Amicus Curiae Brief — Jackson v. Birmingham Bd. of Ed.

.U

FILED

‘\

{xo} OCT 7 - 2004

age OFFICE OF THE CLERK

No. 02-1672

In the

Supreme Court of the Anited States

S

RODERICK JACKSON,

Petitioner,

V.

BIRMINGHAM BOARD OF EDUCATION,

Respondent.

e

On Writ of Certiorari

to the United States Court of Appeals

for the Eleventh Circuit

¢

BRIEF OF THE STATES OF ALABAMA,

DELAWARE, HAWAII NEVADA, OREGON,

SOUTH DAKOTA, TENNESSEE, UTAH, AND

VIRGINIA AS AMICI CURIAE

IN SUPPORT OF RESPONDENT

«

Troy King

Attorney General

Kevin C. Newsom

Solicitor General

Counsel of Record

STATE OF ALABAMA

Office of the Attorney General

11 South Union Street

Montgomery, Alabama 36130

October 7, 2004 (334) 242-7401

(Additional counsel for amici curiae are listed inside the tront cover.)

eT

M. JANE BRADY

ATTORNEY GENERAL

STATE OF DELAWARE

820 N. French St.

Wilmington, DE 19810

MARK J. BENNETT

ATTORNEY GENERAL

STATE OF HAWAII

425 Queen Street

Honolulu, Hawaii 96813

BRIAN SANDOVAL

ATTORNEY GENERAL

STATE OF NEVADA

100 N. Carson Street

Carson City, NV 89701

HARDY MYERS

ATTORNEY GENERAL

STATE OF OREGON

1162 Court Street N.E.

Salem, Oregon 97301

LAWRENCE E. LONG

ATTORNEY GENERAL

STATE OF SOUTH DAKOTA

500 E. Capitol

Pierre, SD 57501-5070

PAUL G. SUMMERS

ATTORNEY GENERAL

STATE OF TENNESSEE

P.O. Box 20207

Nashville, TN 37202-0207

MARK L. SHURTLEFF

ATTORNEY GENERAL

STATE OF UTAH

236 State Capitol

Salt Lake City, Utah 84114

JERRY W. KILGORE

ATTORNEY GENERAL

COMMONWEALTH OF

VIRGINIA

900 East Main Street

Richmond, VA 23219

QUESTION PRESENTED

Whether the private right of action for violations of Title

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

§§1681 et seq., encompasses redress for retaliation for

complaints about unlawful sex discrimination.

TABLE OF CONTENTS

QUESTION PRESENTED ..........2002..c.c.csesscscsersssesssesseesersssssnsessssees i

TABLE OF AUTHORITIEG...............-c-cscsccsrsssssenseesceseseseseseseoenees iii

TINTERREEST OR AIBC, nn .n2ccccccoccscssescscesceesscsssccssscsoscssesssnessssesseses 1

SUMMARY OF ARGUMENT ...........c.ccccssessssenensenenennensecnenennenaes 1

PN | | ne 3

I. The Issue Is Whether Congress Actually Intended

To Provide A Private Remedy For Retaliation,

Not Just Whether Title IX Can Plausibly Be

Construed To Prohibit Retaliation. .................:ccseseeeeeees 3

Il. Jackson Has Not Shown A Clear Congressional

Intent To Prohibit Retaliation, Let Alone To

Create A Private Remedy For Retaliation. .....................0: 7

A. Title IX’s Text Does Not Reflect A Clear

Congressional Intent To Reach Or Remedy

ee 7

B. Statutory Structure Does Not Indicate A Clear

Congressional Intent To Reach Or Remedy

PRG RRIIOOR, ccccccszccsssssescresscsscnsessmecunsscsesemssssesesessenenanesase 10

C. The “Context” Surrounding Title IX’s

Enactment Does Not Suggest A Clear

Congressional Intent To Reach Or Remedy

Pet, occ ccecceccssssesessscsrssesesosssnssssnsnsnsasssesesnsnassnseness 14

D. The Administrative Regulation That Jackson

Invokes Cannot Be Read To Create A Private

Remedy For Retaliation...................cc--sssesessnenennenenenees 20

Ill. Jackson’s Reliance On Title IX’s Perceived

“Purposes” And “Policies” Is Misplaced. ..................-+«. 25

IV. Any Extension Of A Private Remedy Beyond

Direct Victims Would Impermissibly Expand The

“Special Class” For Whose Benefit Title IX Was

TABLE OF AUTHORITIES

Cases

Alexander v. Choate, 469 U.S. 287 (1985) ........:.cssereceeeseseeeseeees 24

Alexander v. Sandoval, 532 U.S. 275 (2001) .........:ese+ese+0+0: passim

Atascadero State Hosp. v. Scanlon, 473 U.S. 234 (1985) ............ 30

Barnes v. Gorman, 536 U.S. 181 (2002) ...........:s-sesseseseseseseseneseneees 6

Barrows v. Jackson, 346 U.S. 249 (1953) .......ccccccsseesssssneeeesneeeeenes 17

Bazemore v. Friday, 478 U.S. 385 (1986)............ccessneeseseseseeeees 24

California v. Sierra Club, 451 U.S. 287 (1981)... 26, 29

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

Central Bank of Denver, N.A. v. First Interstate Bank of

Denver, N.A., 511 U.S. 164 (1994) ........ccccccecesesesesseees passim

Chevron U.S.A. Inc. v. Natural Resources Defense

Council, Inc., 467 U.S. 837 (1984) .......00ccseseseeseneseseseenersenees 24

Cohen v. Brown Univ., 101 F.3d 155 (1st Cir. 1996) ...........00000 12

Cast @. Adie, GB UG. 66 (GGG ccccccccccssecsssssssczsscssscsssnsnssscssesesesens 28

Davis v. Monroe County Bd. of Educ., 526 U.S. 629

(EGRESS REE tea Cea eae 4,6

Ernst & Ernst v. Hochfelder, 425 U.S. 185 (1976) ...........c0ceses00e: 10

Franklin v. Gwinnett County Pub. Schs., 503 U.S. 60

0 6

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

CFE cecenenssnanssssncssscssnesnensenrensnsvssncssrnnnasemsesuasamnssanncessenei 5, 6, 27

General Motors Corp. v. Tracy, 519 U.S. 278 (1997) .........0-0-se00 8

Great Am. Fed. Sav. & Loan Ass’n v. Novotny, 442 US.

366 (1979) .......... scusensuensenenansseqnmnsssseussstanesess 9

Grove City Coll. v. Bell, 465 U.S. 555 (1984), superseded

in part by statute, 20 U.S.C. §1687 .............cccesceseeeneseneees 14, 30

iv

Guardian Industries Corp. v. NLRB, 49 F.3d 317 (7th

9) 8

].1. Case Co. v. Borak, 377 U.S. 426 (1964).......-.cccccccereeeeneneees 5, 25

Lau v. Nichols, 414 U.S. 563 (1974) .......-.-cececesesesesesenenenenenenennenes 24

Lenard v. Argento, 808 F.2d 1242 (7th Cir. 1987) ..............-ceesee 9

Merrill Lynch, Pierce, Fenner & Smith, Inc. v. Curran,

456 U.S. 353 (1982) ..........-.-c-scccssssressesssessseessnnesssessnessnessnessees 28

Moses v. Washington Parish Sch. Bd., 276 F. Supp. 834

Oe Bt, CP ccc ccncecsecscnsncsnssesenrsnnmrenmemesnmaseesnmmssemnennnennase 19

Musick, Peeler & Garrett v. Employers Ins. of Wassau,

BD CRB, FB CII escccccszscssccssssssscnmssescesremsecensnnssssscsmsessopeansee 26

Nationsbank of N.C., N.A. v. Variable Annuity Life Ins.

Cig TED DG, FEB CRG recccnncscczssscsrscnssssssessnsncnsnscsessesnssesereess 24

NCAA 0. Smith, 525 U.S. 459 (1999) .........cccccecsesesssesesnenseenserenes 24

North Haven Bd. of Educ. v. Bell, 456 U.S. 512 (1982)........... 9,14

Olmstead v. Zimring, 527 U.S. 581 (1999) .........ccceccceseeesereneneneees 8

Pennhurst State Sch. and Hosp. v. Halderman, 451 U.S. 1

| 5,6

Russello v. United States, 464 U.S. 16 (1983) ..........-.ccececeseneneees 12

School Bd. of Nassau County v. Arline, 480 U.S. 273

ee 24

Sullivan v. Little Hunting Park, Inc., 396 US. 229

ee 2, 16, 17, 18

Texas & Pac. R. Co. v. Rigsby, 241 U.S. 33 (1916) ............-.c-000+ 29

Thompson v. Thompson, 484 U.S. 174 (1988) ............ccceceseeeeeees 26

Touche Ross & Co. v. Reddington, 442 US. 560 (1979) ...5, 20, 28

Transamerica Mortgage Advisors, Inc. v. Lewis, 444 US.

ee 5, 11, 26

Vv

United States v. Jefferson County Bd. of Educ., 380 F.2d

385 (Sth Cir. 1967) (em bannc)..........-ccsccecseserereenesnenenenneneneess 19

United States v. Medical Soc’s of S.C., 298 F. Supp. 145

ee 19

Virginia Bankshares, Inc. v. seid 501 U.S. 1083

QB) ecccececcessssescssnnsesnssavsennesnensecensonssevsesannsssessuseasseestenseseeens 4,5

Statutes and Regulations

Education Amendments of 1972, Tit. IX, 20 U.S.C.

PGES 68 ODD, cccssccsssenssssvsrssssssesssesenessenscenesuasreeneneaneesneans passim

Section 901, 20 U.S.C. §1681 .......7, 10, 12, 14, 21, 22, 23, 26

Section 902, 20 U.S.C. §1682 ...........-.crscsserneeseersenees 14, 22, 27

Civil Rights Act of 1964, Tit. VI, 42 U.S.C. §2000d et

ODN, canssemenerssenmeaveemmensennans Pusssusnesnnensesvenssseunasnensssusesvenmenees passim

Section 601, 42 U.S.C. §2000d............::sccsssseseseserereeerees 21, 22

Section 602, 42 U.S.C. §2000d-1 ............cccsssssssesseneererseseenes 22

Civil Rights Act of 1964, Tit. VII, 42 U.S.C. §2000e et

GBD, ccaseccsenenssemss ssssessnsesesssecennessnesssensssesnssensssenees 2, 10, 11, 12, 13

GB EA. GIB ascccnsecsssscsssvssnssscsssccssnvsressssnece 10, 11, 12, 13

GB A, GRR OG cecccsccnsssccscsvsensarensenescssssnmnensesessnssses 10, 13

SD EAL, GREG) ccccascscscesscessscsnsssnsvscscassssenscsenssusesnesensessvsseseseee 13

GB EIA, GI cscs enczsessnssenssssnnscecccnsssssensneensesvessenenrensnesesuseenes 16, 18

ee 6

GB DRA. GIG cccsnsescscsccsnessevemassssrenssseesnsssevessemnemensaestens 1,30

OB TEA... GER III ccrcccccnccvenssnsscocsssevenssnscsssvesssensssssnsssesenisee 13

Civil Rights Restoration Act of 1987, Pub. L. No. 100-

Sy TE GARR, FD CII secccscsccnnvscssnessescscnseveenemnessonssenasscenessene 30

The Notification and Federal Employee Anti-

discrimination and Retaliation Act of 2002, Pub.

L. 107-174, 116 Stat. 566 (2002)............0:scssseseseseseseeresnesesees 13

vi

Fe 24

ee 23

ee Ge 22, 23

34 C.F.R. §100.7(a)-(d)........000000 esbennepeiamamenenenennmemnatitie 22

FOG a Be cnenseeensmmmnenmemneann passim

le Ge erenerremmmennmmennntnseemnemnnn 23

SOG NS ceennsenimennnninmeme 23

a Ge cccnnmrercerscemennssrmenmenmecmneciiain 23

En 23

GF Ge cccnnnscesscsccsessesenssnssssssesersemnesranmesrsemmannamensntens 23

ee Sf 23

rt ea cscnasccccsnsesssossescssscesmsasesseresnnensansscusensecsessesseneeneats 23

it CD cccnencscennsecssssvensesssecsccessssenssnemsensensecovenseaneenssoscssese 27

Fei Sa crsceccccsnssccccnenscsssccsssnssessscsmanssmenessensessenesemsensnates 23

Ge: ie crcscesnerenessememansssncnessestensnsceemecnsenmennesesestets 23

Greets GD cnsnsscenmsnsenssnsnessaseesannnssseensensssnensesneusessennssnsnesenten 23

te ie resssnnensssssrernscsczsmsaensemeanscemsensnsensessnnnennesssasesees 23

nt eee 21, 22, 23, 27

Other Authorities

H.R. Rep. No. 92-554, reprinted in 1972 U.S.C.C.A.N.

a GU B FBV Oi ccczsesecssezncccsesezsnscenncnascesensenmnesnescemsnamseennes 16

S. Rep. 107-143 (Apr. 15, 2002) .......:cccsssssssssesesssesesnsesesesnsnsnsntes 13

117 Cong. Rec. 30403 (Aug. 6, 1971) .......-..cccescsnseresereneeenenenenes 16

117 Cong. Rec. 30407 (Aug. 6, 1971) .......:.cccccecerereenenneenes 16, 29

117 Cong. Rec. 30408 (Aug, 6, 1971) .......ccccccceseseseeeneneneeenensnenes 27

118 Cong. Rec. 5804 (Feb. 28, 1972)...........c.ccessseserenenennnnenes 16, 29

Vii

118 Cong. Rec. 5805 (Feb. 28, 1972)........:ssssssesesesesnenevenees 16, 29

118 Cong. Rec. 5807 (Feb. 28, 1972).........:csssssesesesesenesenees 16, 29

118 Cong. Rec. 5809 (Feb. 28, 1972)........cccsesseseseseseseeeseeees 16, 29

Discrimination Against Women: Hearings Before the

Special Subcomm. on Education of the House Comm.

on Educ. & Labor, 91st Cong., 2d Sess. (1970) ..........00000000 29

U.S. Department of Education Office of Civil Rights,

Annual Report to Congress: Fiscal Years 2001 and

2002 (July 2003), www.ed.gov/about/offices/

FOES CTI cresescsensacsscsnsnasescecnsecessscesesessscmssesnasesens 27

Oxford English Dictionary (2d ed. 1989).........ssssesesesvesesnevesees 8

Black’s Law Dictionary (7th ed. 1999) ........ccccceseseseseseenesessneseneneens 7

Webster's Third New International Dictionary (1986)............00+« 8

Reed Dickerson, Statutory Interpretation: Dipping Into

Legislative History, 11 Hofstra L. Rev. 1125 (1983)........... 15

John F. Manning, The Nondelegation Doctrine as a

Canon of Avoidance, 2000 Sup. Ct. Rev. 223

GRITS, GBI cccsccssessesssseczssssesnsersvensnsecsencncssssustnssesescenssese 15

INTEREST OF AMICI

Congress has expressly abrogated States’ sovereign

immunity from private claims brought under Title IX. See 42

U.S.C. §2000d-7(a). Accordingly, like the local school board

at issue in this case, the amici States are subject to Title IX’s

prohibition on gender “discrimination” and are liable for

any injunctive relief, monetary damages, and attorneys fees

that may arise out of Title IX suits. As frequent defendants,

the amici States have a strong interest in ensuring that the

implied private right of action recognized in Cannon v.

University of Chicago, 441 U.S. 677 (1979), is maintained

within its intended boundaries and that the specific

condition on the acceptance of federal funds imposed under

Title IX - namely, that recipients not “discriminat[e]” on the

basis of sex - is not casually extended to a new and different

category of conduct.

SUMMARY OF ARGUMENT

1. Jackson’s burden here is to prove that Congress

actually, affirmatively, and clearly intended to create a

private right of action for retaliation, not merely that Title IX

can plausibly be construed to prohibit retaliation. This

Court’s cases make clear that a rigorous showing of

congressional intent is required not only to demonstrate the

existence of an implied private remedy as an initial matter,

but also to justify its scope. Additionally, because Title IX is

a Spending Clause statute, Jackson must show that the

funding condition he seeks to enforce - a private remedy for

retaliation - is stated “unambiguously” in the statute.

2. None of the traditional indicia of statutory meaning

suggests an affirmative congressional intention to reach or

remedy retaliation. First, Title IX’s text does not mention

retaliation; it refers only to “discrimination,” which

dictionaries and case law alike confirm is a comparative

term. Jackson, of course, does not allege that he was

disadvantaged in a comparative sense - i.e., in relation to

2

someone else. Second, Jackson's position finds no support in

statutory structure. Indeed, the most compelling piece of

structural evidence - the fact that Title VII addresses

retaliation both (:} expressly and (ii) separately from

discrimination - cuts the other way. Third, there is nothing

in the “context” surrounding Title IX’s enactment - the

legislative history, this Court's decision in Sullivan v. Little

Hunting Park, Inc., 396 U.S. 229 (1969), or contemporary Title

VI precedent - that evinces any affirmative congressional

intention to reach retaliation. Among other problems,

Jackson’s contextual arguments all share a common failing

in that they rest entirely on inferences from congressional

silence. Finally, the administrative regulation on which

Jackson relies, 34 C.F.R. §100.7(e), cannot support a private

remedy for retaliation for the simple reason that it is not -

and does not even purport to be - an “authoritative

interpretation” of Title IX’s ban on “discrimination.”

3. Without any meaningful support in the text, structure,

or context of Title IX itself - or, indeed, in the only Title IX

regulation that even mentions retaliation - Jackson cannot

prevail here on public-policy grounds. Initially, this Court's

implied-right-of-action cases establish that arguments about

a private remedy’s “utility” or “desirability” are irrelevant;

what matters is Congress’ intent. Moreover, and contrary to

Jackson’s assertions, this case does not present a binary

choice between (i) recognizing a private right of action for

retaliation and (ii) leaving whistleblowers wholly

unprotected. There remains the option of administrative

enforcement - the remedy that Congress itself embraced

when it enacted Title IX.

4. In any event, extension of Title IX’s private remedy

would be particularly inappropriate here. Jackson, a male

basketball coach, does not himself claim to have been

subjected to gender discrimination. Accordingly, he is not

within the “special class” for whose benefit Title IX was

enacted - namely, those persons (particularly women) who

themselves have suffered direct gender discrimination.

3

ARGUMENT

The question here is whether, in the circumstances

presented, Title IX entails a private right of action for

retaliation. The sole criterion for answering that question is

Congress’ intent. None of the traditional indicia of statutory

meaning - text, structure, legislative history, or even agency

construction - suggests any affirmative intention to make

retaliation privately actionable.

I. The Issue Is Whether Congress Actually Intended To

Provide A Private Remedy For Retaliation, Not Just

Whether Title IX Can Plausibly Be Construed To

Prohibit Retaliation.

From the very outset, Jackson stakes his position on a

particular premise - namely, that this case isn’t really about

whether Title IX entails a private right of action for retaliation

but, instead, merely whether Title IX can be construed to

prohihit retaliation. Pet. Br. 10-11. So long as Title IX can be

read to prohibit retaliation, Jackson says, an implied private

right of action to enforce that prohibition follows as a matter

of course. And that, he claims, is because this Court

recognized an implied right of action covering a Title IX

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

Jackson's strategy in pitching the case as being about the

“substantive scope” of Title IX (Pet. Br. 10), and not about

implied rights of action, is clear enough. In order to prevail,

he needs to avoid the rigorous, intent-based standard that

this Court has developed over the years to govern the

implied-right-of-action analysis. See, e.g., Alexander v.

Sandoval, 532 U.S. 275, 286-87 (2001). Despite some surface

appeal, Jackson’s arguments about congressional intent are,

with respect, pretty flimsy; to the extent his statutory

arguments touch on the issue of legislative intent at all, they

rely almost entirely on inferences from congressional silence.

Presumably recognizing that the evidence he has will not

stand up to Sandoval-like scrutiny, Jackson seeks to turn this

into a garden-variety statutory interpretation case. His

effort is misguided, for two reasons.

4

1. To begin with, this Court has already rejected the

view that the only issue in a case like this is the “substantive

scope” of the underlying statute. In Virginia Bankshares, Inc.

v. Sandberg, 501 U.S. 1083 (1991), for instance, the Court

pointedly criticized cases from the implied-right-of-action

heyday for having never focused their “probe of the

congressional mind” on “private rights of action, as distinct

from the substantive objects of the legislation.” The Court

stressed the importance under modern doctrine “of

enquiring specifically into intent to authorize a private cause

of action.” Jd. at 1103; see also, e.g., Davis v. Monroe County

Bd. of Educ., 526 U.S. 629, 639 (1999) (C urt must “do more

than define the scope of behavior that Title IX proscribes”;

must additionally determine whether conduct alleged

“support[s] a private suit for money damages”).

Jackson cannot side-step this “heightened concern” for

congressional intent, Virginia Bankshares, 501 U.S. at 1103,

simply by citing to Cannon. It is just not true that “[t]his case

does not require the expansion of th[e] cause of action”

recognized in Cannon. Pet. Br. 34.10. Cannon involved a

traditional “discrimination” claim (the plaintiff there

complained of unequal admissions practices for men and

women), not a retaliation claim. It had nothing to say - one

way or the other - about retaliation. Cannon is thus properly

read to recognize an implied private right of action for core

Title IX discrimination claims; it cannot fairly be understood

to create a one-size-fits-all private remedy for any practice

that Title IX might plausibly be construed to prohibit.

The separation-of-powers concerns that animate this

Court's implied-right-of-action jurisprudence, see, ¢.g.,

Cannon, 441 U.S. at 730-31, 743, 746 (Powell, J., dissenting),

require a rigorous showing of congressional intent not only

to demonstrate the existence of an implied private remedy

as an initial matter, but also to justify its scope. Again,

Virginia Bankshares is illustrative. There, this Court

addressed the question whether a minority shareholder

could sue under the implied private right of action for §14(a)

of the Securities Exchange Act. The Court acknowledged J.I.

5

Case Co. v. Borak, 377 U.S. 426 (1964), which had initially

recognized an implied remedy in §14(a), but it did not stop

there; instead, it went on to detail the showing a plaintiff

must make to “extend the scope” of an existing right of

action. 501 U.S. at 1102.

“Assessing the legitimacy of any such extension or

expansion,” the Court held, “calls for the application of

some fundamental principles governing recognition of a

right of action implied by a federal statute ....” Id. First, the

Court emphasized that “recognition of any private right of

action for violating a federal statute must ultimately rest on

congressional intent to provide a remedy.” Id. (citing Touche

Ross & Co. v. Reddington, 442 U.S. 560, 575 (1979)). “From

this,” the Court continued, “the corollary follows that the

breadth of the right once recognized should not, as a general

matter, grow beyond the scope congressionally intended.”

Id. Accordingly, even where (as here) the issue is not initial

recognition, but expansion, a plaintiff faces a “serious

obstacle” where he cannot demonstrate a “manifestation of

intent to recognize a cause of action (or class of plaintiffs) as

broad as [his] theory” would entail. Id.

Jackson thus bears the burden here of showing

“affirmative,” Sandoval, 532 US. at 293 n8, and

“persuasive,” Transamerica Mortgage Advisors, Inc. v. Lewis,

444 US. 11, 20 (1979), evidence of Congress’ intent to create

in Title IX a private right of action for retaliation.

2. Separately, as a Spending Clause statute, see Gebser v.

Lago Vista Indep. Sch. Dist., 524 U.S. 274, 286 (1998), Title IX is

subject to the clear-statement rule articulated in Pennhurst

State School.and Hospital v. Halderman, 451 U.S. 1 (1981). That

rule, which exists to ensure that a recipient of federal

funding exercises its choice to accept funds “knowingly”

and “cognizant of the consequences of [its] participation,”

requires that any enforceable condition on the receipt of

funds be stated “unambiguously” in the statute. Id. at 17.

Here, of course, the condition that Jackson seeks to

enforce is a private remedy for retaliation. The question,

accordingly, is not simply whether Title IX’s generic

6.

reference to “discrimination” might plausibly be interpreted

to reach retaliation. Rather, the question in a case like this is

whether the funding recipient “had adequate notice that [it]

could be liable for the conduct at issue” - here, retaliation.

Davis, 526 U.S. at 640 (emphasis added). Jackson must

therefore show that private liability for retaliation,

specifically, so plainly arises from “the clear terms of the

relevant statute,” Barnes v. Gorman, 536 U.S. 181, 187 (2002),

that it can be said to be “unambiguous[],” Pennhurst, 451

U.S. at 17, or “obvious,” Gebser, 524 U.S. at 287. That, we

respectfully submit, he cannot do.

There is one final point: It would not be enough for

Jackson to show (even if he could) that Title IX

unambiguously prohibits retaliation. Funding recipients are

also entitled under Pennhurst to clear notice of how 4

retaliation prohibition would be enforced - 1.e., whether by

administrative action alone or by private suits, as well. Not

only would a private right of action add a new layer of

enforcement, leading, at the very least, to greater

administrative costs, it would also bring into play an

altogether different range of remedies - most notably,

damages, see Franklin v. Gwinnett County Pub. Schs., 503 U.S.

60, 76 (1992), and attorneys fees, see 42 U.S.C. §1988(b),

neither of which is available in an administrative

enforcement proceeding. It is easy to see how that

additional exposure could affect a recipient's decision

whether to accept funding. See Gorman, 536 US. at 188

(“Without doubt, the scope of potential damages liability is

one of the most significant factors a school would consider

in deciding whether to receive federal funds.” (quoting

Davis, 526 U.S. at 656 (Kennedy, J., dissenting)). Pennhurst's

clear-statement rule thus requires Jackson to show

“unambiguous[]” evidence not only that Title IX prohibits

retaliation, but also that Congress intended to provide a

private right of action for retaliation.

7

II. Jackson Has Not Shown A Clear Congressional Intent

To Prohibit Retaliation, Let Alone To Create A Private

Remedy For Retaliation.

None of the traditional indicia of statutory meaning

signals a congressional intention to create in Title IX a

private right of action for - or, for that matter, even to

prohibit - retaliation. Each of Jackson’s arguments, we

admit, seems reasonable enough on the surface. But none

withstands serious scrutiny. Even if Jackson's responsibility

here were simply to piece together a sound interpretation of

Title IX, we would say he had come up short. He certainly

has not carried his burden under the more rigorous

interpretive standards applicable to this case.

A. Title IX’s Text Does Not Reflect A Clear

Congressional Intent To Reach Or Remedy

Retaliation.

In relevant part, §901 states that “[n]o person in the

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

discrimination under any education program or activity

receiving Federal financial assistance.” 20 U.S.C. §1681(a).

As the court of appeals correctly observed, §901 “makes no

mention of retaliation at all.” Pet. App. 20a. While not

disputing that fact, Jackson focuses on the word

“discrimination” and asserts that retaliation is “simply one

variant” of that “discrimination.” Pet. Br. 13. Jackson,

however, offers nothing in the way of sustained textual

analysis to support that assertion (which, incidentally, the

Solicitor General seems to rejec\. at least as a thoroughgoing

textual proposition, see U.S. Br. 10 n.1). In fact, the concepts

of “discrimination” and “retaliation” are fundamentally

different, both as a matter of plain meaning and as a matter

of ordinary legal usage.

Standard English and legal dictionaries alike make clear

that “discrimination” is a comparative term; it refers to the

perception or treatment of one person or thing in relation to

others. See, e.g., Black's Law Dictionary 479 (7th ed. 1999)

(“Differential treatment; esp., a failure to treat all persons

8

equally when no reasonable distinction can be found

between those favored and those not favored.”); 4 Oxford

English Dictionary 758 (2d ed. 1989) (term “discriminate”

means “[tlo make a distinction; to perceive or note the

difference (between things)” or “[t]o make an adverse

distinction with regard to; to distinguish unfavourably from

others”); |Vebster’s Third New International Dictionary 648

(1986) (term “discriminate” mexns to “recognize as being

different from others ...: distinguish between or among”).

The case law is to the same effect. This Court has

recognized, for instance, that “[c]onceptually, of course, any

notion of discrimination assumes a comparison of

substantially similar entities.” General Motors Corp. v. Tracy,

519 US. 278, 298 (1997). And indeed, pointing to this

Court's precedent, Jackson himself agrees that the “normal

definition of discrimination” is the “differential treatment of

similarly situated groups.” Pet. Br. 13 (quoting Olmstead v.

Zimring, 527 U.S. 581, 614 (1999) (Kennedy, J., concurring in

the judgment)); see also Zimring, 527 U.S. at 616-20 (Thomas,

]., dissenting) (collecting cases defining discrimination as a

comparative concept); Guardian Industries Corp. v. NLRB, 49

F3d 317, 319 (7th Cir. 1995) (Easterbrook, J.)

(“Discrimination is a form of inequality, which poses the

question: ‘equal with respect to what?’.”).!

The problem for Jackson is that he does not claim to have

been disadvantaged in a comparative sense - 1.¢., to have

been treated unfairly in relation to someone else. Rather,

Jackson's beef is with the school board’s treatment of him in

an absolute sense; specifically, he contends that he was

given “negative evaluations” and was ultimately

“terminated” from his coaching duties. J.A. 10. Unlike a

' There is no basis here for departing from the ordinary meaning of

“discrumination” as a comparative concept. In adopting a specialized

understanding of the term “discrimination” as including the seemingly

non-comparative practice of isolation, the majority in Zimnng pointed to

the ADA’s statutory findings, which expressly define isolation as a

“form[] of discrimination.” /d. at 588-89, 600. Title IX’s text, by contrast,

provides no justification, in findings or elsewhere, for straying from the

usual, equality-based understanding of the term “discrimination.”

9

typical “discrimination” claim, consideration of Jackson's

complaint requires no knowledge of (and thus offers no

allegations concerning) others’ circumstances. Assuming

the truth of the facts stated in the complaint, what happened

to Jackson was wrong; it was unjustified - but it was not

“discrimination.” Cf North Haven Bd. of Educ. v. Bell, 456

U.S. 512, 521 (1982) (“[A] female employee who works in a

federally funded education program is ‘subjected to

discrimination under’ that program if she is paid a lower

salary for like work, given less opportunity for promotion, or

forced to work under more adverse conditions than are her

male colleagues.” (emphasis added)).

We are not splitting hairs here. Dictionary definitions

aside, there is a sense in the legal vernacular in which

everyone knows that discrimination and retaliation are

distinct concepts. Judge Posner has described them as

quintessentially distinct. Addressing the question whether a

plaintiff's false-arrest and excessive-force claims were

related for attorneys-fees purposes, Judge Posner explained

that they were “as different as a claim of discrimination and

a claim of retaliation for opposing that discrimination.”

Lenard v. Argento, 808 F.2d 1242, 1246 (7th Cir. 1987); see also

Great Am. Fed. Sav. & Loan Ass'n v. Novotny, 442 U.S. 366, 387

(1979) (White, J., dissenting) (right “to be free from

retaliation” is “clearly” distinct from the right “not to be

discriminated against”). And indeed, Jackson’s pleadings

show that even he appreciates the difference. In its motion

to dismiss, the school board, unable to make out the

particulars of Jackson’s complaint, assumed that he was

attempting to assert both a “discriminat[ion]” claim and a

“retaliation” claim. J.A. 13. In response, Jackson answered

that, no, he was not raising a “discriminat[ion]” claim, only a

“retaliation” claim. J.A. 25.

This Court faced - and rejected - a textual argument

very much like Jackson’s in Central Bank of Denver, N.A. v.

First Interstate Bank of Denver, N.A., 511 US. 164 (1994). The

question there was whether the right of action that courts

had found implied in §10(b) of the Securities Exchange Act

10

and Rule 10b-5 could be extended to permit suits for aiding

and abetting. In answering that question, the Court started

from the premise that a “private plaintitf may not bring a

10b-5 suit against a defendant for acts not prohibited by the

text of §10(b).” Id. at 173 (quoted in Sandoval, 532 U.S. at 285-

86). The primacy of statutory text, the Court observed,

“bode[d] ill” for the plaintiffs because “the language of

Section 10(b) does not in terms mention aiding and

abetting.’” Id. at 175. The same, of course, is true here; Title

IX “does not in terms mention” anything about retaliation.

Like Jackson here, the Central Bank plaintiffs sought to

“overcome th{at] problem” by pointing to arguably broad

statutory language. As Jackson invokes the term

“discrimination,” the plaintiffs there pointed to the phrase

“directly or indirectly,” which they said could be read to

cover aiding and abetting. Id. at 175-76. The Court rejected

the effort to finesse the statute’s ordinary meaning there, and

it should do so here, as well. Jackson’s loose construction of

the term “discrimination,” like other attempts at loose

construction before his, would impermissibly “add a gloss

to the operative language of the statute quite different from

its commonly accepted meaning.” Id. at 174 (quoting Ernst

& Ernst v. Hochfelder, 425 U.S. 185, 199 (1976)).

B. Statutory Structure Does Not Indicate A Clear

Congressional Intent To Reach Or Remedy

Retaliation.

Jackson’s reading of §901 finds no support in the

statutory structure. In fact, the most compelling piece of

structural evidence cuts the other way.

1. As the court of appeals emphasized, the absence of an

anti-retaliation provision in Title IX stands in stark contrast

to this Nation’s other major gender-discrimination statute,

Title VIL See Pet. App. 20a. In Title VII, Congress dealt with

employment discrimination in one statutory section, 42

U.S.C. §2000e-2, and then addressed retaliation, expressly, in

an altogether separate section, 42 US.C. §2000e-3(a). Title

VI's structure teaches two things about Title IX’s meaning.

11

First retaliation is not, as a textual matter, “simply one

variant of discrimination.” Pet. Br. 13. If it were, Title VII's

express prohibition of retaliation would be superfluous,

having been subsumed under §2000e-2's general anti-

discrimination provision. Second, when Congress wants to

address retaliation, it knows how to do so and does so

expressly. “The fact that [Congress] enacted no analogous

provisions in the legislation here at issue strongly suggests

that Congress was simply unwilling to impose any potential

monetary liability on a private suitor” for retaliation.

Transamerica, 444 US. at 21.

The implication that arises from Title VII's structure -

that Title IX does not reach, much less remedy, retaliation -

is in no way undermined by the fact that Titles VII and IX

originated in separate Acts. For one thing, this Court has

never confined itself to the provisions of the statute in

question in determining whether the express prohibition of

conduct in one place suggests its exclusion in another. In

Central Bank, for instance, in refusing to extend the scope of

§10(b)’s implied right of action to include aiding-and-

abetting liability, the Court looked to statutes wholly outside

the securities-law context; even the fact that those seemingly

far-flung statutes explicitly addressed secondary liability,

the Court concluded, weighed against the extension of

§10(b)'s implied remedy. See 511 U.S. at 182-83 (reviewing,

e.g., Internal Revenue Code, National Bank Act, Federal

Reserve Act, and Packers and Stockyards Act); see also

Transamerica, 444 US. at 20-21 (looking to 1933 Securities Act

and 1934 Securities Exchange Act to construe 1940

Investment Advisors Act). As in Central Bank, context and

structure indicate that Congress has “taken a statute-by-

statute approach,” 511 US. at 182 - here, to the issue of

retaliation. Title VII expressly addresses it; Title IX does not.

Moreover, the structural inference is stronger here than

Central Bank, for two reasons. First, Title VII and Title [IX are

derived from separate Acts only in the most formal sense.

Title IX, of course, “was patterned after Title VI of the Civil

Rights Act of 1964.” Sandoval, 532 U.S. at 280 (quoting

12

Cannon, 441 U.S. at 694). When Congress enacted the Civil

Rights Act of 1964, which included both Titles VI and VII, it

addressed retaliation only in Title VII. Where, as in that

instance, “Congress includes particular language in one

section of a statute but omits it in another section of the same

Act, it is generally presumed that Congress acts intentionally

and purposely in the disparate inclusion or exclusion.”

Russello v. United States, 464 U.S. 16, 23 (1983). That same

presumption - that Congress intentionally omitted any

prohibition on retaliation from Title VI - carries over to Title

VI's clone, Title IX.

Second, although Titles VII and IX technically arise from

separate Acts, and although Title IX is principally patterned

on Title VI, Congress clearly had its eye on Title VII when

enacting Title IX. Indeed, Congress expressly modeled at

least one provision of Title IX - §901(b), designed to prohibit

quotas, 20 U.S.C. §1681(b) - on a provision of Title VII, 42

U.S.C. §2000e-2(j). See Cohen v. Brown Univ., 101 F.3d 155,

174-75 (1st Cir. 1996) (“Section 1681(b) was patterned after

§703(j) of Title VII ....”). Plainly, then, Congress knew how

to incorporate Title VII standards and provisions when it

wanted to. It did not do so with respect to retaliation.

2. Jackson and his amici offer two structural arguments

of their own, neither of which is persuasive. First, Jackson

emphasizes that §901’s prohibition of discrimination “is

followed by a list of nine detailed exceptions.” Pet. Br. 12.

“That structure,” he asserts, “indicates that Congress

intended to prohibit all types of discrimination except for

the particular forms of discrimination expressly excepted

from Title IX’s coverage.” Pet. Br. 13. If the exceptions

catalogued in §901(a)(1)-(9) really did address particular

“forms of discrimination,” as Jackson says, his argument

might have some force. But they don’t. Instead, the

exceptions are for particular types of institutions - certain

religious schools, traditionally single-sex schools, fraternities

and sororities, and so on. Jackson seeks to draw an inference

about the kinds of discrimination prohibited by Title IX from

13

the kinds of institutions exempted from Title IX’s scope.

With respect, there is no logic in that.?

Second, Jackson points to a veterans-benefits statute, 38

U.S.C. §516(d), which refers, in part, to “discrimination,

including retaliation.” Pet. Br. 13. That provision, Jackson

says, demonstrates that retaliation is “a form of”

discrimination. There are two problems. As an initial

matter, it seems to us just as likely that the structural

inference runs in the opposite direction: Section 516(d)

simply shows that when Congress wants to define

discrimination to include retaliation, it does so expressly.

Indeed, Jackson's reliance on §516(d) undermines any textual

argument he might be trying to make. If retaliation really

were just part and parcel of the term “discrimination,” then

the phrase “including discrimination” in §518(d) would be

redundant. The second problem is that just as often,

Congress treats “discrimination” and “retaliation” as distinct

wrongs giving rise to distinct claims. For one notable

example, see The Notification and Federal Employee

Antidiscrimination and Retaliation Act of 2002, Pub. L. 107-

174, Title Il, 116 Stat. 566 (2002) (“Discrimination and

Retaliation”), and the committee report accompanying the

same, S. Rep. 107-143, at 7 (Apr. 15, 2002) (referring to

“discrimination or retaliation complaints”). See also, e.g., 44

U.S.C. §3507(e)(3)(B) (“retaliation or discrimination”).

2 Jackson's effort to obscure the unfavorable comparison to Title VII

suffers from a similar logical flaw. Jackson contends that Titles VII and Ix

are “crucial[ly]” different in that Title IX speaks to “discrimination”

generally while Title VII “spells out in detail the specific forms of conduct

that violate the statute” Pet. Br. 34. Thus, Jackson insinuates, courts

shouldn't expect the same level of precision with respect to retaliation in

Title IX that Title VII offers. The problem, again, is that Title VII does not

detail the “specific forms of conduct” that constitute “discrimination”

under the statute. Instead, it specifies areas (hiring and firing,

compensation, etc.) and organizations (employment agencies, labor unions,

etc.) in which “discrimination” is prohibited. Fundamentally, Title VI

separately prohibits two kinds of conduct: discrimination, 42 U.S.C.

§2000e-2, and retaliation, 42 U.S.C. §2000e-3(a). Title IX only addresses

the former.

14

C. The “Context” Surrounding Title IX’s Enactment

Does Not Suggest A Clear Congressional Intent To

Reach Or Remedy Retaliation.

Jackson’s argument from contemporary “context” is

likewise bereft of any “affirmative” evidence, see Sandoval,

532 U.S. at 293 n.8, that Congress intended to create a private

right of action for (or, for that matter, even to prchibit)

retaliation. Jackson relies on three specific aspects of the

context in which Title IX was enacted. None is availing.

1. Legislative History. Title IX’s legislative history is

“sparse.” Grove City Coll. v. Bell, 465 U.S. 555, 566 (1984),

superseded in part by statute, 20 U.S.C. §1687. Because the

principal sections of Title IX - §§901 and 902 - “originated as

a floor amendment, no committee report discusses the

provisions.” North Haven, 456 U.S. at 527. Accordingly, this

Court has said that the “only authoritative indications of

congressional intent regarding the scope of §§901 and 902”

are the floor statements of Senator Birch Bayh, Title IX’s

Senate sponsor. Id.

Jackson, though, does not rely (nor could he, as we will

show) on Senator Bayh’s statements to demonstrate that

Congress intended Title IX to reach retaliation. Instead,

Jackson points to what he calls “extensive testimony”

presented to a House subcommittee during the summer of

1970. Pet. Br. 19-20; see also, e.g., U.S. Br. 5, 14 (“substantial

evidence”); ABA Br. 8-9 (“substantial testimony”). That

testimony, Jackson says, shows that “sex discrimination in

educational programs frequently takes the place of

retaliation.” Pet. Br. 19. Even aside from the fact that “[t]he

proposal on which the hearings were held ... never emerged

from committee,” North Haven, 456 U.S. at 523 n.13, there are

two problems with Jackson’s reliance on those hearings.

The first problem is specific to the hearing testimony

itself - and, in particular, to the characterization of that

testimony as “extensive” and “substantial.” Jackson and his

amici have pointed to snippets of five witnesses’ statements

to the House subcommittee as indicative of Congress’ intent.

15

See Pet. Br. 19-20; U.S. Br. 15-16. Even if those five witnesses

had testified expressly that Congress should prohibit or

provide a private remedy for retaliation - none did - any

inference of congressional intent would be pretty weak.

Consider that the hearings from which Jackson and his amici

have mined their testimony (i) spanned seven days; (ii)

included 183 statements, letters, articles, etc., from 84

witnesses, commentators, etc.; and (iii) filled 1261 transcript

pages. Against that backdrop, a handful of anecdotes about

retaliation, without any express call for congressional action

targeting it, doesn’t amount to much.

The second problem is one endemic to any attempted

reliance on hearing testimony as evidence of Congress’

intent. This Court has consistently accorded little, if any

weight, to such testimony. See generally John F. Manning,

The Nondelegation Doctrine as a Canon of Avoidance, 2000 Sup.

Ct. Rev. 223, 264 n.193 (collecting cases). And with good

reason. Even aside from its other well-documented

shortcomings, see Reed Dickerson, Statutory Interpretation:

Dipping Into Legislative History, 11 Hofstra L. Rev. 1125, 1131-

32 (1983), hearing testimony in and of itself tells us nothing

about how Congress responded - or didn’t, as the case may

be - to the witnesses’ concerns.

Jackson’s point seems to be that, having heard the five

witnesses’ testimonies, snippets of which recounted acts of

retaliation, Congress must have intended to remedy

retaliation. As the Solicitor General puts it, “[t]here is no

reason that Congress would have responded to that

evidence” by failing to address it. U.S. Br. 16; see also id. at 6

(“There is no reason that Congress would have wanted ....”).

But that is not an argument based on any “affirmative”

evidence of congressional intent. It is an argument based, at

most, on an inference from congressional silence. At the end

of the day, neither Jackson nor any of his amici (including,

with respect, Senator Bayh) has pointed to a shred of

evidence in the legislative record of any actual congressional

intent to reach retaliation. See Bayh Br. 13-18.

16

Nor has our own review revealed any such evidence.

Two particular aspects of Title IX’s legislative history are

worth noting. First, the House report that was the

culmination of the 1970 hearings makes no mention of

retaliation. On the contrary, in summarizing the hearing

testimony (and, in that connection, the House precursor to

Title IX), the report refers to the prohibited “discrimination”

exclusively in the usual, comparative, equality-based sense.

See H.R. Rep. No. 92-554, reprinted in 1972 U.S.C.C.A.N. 2462,

2511-12 (Oct. 8, 1971) (targeted “discrimination” entails, e.g.,

requiring women “to meet higher admission standards than

men” and “sex differences in rank and salary”). Second, the

evidence from the floor debates is uniform’y to the same

effect. Time and again, Senator Bayh :eferred to the

“discrimination” with which Title IX was con“erned in terms

of the “differential treatment” of, and “disparit[ies]”

between, men and women. E.g., 118 Cong. Rec. 5804, 5805,

5807 (Feb. 28, 1972); 117 Cong. Rec. 30407 (Aug. 6, 1971). To

make his point, Senator Bayh repeatedly cited statistics

comparing men’s and women’s circumstances with respect

to hiring, promotions, pay, admissions, enrollment, and

scholarships. 118 Cong. Rec. 5804, 5805, 5809. Indeed, at

one juncture, having offered one of these line-by-line

comparisons, Senator Bayh stated that this was the “type of

discrimination to which I refer.” 117 Cong. Rec. 30403.

2. The Sullivan Decision. Jackson and his amici likewise

seek to rely, as an aspect of contemporary context bearing on

congressional intent, on this Court's decision in Sullivan v.

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

says, “held” that 42 US.C. §1982, which prohibits

discrimination in property transactions, “also protects from

retaliation those who complain about such discrimination,”

and thus “established th[e] principle” that statutory bans on

discrimination “are construed to include prohibitions on

retaliation.” Pet. Br. 8, 14. From Sullivan, Jackson asserts, it

can be inferred that Congress “presumably intended” Title

IX’s prohibition on “discrimination” to entail an unstated

remedy for retaliation, as well. Pet. Br. 21. As put by the

17

Solicitor General, in the light of Sullivan, Congress “would

have understood” that a ban on discrimination would

“simultaneously forbid” retaliation, and thus “would have

seen no need” to address retaliation specifically. U.S. Br. 11-

12.

Jackson's reliance on Sullivan as proof of Congress’ intent

is misplaced. First, as a summary of his arguments makes

clear, Jackson’s position is not founded on any affirmative

evidence of congressional intent. Rather, it, too, rests on an

inference from congressional silence. See also ABA Br. 3

(“Congress would have had no reason to assume ....”); New

York Lawyers Br. 14 (“Congress certainly contemplated ....”).

Perhaps that inference would be warranted had Sullivan said

in so many words what Jackson claims it said - namely, that

a general ban on discrimination necessarily entails a

prohibition on retaliation. But, as we show next, it did not.

Jackson and his amici point to a paragraph in Sullivan

that does, in fairness, address a neighborhood association's

expulsion of a white homeowner (Sullivan) “for the

advocacy of [his black lessee’s] cause.” 396 U.S. at 237. And

the paragraph does state that Sullivan had been “punished

for trying to vindicate the rights of minorities protected by

§1982.” Id. But far from climaxing - as Jackson suggests -

with a resounding affirmation that any statutory prohibition

on discrimination necessarily entails a corollary remedy for

retaliation, the paragraph concludes (with something of a

thud) by stating, cryptically, that Sullivan “ha[d] standing to

maintain” his lawsuit. Id. And, indeed, Barrows v. Jackson,

346 U.S. 249 (1953), which the Sullivan Court cited for

support, was purely a third-party standing case; it had

nothing to do with private rights of action. See id. at 255-60.

There is no evidence that Sullivan was understood - let

alone universally understood - in the years leading up to

Title IX’s passage the way that Jackson characterizes it

today. Indeed, even Justice Harlan, dissenting in Sullivan,

was unsure of what to make of the Court's decision. With

respect to the issue of “relief for Sullivan,” Justice Harlan

called the majority opinion “highly elliptical.” 396 US. at

18

251 (Harlan, J., dissenting). The opinion, he said, did not in

any way “explain[] what legal standards should determine

Sullivan’s rights under §1982”; instead, it “simply state[d]

that ‘Sullivan has standing to maintain this action’ under

§1982.” Id. at 254. That, Justice Harlan said, could mean any

number of things for private-right-of-action purposes.

Indeed, Justice Harlan imagined four possibilities, only one

of which seems to bear any resemblance to a modern-day

retaliation claim. See id. at 255 (“Or does the Court think

that §1982 gives Sullivan a right to relief from injuries that

result from his ‘legitimate’ protest aimed at convincing the

Board to accept Freeman?”). Perhaps not surprisingly, we

are also not aware of any indication that lower courts had, in

the period preceding Title IX’s enactment, construed Sullivan

to “establish{] th[e] principle” (Pet. Br. 8) that a prohibition

on “discrimination” necessarily entails a remedy for

retaliation. A computer search designed to identify any

such decisions produced none.

Jackson's reliance on Sullivan also faces the separate

problem that §1982 and Title IX were enacted pursuant to

different constitutional powers and, accordingly, are subject

to different interpretive principles. Section 1982 is

“authorized by the Enabling Clause of the Thirteenth

Amendment” - arguably the most sweeping grant of federal

power in the Constitution - and is thus to be given the

broadest possible construction. 396 U.S. at 235. As a

Spending Clause statute, by contrast, Title IX is subject to

Pennhurst’s rule that its conditions be clear and

unambiguous. Thus, even if Sullivan had definitively

construed §1982’s prohibition of discrimination to reach

retaliation, that construction would not necessarily carry

over to the Title IX context.

3. Contemporary Title VI Precedent. One final piece of

context to which Jackson points as evidence of Congress’

intent in enacting Title IX is the state of Title VI law in the

years leading up to 1972. See, e.g., Pet. Br. 21-22. Jackson is

right to look to pre-1972 Title VI precedent; this Court said

in Cannon that “[t]he drafters of Title IX explicitly assumed

enamide

19

that it would be interpreted and applied as Title VI had been

during the preceding eight years.” 441 U.S. at 696. Buta

review of Title VI case law fails to demonstrate anything

approaching a consensus that Title VI even reached

retaliation, much less made it privately actionable.

According to our research, none of the 17 cases cited in

Cannon as evidence that by 1972 Title VI “had already been

construed as creating a private remedy,” id. at 696 & n.21,

dealt with, or even mentioned, retaliation. Nor, for that

matter, are we aware of any Title VI case (Jackson has

pointed to none) during the 1964-1972 era adjudicating a

retaliation-based Title VI claim. To be sure, there are several

cases - we have found three, including the lone case Jackson

cites, United States v. Jefferson County Bd. of Educ., 380 F.2d

385 (5th Cir. 1967) (en banc) - that refer elliptically to

retaliation. See also United States v. Medical Soc’y of S.C., 298

F. Supp. 145, 158 (D.S.C. 1969); Moses v. Washington Parish

Sch. Bd., 276 F. Supp. 834, 855 (D. La. 1967). But importantly

for present purposes - discerning the 1972 Congress’ view of

the scope of Title VI itself - those were not cases in which

retaliation formed the basis of any plaintiff's Title VI claim;

rather, retaliation was an issue in those cases only insofar as

the judges involved had inserted prophylactic anti-

retaliation provisions into broad remedial decrees.

x* * &€

Even aside from the arguments’ individual weaknesses,

a common problem pervades Jackson's efforts to conjure

congressional intent from the contemporary context in

which Title IX was enacted: In the absence of any direct

evidence that Congress thought about retaliation one way or

the other when drafting Title IX, Jackson’s arguments rest

entirely on inferences from Congress’ silence. See, e.g., Pet.

Br. 21 (“Congress presumably intended ....”); New York

Lawyers Br. 11 (“Congress must have been aware ....”); ABA

Br. 7 (“Congress therefore had reason to understand ....”).

Central Bank - which, like this case, involved the scope of

an existing implied right of action - expressly rejected the

very sort of inferential reasoning that Jackson urges here.

20

The question there, again, was whether the implied right of

action recognized under Securities Exchange Act §10/b)

should be construed to reach aiding-and-abetting claims.

Having held that “[t]he text d[id] not support” the proposed

extension, 511 U.S. at 180, the Court went on to consider an

argument that parallels Jackson’s position here almost

precisely: The SEC contended that “Congress legislated

with an understanding of general principles of tort law and

that aiding and abetting liability was ‘well established in

both civil and criminal actions by 1934.” Id. at 181. “Thus,”

its argument went, “Congress intended to include’ aiding

and abetting liability in the 1934 Act.” Id.

This Court refused to credit this invocation of what it

called “implicit congressional intent.” Id. at 183. “Even

assuming ... a deeply rooted background of aiding and

abetting tort liability,” the Court held, “it does not follow

that Congress intended to apply that kind of liability to the

private causes of action in the securities Acts.” Id. at 184.

Finding no direct evidence of an affirmative intention to

include aiding-and-abetting liability within the scope of the

§10(b) implied remedy, this Court held - in words equally

applicable here - that it was “not plausible to interpret the

statutory silence as tantamount to an implicit congressional

intent” to extend the right of action to impose that liability.

Id. at 185. See also Touche Ross, 442 U.S. at 571 (“[I]mplying a

private right of action on the basis of congressional silence is

a hazardous enterprise, at best.”).

D. The Administrative Regulation That Jackson

Invokes Cannot Be Read To Create A Private

Remedy For Retaliation.

Jackson also asks this Court to defer to an administrative

regulation promulgated by the Department of Education, see

34 C.F.R. §100.7(e), that, he says, definitively “interpret[s]

Title [X's core prohibition on discrimination” to reach

retaliation. Pet. Br. 9. In relying on the regulation, Jackson

seeks to bring himself within the ambit of this Court's

statement in Sandoval that regulations that “authoritatively

21

construe the statute itself’ may be enforced through an

implied right of action applicable to that statute, because a

“Congress that intends the statute to be enforced through a

private cause of action intends the authoritative

interpretation of that statute to be so enforced as well.” 532

US. at 284. In Sandoval, of course, the Court held that Title

VI's disparate-impact regulations do not qualify because

they “forbid conduct that §601 permits,” namely,

unintentional discrimination. Id. at 285. By contrast, Jackson

asserts, §100.7(e) does “not extend the protection of Title IX

beyond its terms” but, instead, “reflect[s] an ‘interpretation

of the terms of Title IX itself.” Pet. Br. 33.

Jackson is wrong. In order to trigger the permissive

treatment outlined in Sandoval, Jackson and his amici

repeatedly describe §100.7(e) - as incorporated for Title 1X

purposes, see 34 C.F.R. §106.71 - as an authoritative

“interpretation,” or “construction,” of §901’s ban on

“discrimination.” E.g., Pet. Br. 3, 4, 9, 21, 27, 29, 33; U.S. Br.

6, 16, 17, 19; New York Lawyers Br. 9, 12, 15-16; Leadership

Conf. Br. 12-13. But in fact, §100.7(e) is not, and does not

purport to be, an authoritative interpretation of the term

“discrimination.” It is instead, as we will show, merely a

procedural rule governing the conduct of administrative

investigations. This case, accordingly, does not concern the

kind of regulation posited by the Court during oral

argument in Sandoval - that is, “an interpretive regulation

which [is] not precluded by [the Court's] case law” in that it

does not “say that you don’t have to have intentional

discrimination,” but says instead that “this is what

intentional discrimination consists of.” Tr. of Oral Arg. 26.

That, as we said then, might be “a harder case.” Id. But it is

not this case.

In relevant part, the regulation Jackson cites provides

that -

No recipient or other person shall intimidate,

threaten, coerce, or discriminate against any

individual for the purpose of interfering with any

right or privilege secured by section [901] of the Act

22

or this part, or because he has made a complaint,

testified, assisted, or participated in any manner in

an investigation, proceeding or hearing under this

part.

34 C.F.R. §100.7(e). Jackson and his amici correctly point out

that subsection (e) is titled “Intimidating or retaliatory acts

prohibited.” What they uniformly fail to acknowledge is the

larger context in which subsection (e) is situated.

Section 100.7 itself - of which subsection (e) is a part - is

titled “Conduct of investigations.” And the context could

not be clearer that it is official, administrative investigations

by the Department of Education to which the regulation is

addressed. Subsection (a) requires Department officials to

perform periodic compliance reviews of fund recipients;

subsection (b) authorizes individuals to file administrative

complaints with Department personnel; subsection (c)

briefly describes the sort of investigation the Department

should conduct; and subsection (d) addresses how the

Department will resolve investigations. It is against that

backdrop that subsection (e) prohibits retaliation against

individuals who cooperate in official Department

investigations. Section 100.7(e), therefore, is at most a valid

$902 regulation aimed at “effectuatling]” §901's

discrimination prohibition. See Sandoval, 532 U.S. at 281-82

(assuming validity of §602 regulations “proscribing”

conduct not within the core of §601). It is not an

“authoritative interpretation,” id. at 284, of §901’s ban on

“discrimination” to include retaliation - or, for that matter,

even a generally applicable prohibition of retaliation.

Additional context confirming that §100.7(e) is merely a

procedural rule for the conduct of administrative

investigations - and not an authoritative interpretation of

§901 itself - is found in 34 C.F.R. §106.71, the regulation that

incorporates §100.7(e) for Title IX purposes. Section 106.71,

titled “Procedures,” adopts and _ incorporates the

“procedural provisions” applicable to Title VI and states that

“[t]hese procedures” are found at 34 C.F.R. 100.6-100.11 and

34 CFR, Part 101.” Like §100.7(e) itself, all of the regulations

23

cross-referenced in §106.71 concern “the practice for

hearings, decisions, and administrative review conducted by

the Department of Education.” 34 C.F.R. §101.1; see also, e.g.,

34 C.F.R. §§100.6 (“Compliance information”), 100.8

(“Procedure for effecting compliance”), 100.9 (“Hearings”),

100.10 (“Decisions and notices”), 100.11 (“Judicial review”).

As a “procedural provision{],” §100.7(e) stands in stark

contrast to other Title VI and Title IX regulations that at least

arguably do “interpret” or “construe” those statutes’ bans on

“discrimination.” Both sets of regulations, for instance,

contain “Definitions” sections explaining all manner of

terms. See 34 C.F.R. §§100.13 (Title VI), 106.2 (Title 1X).

Notably, neither defines the term “discrimination” to

include retaliation - or, for that matter, mentions retaliation

at all. Section 100.7(e) also contrasts with substantive

regulations aimed specifically at fleshing out the contours of

prohibited “discrimination.” On the Title IX side, for

instance, §106.21 prescribes both “[g]eneral” and “[s]pecific

prohibitions” on discrimination in admissions; it says

nothing about retaliation. Similarly, §106.31 prescribes

“[g]eneral” and “[s]pecific prohibitions” on discrimination

in educational and extracurricular programs; again, nothing

about retaliation. Sections 106.37 and 106.51 prohibit a

number of specific forms of discrimination in financial aid

and employment, respectively; neither says anything about

retaliation. Likewise, the principal substantive regulation

implementing Title VI’s ban on discrimination, titled

“Discrimination prohibited,” identifies and proscribes both

“[g]eneral” and “[s]pecific discriminatory actions” but does

not mention retaliation. 34 C.F.R. §100.3.

It is in these definitional and substantive regulations -

not in §100.7(e)’s “procedural provision[]” - that one might

expect to find an authoritative construction of §901’s ban on

“discrimination.” Indeed, every one of the cases cited in

Sandoval as involving “authoritative interpretation[s],” 532

U.S. at 284, dealt with regulations that explicitly defined or

interpreted ambiguous statutory terms or phrases. Chevron

itself, for instance, concerned an EPA rule expressly defining

24

the term “stationary source” as used in the Clean Air Act.

See Chevron U.S.A. Inc. v. Natural Resources Defense Council,

Inc., 467 U.S. 837, 842-44 (1984). Likewise, the Court in

Nationsbank of N.C., N.A. v. Variable Annuity Life Ins. Co., 513

U.S. 251 (1995), deferred to an OCC letter-ruling expressly

construing the National Bank Act's phrase “incidental to the

business of banking.” Id. at 257. The same, notably, is true

of the various cases the Sandoval Court cited as having

““assumed’ that a cause of action to enforce a statute

includes one to enforce its regulations.” 532 U.S. at 284.

Those cases, too, concerned “authoritative” agency

constructions in the Chevron sense - 1.e., regulations that, by

their very terms, set out to define or interpret ambiguous

statutory language. See NCAA v. Smith, 525 U.S. 459, 467-68

(1999) (regulation expressly defining term “recipient” in

“Definitions” provision); School Bd. of Nassau County v.

Arline, 480 U.S. 273, 280 (1987) (regulation expressly defining

terms “physical impairment” and “major life activities” in

“Definitions” provision); Bazemore v. Friday, 478 U.S. 385,

408-09 (1986) (White, J., joined by four other Justices,

concurring) (regulation expressly identifying

“[d]iscrimination prohibited” under statute); Alexander v.

Choate, 469 U.S. 287, 304-05 & n.25 (1985) (same); Lau v.

Nichols, 414 U.S. 563, 567-68 (1974) (same).

Indeed, even the regulation at issue in Sandoval itself -

which, of course, the Court found categorically beyond the

authoritative-construction pale and thus ineligible for

enforcement pursuant to Title VI’s implied right of action -

at least purported to interpret the statutory term

“discrimination” in a way §100.7(e) does not. The regulation

there, titled “Discrimination prohibited,” expressly

identified both “[g]eneral” and “[s]pecific discriminatory

actions.” 28 C.F.R. §42.104. The “procedural provision[]”

on which Jackson relies here doesn’t even do that. Thus, ina

very real sense, Jackson’s invocation of §100.7(e) to support

his retaliation claim is even more strained than the

regulation-based argument this Court rejected in Sandoval.

25

III. Jackson’s Reliance On Title IX’s Perceived “Purposes”

And “Policies” Is Misplaced.

Without any meaningful support in the text, structure, or

context of Title [X itself - or, as we have just shown, in the

only Title IX regulation that even mentions retaliation -

Jackson's position boils down to public policy. At bottom,

that is, Jackson’s argument is not so much that retaliation ts

discrimination but, instead, that an additional layer of

protection against retaliation would facilitate the operation

of Title IX’s anti-discrimination provision. Jackson

repeatedly asserts, for instance, that protection from

retaliation is “critical to the effectiveness” of Title IX’s

prohibition on gender discrimination (Pet. Br. 2) and

important if the statute “is to achieve its underlying

purposes” (Pet. Br. 9). See also, e.g., Pet. Br. 22-26 (“critical to

achieving the statute’s purposes”); U.S. Br. 12-14 (“important

to the achievement of Title IX’s purposes”); Women’s Sports

Br. (entire brief devoted to policy arguments); Women &

Families Br. (same). Specifically, Jackson contends that Title

IX could not achieve its objectives if recipients of federal

funds “felt free to retaliate” against those who complain

about prohibited discrimination. Pet. Br. 22.

We will leave it to the experts to set the public-policy

record straight. See generally Br. for National School Boards

Association et al. Our purpose here is to point out two

fundamental legal problems with Jackson's policy

arguments. First, they are irrelevant here. As Sandoval

makes clear, this Court has long since “abandoned thfe]

understanding” - once the governing rule for implied-right-

of-action cases - that “‘it is the duty of the courts to be alert

to provide such remedies as are necessary to make effective

the congressional purpose’ expressed by a statute.” 532 U.S.

at 287 (quoting Borak, 377 U.S. at 433). Under what the

Sandoval Court called the “ancien regime,” id., a federal court

could imply a right of action whenever “that remedy [was]

necessary or at least helpful to the accomplishment of the

statutory purpose” or, put another way, could provide some

“effective assistance to achieving statutory purposes.”

26

Cannon, 441 U.S. at 703, 708. Under the Court's current,

more restrained approach, it does not “matter how desirable

{a right of action] may be as a policy matter, or compatible

with the statute”; all that matters is “[s]tatutory intent.”

Sandoval, 532 U.S. at 286-87; accord, e.g., Central Bank, 511 US.

at 177, 188 (“[p]olicy considerations” irrelevant except to

show result “’so bizarre’ that Congress could not have

intended it”); Thompson v. Thompson, 484 U.S. 174, 187 (1988)

(Court “will not engraft a remedy on a statute, no matter

how salutary’” (quoting California v. Sierra Club, 451 U.S. 287,

297 (1981))); Transamerica, 444 U.S. at 15-16, 23 (relevant

issue not “utility” or “desirability of implying private rights

of action in order to provide remedies thought to effectuate

the purposes of a given statute” but, rather, “whether

Congress intended to create the private remedy asserted”).5

There is another problem. Jackson and his amici frame

this case as offering the Court a binary choice: either (i) it

must recognize an implied right of action for retaliation or

(ii) it will leave those who complain about discrimination

wholly unprotected. Absent the implication of a private

remedy for retaliation, the argument goes, recipients of

federal funds will feel “free to retaliate” against (Pet. Br. 22)

and “free to punish” (New York Lawyers Br. 7)

complainants - who, in turn, will be “without recourse”

(Women & Families Br. 16). Jackson’s message is clear:

without a private cause of action, those who complain about

discrimination cannot be “safe from reprisal.” Pet. Br. 12.

But the choice is not all or nothing. There remains an

intermediate remedial option - namely, the option Congress

itself envisioned when it enacted Title IX in the first place.

Even absent a private right of action under §901, the

3 Musick, Peeler & Garrett v. Employers Ins. of Wassau, 508 U.S. 286 (1993),

which may at first blush appear to turn on policy considerations, is

distinguishable. There, the Court held that Rule 10b-5’s implied right of

action allows for contribution among joint tortfeasors. Key to the decision

was the fact that a contribution remedy merely allocates liability for a

wrong - securities fraud - that the Court had “already deemed actionable

under federal law.” Id. at 292. Here, by contrast, the question presented

is whether retaliation should be “deemed actionable under” Title IX.

27

Department of Education retains the power under §902 to

proceed against retaliators administratively. As the Solicitor

General acknowledges, “[e]ven if Section 1681 did not bar

retaliation, federal agencies would still have rulemaking

authority to bar that practice.” U.S. Br. 20 n.3; see also Gebser,

524 U.S. at 292 (agencies may enforce requirements “that

effectuate [Title IX’s] antidiscrimination mandate, 20 U.S.C.

§1682, even if those requirements do not purport to

represent a definition of discrimination under the statute”).

Accordingly, federal agencies may target retaliation under

Title IX even where private suitors may not.

Pursuant to its administrative-enforcement authority, the

Department may “take such remedial action as [it] deems

necessary to overcome the effects” of discrimination. 34

C.F.R. §106.3. That remedial action may of course include

the ultimate sanction of terminating federal funding. But the

Department needn’t go so far every time. Rather, the

regulations make clear that it may first attempt to remedy

violations “by informal means” and, failing that, by “the

suspension” of funds. Id. §100.8 (incorporated in 34 C.F.R.

§106.71). And, indeed, the Department itself touts its

“flexible approach” to enforcement, including, ¢.g.,

“voluntary resolutions,” “agreements with recipients,”

“violation letters,” and “negotiations.” U.S. Department of

Education Office of Civil Rights, Annual Report to Congress:

Fiscal Years 2001 and 2002 (July 2003), www.ed.gov/about

/ offices/list/ocr/AnnRpt2002. Finally, as Senator Bayh

himself explained during the debate on Title IX, the mere

threat of terminating a recipient's federal funding will often

convince it to change its ways: “The civil rights experience

... indicates that the very possibility of such a sanction has

worked wonders.” 117 Cong. Rec. 30408.

Jackson suggests - without ever really explaining why -

that administrative enforcement is not an “effective remedy

against reprisal.” Pet. Br. 22; see also U.S. Br. 13 (“effective

protection,” “sufficient deterrent”). Jackson’s amici likewise

contend, for instance, that “administrative procedures are

less efficient mechanisms for enforcing Title IX” and that

28

private lawsuits are “more efficient.” Women’s Sports Br.

22-23. But, in so arguing, Jackson and his amici are, with

respect, just penciling in their reasoning in reverse: because

the remedy that Congress did provide (administrative

enforcement) is in some sense not ideal, this Court ought to

imply a remedy that Congress did not. This Court has

rejected precisely that sort of argument before, and should

do so again here. See, e.g., Touche Ross, 442 U.S. at 578 (“The

ultimate question is one of congressional intent, not one of

whether this Court thinks it can improve upon the statutory

scheme that Congress enacted into law.”).

IV. Any Extension Of A Private Remedy Beyond Direct

Victims Would Impermissibly Expand The “Special

Class” For Whose Benefit Title IX Was Enacted.

There is a final reason that this case is particularly ill-

suited to the creation of a private right of action for

retaliation: Jackson, a male basketball coach, does not

himself claim to have been subjected to gender

discrimination. (Any suggestion in Jackson's brief to the

contrary, see Pet. Br. 41-43, is isconsistent with his position

in the lower courts. See supra at 9.) Accordingly, Jackson is

“plainly not within the class meant to be protected by Title

IX.” Pet. App. 23a. Jackson asserts that there is “no basis in

precedent” for limiting Title IX’s coverage to direct victims

of discrimination. Pet. Br. 38. With respect, he is wrong.

This Court’s cases have repeatedly emphasized that a

key consideration in deciding whether to recognize a private

remedy is “whether the statute was enacted for the benefit of

a special class of which the plaintiff is a member.” Cannon,

441 US. at 689. Indeed, even in the heyday of implied

private rights, the decisive question was whether the statute

in question “was enacted for the benefit of a special class”; if

so, a court could recognize a remedy “for members of that

class.” Merrill Lynch, Pierce, Fenner & Smith, Inc. v. Curran,

456 U.S. 353, 375 (1982); see also Cort v. Ash, 422 US. 66, 78

(1975) (whether “the plaintiff [is] ‘one of the class for whose

especial benefit the statute was enacted’” (quoting Texas &

29

Pac. R. Co. v. Rigsby, 241 U.S. 33, 39 (1916))); Sierra Club, 451

US. at 294 (“particular class of persons”).

Cannon is instructive as to the “special class” protected

by Title IX. The Court there concluded that a female who

had been denied equal treatment in university admissions

“because of her sex,” 441 U.S. at 680 - and had thus herself

been subjected to traditional gender discrimination - could

bring a cause of action because she was “clearly a member of

that class for whose special benefit [Title IX] was enacted,”

id. at 694. Nothing in Cannon, or in any other Title IX case,

suggests that Congress cast a wider net. To the contrary,

there can be little question that the “special class” for whose

benefit Title IX was enacted comprises those individuals -

typically women - who suffer direct gender discrimination.

One simply cannot read Title IX’s legislative history and

come away with any other conclusion. Again, from the

entire legislative record, Jackson has mustered only five

anecdotal references (in hearing testimony) that refer to

retaliation at all. See supra at 14-15. Notably, only two of

those can even arguably be construed to touch on retaliation

for complaints about discrimination against others. See

Discrimination Against Women: Hearings Before the Special

Subcomm. on Education of the House Comm. on Educ. & Labor,

91st Cong., 2d Sess. 242, 302 (1970). In contrast to that void,

the legislative history is littered with references to

“discrimination against women,” e.g., 118 Cong. Rec. 5804,

5807, 5809, in the form of “differential treatment” and

“disparit[ies]” in virtually every aspect of education, e.g., 118

Cong. Rec. 5804, 5805, 5807; 117 Cong. Rec. 30407. Cf. also

Women & Families Br. 11 (“Women [a]re at a [hJeightened

[r]isk of [rJetaliation ....”), 12 (“[W]omen complaining of sex

discrimination are all too frequent targets of retaliatory

actions ....”).

Accordingly, Jackson would have the Court go two steps

beyond Cannon: first, by expanding the scope of Title IX’s

implied right of action from core discrimination to include

retaliation claims, as well; and then, even assuming a

retaliation cause of action generally, by extending the class

30

of plaintiffs who may sue on that cause of action beyond

direct victims who are Title IX’s “unmistakable focus.”

Cannon, 441 U.S. at 691. Jackson has offered no compelling

basis for taking either step, let alone both.

CONCLUSION

We close with a practical point. Over the years,

Congress has proven itself fully capable of legislatively

overruling interpretations of Title IX with which it disagrees.

In Grove City College v. Bell, 465 U.S. 555 (1984), for instance,

this Court held that that Title IX was “program-specific” -

1.e., that the receipt of grants by some students at a federally-

funded college did not trigger institution-wide coverage

under Title IX, but, instead, imposed Title IX obligations

only on the financial aid program. Id. at 573-74. Believing

that Grove City too narrowly construed Title IX, Congress

promptly passed, over a presidential veto, the Civil Rights

Restoration Act of 1987, Pub. L. No. 100-259, §3(a), 102 Stat.

28 (1988), which reinstated a rule of institution-wide

application for Title IX. Cf also 42 US.C. §2000d-7

(abrogating state immunity for Title IX actions in response to

Atascadero State Hosp. v. Scanlon, 473 U.S. 234 (1985)).

Ordinarily, of course, Congress’ demonstrated ability to

respond to a particular statute’s judicial interpretation might

not cut decisively in either direction; whatever this Court's

decision, the argument would go, Congress can step in to

“fix” it. But here, for all of the reasons explained in Part I,

the burden was on Jackson to show that Congress actually,

affirmatively intended to create a private remedy for

retaliation. He has not done so. Given the prevailing

presumption against implying private rights of action and

the clear-statement rule that applies to Title IX as a Spending

Clause statute, the more prudent course now is for this

Court to proceed with caution and to decline to create a

cause of action that Congress did not. In staying its hand,

the Court will put the ball back where it belongs - in

Congress’ court.

The judgment of the court of appeals should be affirmed.

October 7, 2004

31

Respectfully submitted,

Troy King

Attorney General

Kevin C. Newsom

Solicitor General

Counsel of Record

STATE OF ALABAMA

Office of the Attorney General

11 South Union Street

Montgomery, AL 36130-0152

(334) 242-7401

(Additional counsel for amici curiae

are listed inside the front cover.)