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

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URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385014_0663%3A15

## Record

- **Collection:** Supreme Court brief
- **Document type:** Amicus Curiae Brief
- **Published:** January 1, 2005
- **Citation:** 544 U.S. 167

## Text

(~~ 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

---

Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385014_0663%3A15. Public record. Not legal advice.