as a

nationwide problem requiring a nationwide solution. See

Part I(2), supra. To relegate individuals to widely-variant

state laws to vindicate their personal rights to be free

of sex discrimination in institutions receiving federal funds

would be an odd way indeed to implement a federal guar-

antee to all persons in the United States.

Thus, applying the Cort analysis properly yields

the result that the individual rights created in Title IX

can be enforced by private lawsuits. The Court of Appeals

erred in determining otherwise.

3. The dispositive cases. Our view of Cort is supported

by three pre-Cort cases which the Court of Appeals either

did not mention at all—Calhoon v. Harvey, 379 U.S. 134

(1964)—or mentioned only in passing—Allen, supra and

Rosado v. Wyman, supra. Indeed, these three cases, which

are consistent in their analysis with Cort and which Cort

did not purport to disturb, are, taken together, controlling

of this case.

In Allen, swpra and Calhoon, swpra, this Court con-

sidered provisions analogous to Title IX in that they were

directed at the individual rights." In both cases, the

primary inquiry was, as Cort later recognized, waether

there was express Congressional intent to deny the plaintiff

the traditionally available judicial remedies.

In Calhoon, there was an express provision in the Labor

Management Reporting and Disclosure Act of 1959, 29

U.S.C. 3401 et seqg., making the statutory remedy exclusive

for violation of Title IV’s election procedures. 379 U.S.,

at 137. The traditional judicial remedies were expressly

foreclosed, and only the Secretary of Labor was authorized

to bring suit to protect the rights of individual union

members.

%1In Calhoon, the relevant provision stated:

“.. . every member in good shall be eligible to be a

candidate and to hold (subject to section 504 of this title

and to reasonable qualifications uniformly imposed) and shall

have the right to vote for or otherwise support the candidate

or candidates of his choice, without being subject to penalty,

discipline, or improper interference or wry of any kind b

such organization or any member thereof.” 29 U.S.C. § 481(e¢)

(emphasis supplied ).

In Allen, the relevant provision stated:

“ .. and unless and until the court enters such judgment no

person shall be denied the right to vote for failure to comply

with such qualification, prerequisite, standard, practice, or

procedure . . .” 42 U.S.C. § 1973c (emphasis supplied).

In Allen, this Court was, as noted, concerned with the

Voting Rights Act—explicitly, with the provision requiring

political entities to submit alterations of voting qualifica-

tions or procedures to a district court or to the Attorney

General. 42 U.S.C. § 1973c. Like Title IX, the provision is

expressly directed at the protection of individuals: “No

person” could be denied the right to vote for failure to

comply with a qualification or procedure unless it had been

submitted for review as required by the statute.** As in

Title IX, there is an enforcement mechanism provided in

the Voting Rights Act: The Attorney General, upon a

complaint, could seek to enjoin the alteration. Allen, 393

U.S., at 558 n.21.

After noting that the purpose of the act was to guarantee

individuals the right to vote, the Court in Allen explored

only one question in determining whether private indi-

viduals should be allowed to sue to enforce their rights to

vote: Is enforcement by the Attorney General sufficient to

protect each citizen’s right to vote? Given the number of

individuals and of political entities, the Court had little

trouble in concluding that individuals must be allowed

to sue.

Thus, Calhoon and Allen demonstrate that, as Cort

later suggested, if a statute expressly creates personal

**Indeed, in Allen, the statutory language and structure are not

as closely limited to individuals as in this case. For, while the

general purpose of the Voting Rights Act was to protect the right

S"tnaividelis to bo tee af ai dhadammaen to aan, tee

statutory provision under which the plaintiffs sued was principally

a — ~ specified political Pm na ye to submit

enactmen ecting voting to a federal court or to Attorney

General of the United States. Me:

rights, private enforcement is available unless Congress

specifically provides otherwise or the statutory enforce-

ment mechanism was plainly designed for and capable

of protecting the individual rights guaranteed.

Rosado, supra, establishes the necessary corollary—that

provision of a fund termination mechanism as the means

of enforcing federal standards for grants is not to be

construed as either an intention to foreclose private suits

or an indication that such suits are fundamentally incom-

patible with the statutory enforcement scheme.

In Rosado, plaintiff welfare recipients sued to enforce

a directive in a federal statute to states participating in

the Aid to Families with Dependent Children program.”

The Court concluded they may seek relief. The only

question explored was whether the presence of the fund

termination mechanism was the exclusive remedy avail-

able. In concluding it was not, the Court emphasized the

role of federal courts where federal funds are involved:

“Tt is peculiarly part of the duty of this tribunal, no

less in the welfare field than in other areas of the law,

to resolve disputes as to whether federal funds allo-

eated to the States are being expended in consonance

with the conditions that Congress has attached to their

use.” Rosado, 397 U.S., at 423.

The Court therefore concluded that the existence of fund

termination authority does not foreclose private suits.

88“(The States shall] provide that by July 1, 1969, the amounts

used by the State to determine the needs of individuals will have

been adjusted to reflect fully changes in living costs since such

amounts were established, and . . . . any maximums that the State

imposes on the amount of aid re to families will have been pro-

portionately adjusted.” 42 U.S.C. § 602(a) (23).

5) |

Thus, Allen, Calhoon, and Rosado together establish

that where clearly articulated federal rights are guar-

anteed to individuals, and fund termination is not an

expressly exclusive remedy, it is the duty of federal

courts to afford those individuals the traditionally avail-

able judicial remedies. These cases inescapably point to

the conclusion that individuals should be allowed to sue

to protect their federal right to equal educational oppor-

tunities despite the existence of a fund termination

procedure.

CONCLUSION

For the reasons stated above, the judgment of the

Court of Appeals should be reversed.

Respectfully submitted,

Nancy Durr CAMPBELL Marsna S. Berzon

Marcia D. GrEENBERGER 177 Post Street

San Francisco, CA 94108

Marcaret A. Koun

Seeds Gites Caro. R. Gotvusock

Center for Law & Social Policy — = ve Gan tees

1751 N Street, N.W. 7324 Mission Street

Washington, D.C. 20036 Daly City, CA 94014

Attorneys for Amici Curiae

We wish to acknowledge the assistance of YoLANDA Orozco

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.