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

(~~ Supreme Court. U.S.

FILED

AUG 19 2004

SS OFFICE OF THE CLERK

No. 02-1672

IN THE

Supreme Court of the United States

RODERICK JACKSON,

PETITIONER,

V.

BIRMINGHAM BOARD OF EDUCATION,

RESPONDENT.

On Writ of Certiorari to the United States

Court of Appeals for the Eleventh Circuit

AMICUS CURIAE BRIEF OF

COLLEGE SPORTS COUNCIL

IN SUPPORT OF NEITHER PARTY

LAWRENCE J. JOSEPH

2121 K Street, NW, Suite 800

Washington, DC 20037

Tel: 202-669-5135

TABLE OF CONTEN

IDENTITY AND INTEREST OF AMICUS CURIAE........... l

ee I eivciniesiencineeeremmnisnnanensenniennmenionwenianninnitis l

SUMMARY OF ARGUMENT ..............csssccsssssssscssscsssesssees 2

FACUTAL AND LEGAL BACKGROUND..................::006 3

IIIT Uicscccinseenenibansennecenstaunnabepeniiiscecapeicinnnicbiinnesdiieitindd 6

I. WITHOUT THE REGULATIONS, THERE IS NO

PRIVATE RIGHT AGAINST RETALIATION ............. 6

fl. IF THEY FOLLOW THE REGULATIONS,

EDUCATORS MAY HAVE A PRIVATE RIGHT .....10

A. Title IX Regulations Warrant Skidmore — Not

oo ____ ENT ee 11

1. Education Amendments of 1972 ...............00. 13

2. Education Amendments of 1974.00.00... 15

3. Congressional Acquiescence .............:::cceeeee 17

4. Department of Education Organization Act...18

B. Regulations that Define Statutory Terms............... 20

C. Regulations that Expand on Statute..................000 24

Il. SPENDING-CLAUSE LEGISLATION CANNOT

IMPOSE LIABILITY WITHOUT NOTICE................. 24

IED ctetinscinidtnncieipininnssiantinnenmeseniammennmmmnenannaneis 26

TABLE OF AUTHORITIES

Cases

Alexander v. Sandoval,

SS2 UG. TTS GIG) acecseressectcsnsenniaanan 6, 9, 10, 21, 25

Barnes v. Gorman,

FIG U.S. B61 CARER) .0ccercscscssesscccsscssvnenssnnnnnenenananan 8, 25

BE & K Const. Co. v. N.L.R.B.,

FIG U.S. FBG (ABBE) .2ccrsesscessceceoseccnsesennsehennnunienanaiana 24

Bowen \. American Hospital Association,

S76 UB. GID (IGBG) .ecccsecssccsesccnscntetiionnunnensenananaan 13-14

Bowen v. Georgetown University Hosp.,

4BS U.S. 2O6 (GBB) .0cccccseccsscccessscsscecnssscenssnnnennnnnna 16

Bragdon v. Abbott,

S24 U.S. GB46 (1GBD) ...crssesesessessssocsveiensnnnnennann 13,14

Brown v. Gardner,

SIS U.S. 12S (EDDC) ...0ccrccccscessccscscscnsssnsennnnnnnnennannnnnnnnan 18

Cannon v. University of Chicago,

441 U.S. 677 (1D TD) .ncccroccesscccssecnenssenesnneneneana 6, 25

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

Defense Council, 467 U.S. 837 (1984) ....... 11, 12, 14, 16

Connick v. Myers,

461 U.S. 136 (39B3S) ..00000c00sserecssccssnenesesnnsensninnnnnnnnnn 22

Craig v. Boren,

429 U.S. 190 (ID PB) .00ccccescrsssrssnscsnscsessnsnnsnenaeninnannna 8

Davis v. Monroe County Board of Education,

526 U.S. G29 CI DDD) ..00<0cccccseccessossesensesnssnnsneaniannnnnnnnnnn 4

Epperson v. Arkansas,

993 U.S. 97 (19GB) ..000cccss0rsescocsssenenenapsonsnnnnneninnannnanna 13

Fitzpatrick v. Bitzer,

Ee 4

FTC v. Standard Oil Co. of California,

EE 21

Great American Federal Sav. & Loan Ass'n v. Novotny,

I sre seennesnoneel 9

Griggs v. Duke Power Co.,

EE a 12

Grutter v. Bollinger,

En 13

INS v. Cardoza-Fonseca,

EE 15

Jones v. Alfred H. Mayer Co.,

a pensonsnsessocsnsees 8

Matter of Appletree Markets, Inc.,

a 17

Motor Vehicle Ass'n v. State Farm Mut.

Automobile Ins. Co., 463 U.S. 29 (1983) .......ccccccccceceeeee 22

Mourning v. Family Publication Services, Inc.,

Ec 12

N.L.R.B. v. Catholic Bishop of Chicago,

EE 13

North Haven Bd. of Educ. v. Bell,

a 6, 18, 19

Personnel Administrator of Mass. v. Feeney,

ee 7

Pickering v. Board of Ed. of Township

High School Dist. 205, 391 U.S. 563 (1968) ............004. 22

Public Citizen, Inc. v. Shalala,

932 F.Supp. 13 (D.D.C. 1996) ...........cccsscessessssssssceesees 16

Raygor v. Regents of University of Minnesota,

| | Ere ne enn OTe 14

Russello v. United States,

SAREE See reemee en ra aa ee 7

Skidmore v. Swift & Co.,

ey CI iccciceniciatninsaniidailiiataibdasitaitinailadeliiadiies 11,14

Solid Waste Agency of Northern Cook County v.

U.S. Army Corps of Engineers, 531 U.S. 159 (2001) ....13

Sullivan v. Little Hunting Park, Inc.,

ee ee a ee crianarncnseenmactncmssesentenenennmmaniontiinsia 7-8

Teamsters v. United States,

GD a: SO Pecccnaccientinitisinnmatctnnmniemmmaeiniel 23

Texas v. Lesage,

Fe eh CE tciuinhinerenniccniunsitabiadiiabatiemmemepmianial 24

Thorpe v. Housing Authority of City of Durham,

a Se rcittcticccsnenrncsitemecpitininiabnnaniennetanniants 12

Trafficante v. Metropolitan Life Insurance Co.,

Se ee ctcceneveniennneceneemintaniatantaniticniniinia 12

Udall v. Tallman,

es 6 Gi rnscniessmemutantremenctsemnmmensnmnniennaiets 12

United States v. Eaton,

eS Oe 17

United States v. Fordice,

505 U.S. 717 (1992) ...-sssesseessssessesssseseennesseen Lerssvcececeesesees 7

United States v. Mead Corp., ©

Fe he Be ccteresintiimieenimmnmmemne 13

United Steelworkers of America, v. Rawson,

GD a BD Ce ccritccemnniinninn 26

Utah Wilderness Alliance v. Dabney,

222 F.3d 819, 829 (10th Cir.2000)...0. eee eeeeeeeeeeeeees 17

1V

Village of Arlington Heights v. Metropolitan

Housing Development Corp., 429 U.S. 252 (1977).......... 8

Wright v. City of Roanoke Development & Housing

Authority, 479 U.S. 418 (1987)...........:ccsscccsssereceeseeeeees 21

Constitutional Provisions

Commerce Clause, U.S. CONST. Art. I, § 8, cl. 3........0....000... 4

Spending Clause, U.S. ConsT. Art. I, § 8, cl. 1. .... 4, 8, 25-26

Thirteenth Amendment, U.S. Const. Amend. Xil............... 8

Fourteenth Amendment, U.S. CONST. Amend. XIV......4, 7, 8

Statutes

Pas Oe I ectenssteetatiicnitttinrnitnitehieninimneans 21

a es Oe SN ccrrssnsstnsintninccnemnecerescntinniaineentnmiennns 12

General Education Provisions Act,

ae OF Ce reerennnnerntnennieanentesiimmennnni 18

Title IX of the Education Amendments of 1972,

a ice © See OOD cece passim

I A Ci iia arr tinresterieeiaaniibiamneiiadl passim

irs OF Re ccrrtncnnnsetesneetitanitantenninniniitinitiananeniens 7

ee te OF Ce rcccennsenincereniuncetninentmintenmnaniinensedl passim

as Ob re circeniertinnnesntecennnninnsseninenninsninisitioianiaaiaiins 20

a a Oh ee ccressenicenectrenemnnsinnneintaia 19

ins Ob i entctexenennennecscintnicemenennninnintintn 19

lice 0b i iiscicscerereritnnnnnmmnmninenmnenaninasn 19, 20

a ics Ob ee tertrnscercnntnneccsnsnscuienieinsiaiiiausinuaiaiaeinia 19

a Oe ecncenememnnemememnnianiminiineneinens 19

as ee irenerenmnnieiiennmnninenieenes 19

A 19

Vv

Bie: OF I icicemnepsmevenmmneinnummnemnetinnmmensiammienns 23

Sa Ob IE cctennicncessniennmnseseninannmnimemnmninnmenen 18

lee Oe Se errtcteviiiininnctniintastainninnininninacitanimainntiiisiniiiadinnni 8

as Oe I ertertnicricnreesscnseitssninntcivinnnenseneesecinnabeiniiaias 9

a es 0 I iccinerninisininrctaninnnimmenimienennntnenninnnenien 12

Title VI of the Civil Rights Act of 1964,

Se OS NGO, cetecsntinctnnmnnitl passim

i OO iccerererecientesiimienel 4

Title VII of the Civil Rights Act of 1964

Fe i OO cccccreccctenetsmnmmenmarens passim

ie 0 I rcnrneserenenerenssestenenenenesntemenen 7

ies 0 I D cenrnemnmmnnennneene 4,7

42 U.S.C. § 2000e-S................ (cressssenssennsecennsecsnncennnnscesansseen 12

CT 12

A BO Fe ccrcencccsterssetenenmmmnmmeen 14

Pub. L. No. 93-383, Title I, § 8; 50 Stat. 653, 891 (1937)..12

Pub. L. No. 93-380, § 844, 88 Stat. 484, 612 (1974)..... 16-19

Department of Education Organization Act, Pub. L. No.

OE 18-19

Legislative History

foe | 4,21

117 Cong. Rec. 30,404 (1971) (Amendment 398)......... 14-15

117 Cong. Rec. 30,407 (1971) ...............cccsccccrsccscsssesscsscssoees 15

118 Cong. Reg. 5803 (1972) (Amendment 874).................. 15

120 Cong. Rec. 15,322 (1974) (Amendment 1343)............. 15

H.R. 69, § 536 (Tower Amendment), reprinted in 120

Cong. Reg. 15,444, 15,477 (1974) .......:cccccccseeeeeeeeeeeeees 16

vi

Conf. Rep. 93-1026, reprinted in

1974 U.S.C.C.A.N. 4206, 4271.00... cccscssseeessseeseeeereeeees 16

Conf Rep. 96-459, 46-47, reprinted in

RUS Gee cccecninnenenssincenseneetanimnininenanansainas 20

Rules and Regulations

RS GaN ee actncecnscnnscnssensetsnencnsiinnpionnitnindaiinens 5

SG, TR, ee Ce ei ccccenceccncncnensernssnnsenetinnnneniinen 5, 16

ee hs ee II bccrisoenntccncicntiniirnsscentnnieniiidiaciitintinnniniiauis 5

45 Fed. Reg. 72,995 (1980) (Executive Order 12,250).......... 4

Ss Ses SN aE acicniacinecerecsinesitenistamnninmntihiansnianadiiis 5, 21

Se Ee BR, Cr Ce Perccncccccnnensecescesaseessemananis ansemesees 21

re RE crcsrecreneenentinsaradinncetianciinniuninnsiid 5-6

Pe 0 ae irccninitenennntnenmmnmsennenane 5, 23, 24

es Op Pe ieincenncaninencnetaneinttnenieninniiememenenl 4, 25

Oe i cttinsenicsninnnnsinsninniinennnienesd 4,25

PO GED dnncmennernemneminnnnaedl 8

Pe OR Wa ictnnicsensesenscesenieenentenstdcenenimanmeaenmaianiaiaeiil 20

ie OF Ce ticnrscesnpsenntensnesennnineinnisenninianinintsionand 24

> © TS crcniteenmminnmnenie 5

ale Oh ee enescnsnensnssnntenncensinnnennnemepeneae 5, 23, 24

aes OF G rerctersenennsinemmnsnnmmmenmeniel 4, 25

re ren teensnsnsssenmesesnsssnmienmemannmecnenmnnscisl 4, 25

ee Ob nenrerrennescenenimnmentiiin 24

es Ci ierrsensernsnesnsenenenenemenenininemaniennaiiiiil 20

TE ET 5

es I E cerceneneeneneiiinimnniesialéil 8

Vii

Other Authorities

Albert Bigelow Paine, ed., Letters Vol. 4: Mark Twain's

I Fe ED cictectntevcsnininteiinasiettitectininimmenionss

Catharine A. MacKinnon, “Disputing Male Sovereignty:

On United States v. Morrison,” 114 HARV. L. REV.

Sa EE cnntnrsncensrnveensennenmnannendiniacteiaiaedinenemanninnin

Diane McWhorter, Carry Me Home: Birmingham,

Alabama - The Climactic Battle of the Civil Rights

GE crncnnsessicsinncinnennesenenecnsninmaciiaitaess

Vill

IDENTITY AND INTEREST OF AMICUS

CURIAE’

Amicus curiae College Sports Council (“CSC”), a

nonprofit corporation headquartered in Washington, D.C., is

an umbrella organization that promotes the preservation and

expansion of educational ideals, athletics, and the interests of

those who sponsor, participate in, or attend such athletics.

Through its institutional and individual members, CSC

represents tens of thousands of student-athletes, coaches,

coaching associaiions, booster groups, alumni, and schools

nationwide.

This litigation raises important questions for CSC’s

members and for CSC’s mission: not only whether the law

should protect coaches and other educators who champion

the rights of the students in their charge, but also whether

litigation is the best, or at least the first, way to resolve

disputes.

ISSUE PRESENTED

This case poses one purely legal issue: does Title IX of

the Education Amendments of 1972, 20 U.S.C. §§ 1681-

1688 (“Title IX”), impliedly create a private right of action

under which an educator can challenge retaliatory actions

' Pursuant to Rule 37.6 of the Rules of this Court, amicus curiae

states that no counsel for a party has written this brief in whole or in part

and that no person or entity, other than the amicus curiae, its members, or

its counsel, has made a monetary contribution to the preparation or

submission of this brief. Pursuant to Rule 37.3 of the Rules of this Court,

the parties have consented to the timely filing of all amicus curiae briefs

in this matter. The parties’ letters of consent have been lodged with the

Clerk of the Court.

taken by a federally funded school for his or her advocacy

about perceived gender discrimination against students?

SUMMARY OF AR NT

It is a worthy thing to fight for one’s freedom; it is

another sight finer to fight for another man’s.

Mark Twain’

At the motion-to-dismiss phase, courts and parties alike

must assume that Coach Jackson advocated for his team for

the best of reasons and in the most unobjectionable of ways.

The nobility of his pre-litigation actions, however, does not

guarantee the justiciability of his retaliation claim. Moreover,

by initiating litigation without first filing an administrative

complaint, Coach Jackson materially altered the terms to

which the Birmingham Board of Education (“Birmingham’’)

agreed when it accepted federal funds. Although coaches

(like educators generally) need protection from unwarranted

retaliation, schools need protection from unwarranted and

premature litigation.

Patterned on Title VI of the Civil Rights Act of 1964,

Title IX broadly provides that “[nJo person in the United

States shall, on the basis of sex, be excluded from

participation in, be denied the benefits of, or be subjected to

discrimination under any education program or activity

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

Albert Bigelow Paine, ed., Letters Vol. 4: Mark Twain's Letters

1886-1900, at 93 (2003) (letter to Rev. J. H. Twichell, Hartford, Conn.

(June 17, 1898)).

In applying this text to the retaliation regulation at issue here,

amicus curiae CSC makes three arguments:

1. Absent the retaliation regulation, a plaintiff could not

credibly argue that Title IX prohibits retaliation for

advocacy on behalf of a third party’s statutory or

regulatory rights.

2. When a plaintiff relies upon a regulation to establish a

violation, that regulation must “effectuate” Title [IX’s

statutory prohibition against intentional gender-based

discrimination before it will support a private right of

action.

3. Even if a regulation so effectuates Title IX, however,

third-party beneficiaries cannot enforce Spending-Clause

legislation like Title IX unless they comply with the

entire regulatory process that creates the regulatory

prohibition that they seek to enforce.

Under the foregoing framework, some hypothetical plaintiff

could bring a private right of action to enforce the regulatory

provision against retaliation. As detailed below, the

application of the second argument to this case presents a

compounded series of close questions. At any rate, unless he

initiated the required administrative process, Coach Jackson

cannot bring a private right of action for retaliation under

Title IX.

FA AL AND LEGAL BACKGR

Amicus curiae CSC adopts the facts presented in the

Eleventh Circuit’s decision, 309 F.3d at 1335-36, but

highlights here only that— although 42 of the Amended

Complaint alleges fulfillment of all conditions precedent to

3

his filing suit — it appears that Coach Jackson did not file an

administrative complaint, that no_ responsible US.

Department of Education (“DE”) official has determined that

Birmingham’s compliance could not be secured by voluntary

means, and that Birmingham did not receive the requisite

pre-litigation notice of its failure to comply and the action to

be taken to effect compliance. Cf. 45 C.F.R. § 80.8(a), (d)

(regulatory preconditions to effect compliance “by any other

means authorized by law”); 34 C.F.R. § 100.8(a), (d) (same).

Congress enacted Title IX (and related civil rights

Statutes such as Title VI that place anti-discrimination

conditions on federal funds) under the Spending Clause. See

Davis v. Monroe County Board of Education, 526 U.S. 629,

640 (1999) (citing cases). By contrast, Congress enacted

Title VII under the Commerce Clause and §5 of the

Fourteenth Amendment. Fitzpatrick v. Bitzer, 427 U.S. 445,

458 (1976) (Brennan, J., concurring) (citing cases).

Unlike Title VI and IX, Title VII expressly prohibits

retaliation. 42 U.S.C. § 2000e-3(a). Nonetheless, both Title

VI and Title [IX authorize federal funding agencies to issues

rules, regulations, and orders of general applicability “to

effectuate” their respective statutory prohibitions against

intentional discrimination. 42 U.S.C. § 2000d-1; 20 U.S.C.

§ 1682. Under both Title VI and Title [X, such rules,

regulations, and orders do not take effect unless and until

approved by the President, 42 U.S.C. § 2000d-1; 20 U.S.C.

§ 1682, with presidential approval manifested by a signature

in the Federal Register. See 110 Cong. Rec. 2499 (1964)

(Rep. Lindsay). Executive Order 12,250 delegated the

President’s rule-approval and enforcement authority to the

Attorney General, 45 Fed. Reg. 72,995 (1980), who in tum

delegated the enforcement authority, but not the rule-

4

approval authority, to the Assistant Attorney General in

charge of the Department of Justice’s Civil Rights Division.

46 Fed. Reg. 29,704 (1981) (codified at 28 C.F.R. § 0.51(a)).

Consistent with this Title VI heritage, the initial Title IX

regulations by the Department of Health, Education &

Welfare (“HEW”) incorporate HEW’s Title VI regulations,

which prohibit recipients’ retaliating for two types of actions:

(a) interference with a statutory right or privilege, and

(b) participation in a regulatory investigation, proceeding, or

hearing. 40 Fed. Reg. 24,128, 24,144 (1975) (codified at 45

C.F.R. § 86.71); 29 Fed. Reg. 16,299, 16,301 (1964)

(codified at 45 C.F.R. § 80.7(e)). Upon its formation as a

separate agency, the Department of Education (“DE”)

promulgated in Title 34 of the Code of Federal Regulations

the education-related provisions of the HEW regulations. 45

Fed. Reg. 30,802 (1980) (invoking the 5 U.S.C. § 553(b)(B)

“good-cause” exemption not to undertake notice-and-

comment rulemaking for its repackaging the HEW

regulations as its own).

Both the former HEW regulations and the new DE

regulations continue to include the relevant provisions. 45

C.F.R. §§ 80.7(e), 86.71 (2003); 34 C.F.R. §§ 100.7(e),

106.71 (2003). In addition, in 2000, twenty-one federal

agencies (including the Department of Justice) issued Title

IX regulations that include similar provisions. See 65 Fed.

Reg. 52,858 (2000). Presidents Johnson and Ford signed the

HEW regulations. 29 Fed. Reg. at 16,303; 40 Fed. Reg. at

24,137. President Carter did not sign the DE regulations. 45

Fed. Reg. at 30,803. With the exception of the Department of

Justice’s regulations in 2000, 65 Fed. Reg. at 52,880, no

Attorney General has signed Title [X regulations.

ARGUMENT

I. WITHOUT THE REGULATIONS, THERE IS NO

PRIVATE RIGHT AGAINST RETALIATION

If Birmingham’s_ alleged retaliation _— violated

Section 901(a), then Coach Jackson has an implied private

right of action, without exhausting his administrative

remedies. See Cannon v. University of Chicago, 441 U.S.

677, 689 (1979). The first task, therefore, is to define the

scope of Title [X’s statutory prohibition and to determine

whether retaliation falls within that scope.

Whatever the regulatory requirements imposed on

recipients, Title [X’s statutory prohibition clearly covers only

intentional, gender-based discrimination. See Alexander v.

Sandoval, 532 U.S. 275, 282 & n.2 (2001) (“it is absurd to

think that Cannon meant, without discussion, to ban under

Title [IX the very disparate-impact discrimination that Bakke

said Title VI permitted”); Cannon, 441 U.S. at 748 n.19

(Powell, J., dissenting) (Title [X’s limitation to intentional

discrimination “seems forgone” in light of the Bakke holding

on Title VI). As borne out by its reliance on the Title VI

template,’ Title IX proscribes the same intentional (i.e.,

purposeful) discrimination that Title VI and the Equal

Protection Clause prohibit, United States v. Fordice, 505

U.S. 717, 732 n.7 (1992) (protection is coextensive with that

of the Fourteenth Amendment), namely where “the

, Compare 20 U.S.C. § 1681(a) with 42 U.S.C. § 2000d; see North

Haven Bd. of Educ. v. Bell, 456 U.S. 512, 529 (1982) (interpret Title IX

in para materia with parallel provisions of Title VI).

decisionmaker . .. selected or reaffirmed a particular course

of action at least in part ‘because of,’ not merely ‘in spite of,’

its adverse effects upon an identifiable group.” Personnel

Administrator of Mass. v. Feeney, 442 U.S. 256, 279 (1979)

(footnote and citations omitted, emphasis added); cf.

Catharine A. MacKinnon, “Disputing Male Sovereignty: On

United States v. Morrison,” 114 HARV. L. REv. 135, 149-50

& n.85 (2000) (for “constitutional sex equality oversight,”

Supreme Court requires that “discrimination under the

Fourteenth Amendment be intentional’).

When it enacted the Civil Rights Act of 1964 (i.e., Titles

VI and VII), Congress expressly included retaliation only in

Title VI. 42 U.S.C. § 2000e-3(a). Standing alone, such

selective omissions and insertions within the same statute

suggest that Congress intentionally and purposefully omitted

retaliation protections from Title VI. Russello v. United

States, 464 U.S. 16, 23 (1983). Significantly, although ‘t

generally patterned Title [IX on Title VI, Congress borroww:

one provision — unrelated to the issues before the Court —

from Title VII. Compare 42 U.S.C. § 2000e-2(j) (Title VID

with 20 U.S.C. § 1681(b) (Title IX). If there was any doubt,

Congress clearly knew how to include Title VII provisions in

Title [IX when it intended to do so.

In Sullivan v. Little Hunting Park, Inc., 396 U.S. 229

(1969. decided between the enactment of Title VI and Title

IX, this Court allowed a Caucasian landlord to maintain a

Suit against a private park-management corporation that

retaliated against him and discriminateu against his African-

American lessee. 396 U.S. at 236-37. In doing so, the Court

interpreted a different statute, 42 U.S.C. § 1982, which

Congress enacted under different authority that Title IX, the

power to enforce the Thirteenth Amendment. See Jones v.

7

Alfred H. Mayer Co., 392 U.S. 409, 413 & n.5 (1968).

Significantly, courts most frequently cite Little Hunting Park

as a third-party standing case, in which the landlord has

standing to assert the equal-protection rights of his lessee.

See, e.g., Craig v. Boren, 429 U.S. 190, 195 (1976); Village

of Arlington Heights v. Metropolitan Housing Development

Corp., 429 U.S. 252, 263-64 (1977). While important, this

principle does not support of free-standing protection from

retaliation, whether or not the direct victim supports its

advocate’s advocacy. Cf. 45 C.F.R. § 81.12 (“Any individual

acting in a representative capacity in any proceeding may be

required to show his authority to act in such capacity”); 34

C.F.R. § 101.12 (same).

The authorities that counsel for interpreting Title IX to

include third-party advocacy protections involve other

statutory schemes, adopted without the Spending Clause’s

need for unambiguous congressional notice to the federal

recipient of the terms of its bargain with the federal

government. Barnes v. Gorman, 536 U.S. 181, 186 (2002).

Further, although those cases construe statutes under

Congress’ more generous remedial powers (e.g., the Equal

Protection Clause, the Thirteenth Amendment), they are at

bottom cases of statutory construction. Each lacks the clear

Russello inference that the Civil Rights Act of 1964

provides: namely, Title VII has a retaliation provision, and

Title VI does not. By choosing a Title VI template for Title

IX, Congress thus omitted statutory retaliation protections.

Given this basic statutory difference, Coach Jackson cannot

argue that Congress would have expected the Court to

interpret Title IX in light of Little Hunting Park. See

Sandoval, 532 U.S. at 288 (rejecting such the “contemporary

legal context” argument).*

In its amicus curiae brief support of Coach Jackson’s

_petition for certiorari (hereinafter “U.S. Br.”), amicus curiae

United States cites testimony from 1970 hearings on the

prevalence of retaliation against women in academia. See

U.S. Br. at 8-9 n.1. Although the hearings chronicle

significant wrongs, they do not approach the retaliation

against African Americans in the period leading up to the

enactment of the Civil Rights Act of 1964. See Diane

McWhorter, Carry Me Home: Birmingham, Alabama - The

Climactic Battle of the Civil Rights Revolution, passim

(2002). If, on that record, Congress could omit retaliation

protections from Title VI of the Civil Rights Act of 1964, it

certainly could omit them from Title [IX of the Education

Amendments of 1972.

For all the foregoing reasons, CSC submits that — if no

Title IX regulations existed - a would-be plaintiff could not

* In a somewhat oblique way, this Court already has concluded that

retaliation protections are not the same right as the underlying equal-

protection right. See Great American Federal Sav. & Loan Ass'n v.

Novotny, 442 U.S. 366, 387-88 (1979) (“Clearly [the] right under

§ 704(a)— to be free from retaliation for efforts to aid others asserting

Title VII rights -is distinct from the Title VII right [of] employees not to

be discriminated against on the basis of their sex”) (White, J. dissenting).

Writing for himself and Justices Brennan and Marshall, Justice White

dissented from the majority’s resolution of the question there presented:

namely, the availability of relief under 42 U.S.C. § 1985(3). 442 US. at

385-86. Had it considered the plaintiff-advocate to have a right under

Title VII, presumably the majority would not have ruled for the

defendant.

credibly assert an implied private right of action against a

federal recipient to protect his or her advocacy on behalf of

third parties.

Il. IF THEY FOLLOW THE REGULATIONS,

EDUCATORS MAY HAVE A PRIVATE RIGHT

As this Court recognized in Sandoval, substantive

agency regulations fall into two categories: (1) those that

authoritatively construe statutory terms (and thus statutory

rights), and (2)those that extend to conduct that the

underlying statute does not reach. The first category is as

privately actionable as the underlying statute, 532 U.S. at 284

(“Such regulations, if valid and reasonable, authoritatively

construe the statute itself[,] and it is therefore meaningless to

talk about a separate cause of action to enforce the

regulations apart from the statute”), but the second category

cannot support a private action at all. 532 U.S. at 291

(“Agencies may play the sorcerer's apprentice but not the

sorcerer himself’). If the retaliation regulation is valid,

applies by its terms to the facts here, and falls into the first

category, the Court should remand for further proceedings.

If, however, the regulation falls into the second category, the

Court should affirm the dismissal.

This section undertakes to classify the retaliation

regulation into the appropriate one of those two categories.

Assuming arguendo both that the Court concurs with CSC

that the statute lacks a private retaliation action in the

absence of a regulation (Section I, supra) and that the Court

will not overrule Sandoval, this classification exercise

represents the primary question raised by this litigation to

date. Before classifying the retaliation regulation, however,

CSC first must analyze the judicial deference owed to it.

10

A. Title IX Regulations Warrant Skidmore — Not

Chevron — Deference

In its brief in support of certiorari, amicus curiae United

States posits that DE’s regulations warrant deference under

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

467 U.S. 837 (1984). U.S. Br. at 10. Because the weaker

deference under Skidmore v. Swift & Co., 323 U.S. 134

(1944), should apply, amicus curiae CSC analyzes the

deference appropriate to DE’s (or any other agency’s) Title

IX regulations, rules, or orders of general applicability.

Under the separation-of-powers principles that underlie

Chevron, courts owe deference to an agency’s construction

of a statutory scheme that Congress charged the agency to

administer. Chevron, 467 U.S. at 843-44, 865-66. Indeed,

under such a grant of authority, an agency’s regulation issued

to fill a statutory gap is binding on the courts, unless

procedurally defective, arbitrary and capricious in substance,

or manifestly contrary to the statute. Chevron, 467 U.S. at

844. Consistent with this underlying principle, this Court

routinely has deferred to agencies acting within the

permissible scope of delegated authority in both the civil

rights* and general administrative® contexts.

* In Trafficante v. Metropolitan Life Insurance Co., 409 U.S. 205,

210 (1972), the Court accorded “great weight” to a “consistent

administrative construction” of the Civil Rights Act of 1968, in which

Congress delegated “authority and responsibility for administering this

Act [tojthe Secretary of Housing and Urban Development.” 42 U.S.C.

§ 3608(a). Similarly, the Supreme Court held that guidelines issued by

the Equal Employment Opportunity Commission (“EEOC”) were entitled

to great deference, Griggs v. Duke Power Co., 401 U.S. 424, 433-34

(Footmote cont'd on next page)

1]

By contrast, in the absence of delegated authority

justifying Chevron deference, an agency regulation lacks the

force and effect of law to bind the courts, and instead

receives onlythe deference warranted by:

the thoroughness evident in its consideration, the

validity of its reasoning, its consistency with earlier

and later pronouncements, and all those factors

which give it the power to persuade, if lacking

power to control

United States v. Mead Corp., 533 U.S. 218, 227-28 (2001)

(quoting Skidmore, 323 U.S. at 140); Bragdon v. Abbott, 524

U.S. 624, 642 (1998) (same’. While the retaliation regulation

(Footnote cont'd from previous page.)

(1971), in a context in which Congress delegated enforcement authority

and rulemaking authority specifically to EEOC. See 42 U.S.C. §§ 2000e-

5, 2000e-12. In Thorpe v. Housing Authority of City of Durham, 393 U.S.

268. 280-81 (1969), the Court indicated that it would sustain the

Secretary of Housing and Urban Development's interpretation if

“reasonably related to the purposes of the [United States Housing Act],”

in which Congress authorized the Secretary to “make, amend, and rescind

such rules and regulations [necessary to] carry out the provisions of this

Act.” Pub. L. No. 93-383, Title I], § 8; 50 Stat. 653, 891 (1937)

(recodified at 44 U.S.C. § 3535(d)).

* In Udall v. Tallman, 380 U.S. 1, 17 (1965), the Court deferred to an

agency order issued under an Executive Order that the President had

delegated to the agency to implement and revise. See also Mourning v.

Family Publication Services, Inc., 411 U.S. 356, 369 (1973), in which

the Court deferred to the Federal Reserve Board's interpretation of the

Truth in Lending Act, in which Congress authorized the Board to

“prescribe regulations to carry out the purposes of this subchapter.” 15

U.S.C. § 1604(a).

12

represent a consistent position since 1964, HEW appears to

have simply inserted its Title VI provision into its Title IX

program, without considering the First Amendment issues

raised by Title IX. As discussed in Section IB, infra,

however, these factors counsel against deference.

1. Education Amendments of 1972

At the outset, because Title IX merely implements the

constitutional standard against intentional discrimination,

this Court has no reason to defer to an agency’s expertise.

With education protected by the First Amendment, Grutter v.

Bollinger, 539 U.S. 306, 328-29 (2003), and traditionally

regulated by the states and localities, Epperson v. Arkansas,

393 U.S. 97, 104 (1968), this Court should require either a

clear constitutional violation or unambiguous congressional

statement before ratifying an agency’s encroaching into a

school’s otherwise constitutional prerogatives. Solid Waste

Agency of Northern Cook County v. U.S. Army Corps of

Engineers, 53i U.S. 159, 174 (2001) (clear congressional

statement required to upset the state-federal balance in areas

of traditional state or local control).’

As explained below, moreover, Congress expressly and

intentionally provided not HEW but each agency the

” See also N.L.R.B. v. Catholic Bishop of Chicago, 440 U.S. 490,

499-500 (1979); Bowen v. American Hospital Association, 476 U.S. 610,

643-44 (1986) (plurality) (“Congress therefore ‘will not be deemed to

have significantly changed the federal-state balance”- or to have

authorized its delegates to do so — ‘unless otherwise the purpose of the

Act would be defeated’) (citations omitted, emphasis added); Raygor v.

Regents of University of Minnesota, 534 U.S. 533, 543-44 (2002).

13

authority to issue Title [X rules, regulations, and orders, 20

U.S.C. § 1682, and such multi-agency delegations trigger the

weaker Skidmore deference. Bragdon v. Abbott, 524 US. at

642: Mead Corp., 533 U.S. at 227-28; Bowen v. American

Hospital Association, 476 U.S. at 643 n.30; Moreover, with

regulatory authority only to effectuate the intentional-

discrimination provisions of 20 U.S.C. § 1681(a), Title IX

has nothing like the Clean Air Act’s broad delegation in

Chevron. Compare 20 U.S.C. § 1682 (authorizing agencies

to issue regulations to effectuate the intentional-

discrimination standard of § 168l(a)) with 42 U.S.C.

§ 7601(a)(1) (“The Administrator [of the Environmental

Protection Agency] is authorized to prescribe such

regulations as are necessary to carry out his functions under

this chapter”).

Finally, the legislative path through which Congress

arrived at Title [X's regulatory delegation further

demonstrates that Congress did not delegate special

interpretative authority to HEW. Senator Bayh’s 1971

proposed amendment (which did not pass) explicitly

delegated rulemaking authority only to the Secretary of

HEW. 117 Cong. Rec. 30,399, 30,404 (1971) (Amendment

398): accord at id. at 30,407 (Sen. Bayh). Senator Bayh’s

1972 amendment (which passed and became Title IX)

delegates rulemaking authority to all federal agencies that

dispense federal funds. 118 Cong. Reg. 5803 (1972)

(Amendment 874) “Few principles of statutory construction

are more compelling than the proposition that Congress does

not intend sub silentio to enact statutory language that it has

earlier discarded in favor of other language.” INS v.

Cardoza-Fonseca, 480 U.S. 421, 442-43 (1987) (citation

omitted). Because Congress purposefully replaced the

14

Secretary of HEW with “each agency,” Title IX clearly did

not grant any special authority to HEW.

2. Education Amendments of 1974

During the Senate’s consideration of the Education

Amendments of 1974, Senator Tower introduced an

amendment to exempt revenue-producing intercollegiate

athletics from Section 901l(a) and to require the

Commissioner of Education to publish proposed Title IX

regulations within 30 days. 120 Cong. Rec. 15,322-23 (1974)

(Amendment 1343). In doing so, he stated that his review of

the legislative history indicated that Title IX did not extend

to athletics, but offered his amendment merely to clarify

that — if a court found Title [X to apply to athletics — it would

not apply to revenue-producing sports. /d. at 15,323. He

further stated that, the requirement that the Commissioner

publish proposed rules was “not intended to confer on HEW

any authority it does not already have under the act.” Jd.

The Conference Committee amended the “Tower

Amendment” — in the process, rechristening it the “Javits

Amendment” -— to amend the athletics provision and to

require the HEW Secretary (in place of the Commissioner of

Education) to publish the proposed regulations. Compare

H.R. 69, § 536 (Tower Amendment), reprinted in 120 Cong.

Reg. 15,444, 15,477 (1974) with Pub. L. No. 93-380, § 844,

88 Stat. 484, 612 (1974) (Javits Amendment). The

Conference Report indicates that the conference substitute

* See 40 Fed. Reg. 24,128, 24,134 (1975) (referring to the conference

amendment the “Javits Amendment’).

15

adopts the Senate’s rulemaking provision, but modifies the

athletics provision.” Conf. Rep. 93-1026, reprinted in 1974

U.S.C.C.A.N. 4206, 4271. The Conference Committee gave

no indication that it made any other changes. /d.

Because it is axiomatic that an agency has no authority

beyond that expressly delegated to it, Bowen v. Georgetown

University Hosp., 488 U.S. 204, 208 (1988), and that judicial

deference applies only when the agency acts within the scope

of its delegation. Chevron, 467 U.S. at 865, the Javits

Amendment provides no justification for deference. First, the

Javits Amendment directs the Secretary of HEW to issue not

a final rule. but merely a proposed rule, which as such

commands no deference.'* Second, assuming arguendo that it

confers authority, the Javits Amendment confers only the

one-time authority to issue a proposed rule within 30 days of

the enactment of the Education Amendments of 1974. As

such, courts would owe any deference only to HEW’s 1974

proposal, not to HEW’s 1975 final rule or to any agencies’

~

Specifically, the Javits Amendment replaced the exemption for

revenue-producing sports with a requirement that the proposed

reguianons “include with respect to intercollegiate athletic activities

reasonable provisions considering the nature of particular sports.” Pub. L.

No. 93-380, § 844, 88 Stat. at 612.

© See, e.g., Public Citizen, Inc. v. Shalala, 932 F.Supp. 13, 18 n.6

(D.D.C. 1996) (citing Public Citizen Health Research Group v.

Commissioner, Food & Drug Administration, 740 F.2d 21, 32-33

(D.C.Cir.1984)) (proposed rules does not warrant deference); Matter of

Appletree Markets, Inc., 19 F.3d 969, 973 (S® Cir. 1994) (“inappropriate

to defer to proposed regulations”); Utah Wilderness Alliance v. Dabney,

222 F.3d 819, 829 (10th Cir.2000) (non-final agency policies not entitled

to Chevron deference).

16

subsequent actions, proposed or final. Unlike the

congressional delegation of legislative authority to an

executive agency under Chevron, such temporary, special-

circumstance delegations do not elevate the delegate. Cf.

United States v. Eaton, 169 U.S. 331, 343 (1898) (“Because

the subordinate officer is charged with the performance of

the duty of the superior for a limited time and under special

and temporary conditions he is not thereby transformed into

the superior and permanent official’’).

In short, the Javits Amendinent is nothing like the broad

delegation of rulemaking authority at issue in Chevron. To

the contrary, far from granting new authority, the Javits

Amendment merely prods a recalcitrant agency to carry out

the first step of a rulemaking process that Title [IX already

authorized and directed HEW (and every other agency) to

take. See 20 U.S.C. § 1682.

3. Congressional Acquiescence

When HEW issued the initial Title [X regulations in

1975, it submitted them to Congress pursuant to the “laying

before” process of the General Education Provisions Act, 20

U.S.C. § 1232, then in effect. See North Haven, 456 U.S. at

533-34. Notwithstanding the general unreliability of post-

enactment legislative history and congressional inaction, e.g.,

Brown v. Gardner, 513 U.S. 115, 121 (1994) (Congressional

inaction frequently results from inter alia “paralysis”), when

this Court subsequently upheld the Title [IX employment

regulations, it found Congress’ passive acquiescence to

bolster the view that the regulations correctly interpreted

congressional intent. North Haven, 456 U.S. at 533-34.

Because the Court did not recognize an implied private nght

of action until 1979, however, and has never addressed the

17

issue here (namely, whether a regulatory limitation on a

regulatory right is jurisdictional), congressional acquiescence

cannot serve as a reliable indicator of congressional intent in

this case.

4. Department of Education Organization Act

Assuming arguendo that Title IX or the Javits

Amendment conferred any unique authority on HEW or the

HEW Secretary, DE nonetheless cannot lay claim to that

authority. In splitting HEW into DE and the Department of

Health & Human Services (“HHS”), the Department of

Education Organization Act, Pub. L. No. 96-88, 93 Stat. 668

(1979) (“DEOA”) reserved to HHS all functions not

transferred to Education. 20 U.S.C. § 3508(b). As explained

below. DEOA did not transfer either Title [IX or the Javits

Amendment. Consequently, one of two situations applies:

(1) as inheritor of all non-transferred HEW authority, HHS is

the Title [IX czar, or (2) consistent with their plain language

and legislative histories, neither Title IX nor the Javits

Amendment confer any interpretive authority on HEW, HHS,

DE, or any other agency.

DEOA Section 301 transferred “functions” from HEW

and its officers to DE and its officers. See 20 U.S.C.

§ 3441(a)(1)-(6), (b). Subsections 301(a)(1), (a)(5), (a)(6),

and (b) transfer functions of various education-related

subordinate officers, offices, and councils within HEW,

which by their terms do not address either HEW’s Title IX

authority or the HEW Secretary’s Javits Amendment

authority. Likewise, Subsection 301(a)(4) transferred HEW

functions under the Rehabilitation Act of 1973 and certain

HEW functions administered by the Commissioner of

Rehabilitation Services. And Subsection 301(a)(2)

18

transferred all HEW functions under seventeen enumerated

statutes, which do not include either Title [IX or the Javits

Amendment. Compare 20 U.S.C. § 3441(a)(2) (list of

transferred functions) with 20 U.S.C. § 1682 (Title IX

rulemaking authority) and Pub. L. No. 93-380, § 844, 88

Stat. 484, 612 (1974) (Javits Amendment).

The only potentially relevant subsection, Subsection

301(a)(3),"' transferred “all [HEW] functions with respect to

or being administered by the [HEW] Office of Civil Rights

which relate to functions transferred by this section.” 20

U.S.C. § 3441(a)(3). Because it applies only to “functions

transferred by this section,” it does not include rulemaking

authority under Title [IX or the Javits Amendment, which

Section 301 did not transfer. Further, as distinct from

enforcement authority, HEW’s rulemaking authority was

administered by the HEW Secretary, and thus was not “being

administered by the Office of Civil Rights,” as required for

Subsection 301(a)(3) to apply.”

'! In dicta without analysis, this Court indicated that Subsection

301(a)(3) transferred Title [X authority to the newly created DE. North

Haven, 456 U.S. at 516 n.4. North Haven involved litigation commenced

against HEW but completed against DE, and the cited footnote explains

the Court’s convention to refer to the government party as “HEW.” Jd.

Although it did not matter whether HHS or DE defended the employment

regulations in North Haven, amicus curiae CSC respectfully submits that

the North Haven dicta misstates the impact of Subsection 301(a)(3).

'2 Had the DEOA transferred the HEW Office of Civil Rights to DE,

as the Senate Bill proposed, one could make a strained argument that

Subsection 301(a)(3)’s “relates-to” clause includes any “function” related

to any authority wielded by that Office. But the Senate receded to the

House in Conference, and the DEOA created a new Office of Civil Rights

(Footnote cont'd on next page)

19

In sum, nothing in Section 301 or elsewhere in the

DEOA transfers rulemaking authority to DE. Instead, like

any other agency, DE draws its rulemaking authority from

Title IX itself, which authorizes and directs each federal

agency to issue Title [IX regulations. 20 U.S.C. § 1682. Thus,

under this authority, DE issued regulations upon its

formation in 1980, 34 C.F.R. pt. 106, while HHS retained the

original HEW regulations, 45 C.F.R. pt. 86.

B. Regulations that Define Statutory Terms

As indicated above, Sandoval recognized that

authoritative regulations that construe statutory terms are

enforceable to the same extent as the underlying statute. 532

U.S. at 284; see also Wright v. City of Roanoke

Development & Housing Authority, 479 U.S. 418, 419-23

(1987). Thus, for example, if the retaliation regulation

defines “discrimination” as used in Section 901(a), an

appropriate plaintiff could enforce the regulation under the

implied private right of action to enforce Section 901(a)."”

(Footnote cont'd from previous page.)

within DE instead of transferring HEW’s Office of Civil Rights. See H.R.

Conf Rep. 96-459, 46-47, reprinted in 1979 U.S.C.C.A.N. 1612, 1626;

20 U.S.C. § 3413 (creating DE’s Office of Civil Rights). Thus, the

strained argument is neither availing nor available.

‘> In support of the petition for certiorari, amicus curiae United States

claimed that the Department of Education's Office of Civil Rights’ policy

guidance on sexual harassment demonstrates an agency view that Title IX

(the statute) prohibits retaliation. See U.S. Br. at 10. The off-hand

discussion in that document fails to distinguish between (1) Section

901(a) itself, and (2) “Title LX” writ large as the totality of the Title IX

(Footnote cont'd on next page)

20

Amicus curiae CSC is not aware of any

contemporaneous documents that indicate that HEW

intended its retaliation regulation to define Section 901(a), as

distinct from issuing a procedural rule to effectuate that

section.'* 20 U.S.C. § 1682. Because an agency action can be

upheld only on the basis that the agency articulated, Motor

Vehicle Ass'n v. State Farm Mut. Automobile Ins. Co., 463

U.S. 29, 50 (1983), it appears unlikely that Coach Jackson

(or even DE) now could claim that the retaliation regulation

defines Section 901(a).

(Footnote cont'd from previous page.)

regulatory regime. See 62 Fed. Reg. 12,034, 12,044 (1997) (“because

retaliation is prohibited by Title [X, schools may want to include a

provision in their procedures prohibiting retaliation against any individual

who files a complaint or participates in a harassment inquiry”). As such,

the document simply begs the question: namely, which prohibits

retaliation, the statute or the regulation” At any rate, no rule, regulation,

or order of general applicability takes effect until signed by the President,

20 U.S.C. § 1682, 110 Cong. Rec. 2499, or- since 1980- by the

Attorney General, 46 Fed. Reg. at 29,704. Because it qualifies as an

interpretive “rule” or “order” of general applicability, 5 U.S.C. § 551(4);

FTC ». Standard Oil Co. of California, 449 U.S. 232, 238 n.7 (1980)

(“order” means “the whole or a part of a final disposition... of an

agency in a matter other than rule making”), DE’s failure to comply with

20 U.S.C. § 1682 renders the document immaterial to this or any other

litigation.

'* The elimination of gender discrimination constitutes a matter of

public concern about which public employees would have First

Amendment rights “to speak out freely... without fear of retaliatory

dismissal.” Pickering v. Board of Ed. of Township High School Dist. 205,

391 U.S. 563, 572 (1968); Connick v. Myers, 461 U.S. 138, 149 (1983)

(same). The viability of Coach Jackson’s asserting a First Amendment

claim is not before this Court.

21

Even if the retaliation regulation authoritatively

construes Title IX, however, Coach Jackson may not have a

private right of action for at least three reasons. First, it is not

at all clear that his amended complaint states a claim under

the retaliation regulation. Second, accepting that a valid

regulation could authoritatively construe Title [IX to prohibit

certain retaliatory acts, the retaliation regulation here appears

invalid. Third, as indicated in Section III, infra, Coach

Jackson’s apparent failure to meet the regulatory

preconditions for bringing suit would foreclose a private

right of action created by regulation.

By its terms, the retaliation regulation protects only two

types of activity: (1) statutorily protected activity, and

(2) participation in a regulatory enforcement proceeding. 45

C.F.R. § 80.7(e); 34 C.F.R. § 100.7(e).'* Without a regulatory

proceeding, Coach Jackson must allege a statutory violation

in order to fall under the terms of the retaliation regulation.

In { 7 of his amended complaint, Coach Jackson alleges

that he advised his supervisor of “gender discrimination”

against his_team, his team’s being prohibited from using

various equipment including a locked “sports facility” to

which his team lacked a key, and “serious infractions”

regarding unspecified “expense accounts.” In his petition for

certiorari, Coach Jackson clarifies that his “girls’ team was

'* Because no President before 1980 and no Attorney General since

1980 has signed the DE regulations, those regulations have not yet taken

effect. 20 U.S.C. § 1682. Because the DEOA’s savings clause continues

the HEW regulations (i.e., the HHS regulations) in effect until DE

modifies them, 20 U.S.C. § 3505(a), amicus curiae CSC cites the current

HHS regulations as well as the DE regulations.

22 :

denied equal funding and equal access to athletic equipment

and facilities.” Pet. for Cert. at 3.

As clarified, Coach Jackson nevertheless still has not

asserted a claim for intentional gender-based discrimination

(i.e., actions taken because of gender, as opposed to in spite

of it). Although one perhaps could infer a “disparate-

treatment claim,” such a claim “requires proof of a

discriminatory purpose,” Teamsters v. United States, 431

U.S. 324, 335-336, n. 15 (1977), which the amended

complaint does not allege. Further, standing alone, with no

allegation of intentional Ciscrimination, disparate funding is

not a regulatory violation, 45 C.F.R. § 84.41(c) (“unequal

expenditures for male and female teams if a recipient

operates or sponsors separate teams will not constitute

noncompliance with this section”), 34 C.F.R. § 106.41(c)

(same), much less a statutory violation.

Further, the retaliation regulation appears to create a

strict-liability regime for any action to “intimidate, threaten,

coerce, or discriminate against any individual for the purpose

of interfering with any right or privilege secured by” Section

901(a). 45 C.F.R. § 80.7(e); 34 C.F.R. § 100.7(e). In the

First-Amendment context, however, this Court has allowed a

government actor to avoid liability for retaliation or

discrimination by proving that it would have made the same

decision without the impermissible motive. Texas v. Lesage,

528 U.S. 18, 21 (1999). In a related First Amendment

context, the Court deemed invalid a National Labor Relations

Board standard for imposing liability on retaliatory lawsuits

that were unsuccessful, but nonetheless also reasonably

based. BE & K Const. Co. v. N.L.R.B., 536 U.S. 516, 535-37

(2002). Under this admittedly cursory analysis, it appears

23

likely that the Title [X retaliation regulation is overbroad and

thus invalid.

C. Regulations that Expand on Statute

In Sandoval, this Court held that regulations that expand

on the statutory prohibition could not form the basis for a

private right of action. 532 U.S. at 291. Although Sandoval

involved a regulatory disparate-impact standard, and this

case involves a regulatory prohibition against an intentional

act (namely, retaliation), that is a distinction without a

difference. To the extent that an agency’s regulation expands

upon a statutory provision, the regulation cannot support a

private right of action. 532 U.S. at 291. This case presents no

reason to reverse Sandoval.

Ill. SPENDING-CLAUSE LEGISLATION CANNOT

IMPOSE LIABILITY WITHOUT NOTICE

This Court analogizes Spending-Clause programs to a

contract struck between the government and recipients, with

the public as third-party beneficiaries. Gorman, 536 U.S. at

186. To impose conditions on recipients, Congress must

express statutory conditions unambiguously. /d. Provided it

receives that notice, the recipient becomes subject to

enforcement for intentional violations of the statute, either by

the government or by the injured public. 536 U.S. at 187-89.

In Cannon, this Court held that the victim of statutory

discrimination could bring her implied statutory right of

action without first exhausting administrative remedies. 441

U.S. at 687-89 & n.8 (discussing history of HEW

interpretations regarding exhaustion of administrative

remedies). But just as Sandoval confined Cannon to implied

rights of action for statutory discrimination, this case should

24

confine the Cannon to omitting exhaustion requirements only

for statutory discrimination.

By contrast, when a regulation creates the provision

being enforced, the regulation’s other components are an

integral part of the bargain that the third-party beneficiary

would enforce. In other words, to ensure the notice required

for Spending-Clause litigation, the third-party beneficiary

must comply with the regulatory preconditions to suit. See 45

C.F.R. § 80.8(a),(d) (requiring administrative complaint,

review by DE officials, and pre-litigation notice); 34 C.F.R.

§ 100.8(a), (d) (same). Rather than “cherry pick” from

among the regulations to enforce, “under traditional

principles of contract interpretation,... third-party

beneficiaries generally have no greater rights in a contract

than does the promise.” United Steelworkers of America, v.

Rawson, 495 U.S. 362, 375 (1990) citations omitted).

Had Coach Jackson filed an administrative complaint

before this lawsuit, the parties may have settled without the

burden and expense of litigation. If education generally and

sports particularly continue to exact high litigation costs,

schools may become reluctant (or even unable) to offer such

non-core programs, no matter how invaluable to students.

Perhaps worse, the fear of such awards could chill schools’

First Amendment autonomy. If, contrary to the allegations in

his amended complaint ({ 2), Coach Jackson failed to satisfy

all conditions precedent to bringing suit, this Court should

give Birmingham the benefit of its bargain: namely, no

litigation exposure without the regulatory compliance

process.

25

To dispose of the case before it, the Court could apply

any of several narrow theories. Alternatively, the Court

expansively could address the issues raised here, remanding

if necessary to determine whether Coach Jackson’s action

can survive. Whatever the disposition, amicus curiae CSC

respectfully submits that an expansive ruling will best serve

educational institutions and educators alike, and thus the

end-users of education: the students.

August 19, 2004 Respectfully submitted,

LAWRENCE J. JOSEPH

2121 K Steet, NW, Suite 800

Washington, DC 20037

Tel: 202-669-5135