Private Right of Action and Individual Relief through Agency Action

The Supreme Court has established that individuals have an implied private right of action under Title IX (and Title VI and Section 504). The Court has stated that it has "no doubt that Congress...understood Title VI as authorizing an implied private right of action for victims of illegal discrimination." See Cannon v. University of Chicago, 441 U.S. 677 (1979) (holding that an individual has a private right of action under Title IX). In addition, several courts of appeals have held that plaintiffs have a private right of action to enforce the disparate impact regulations implementing Section 602 of Title VI. See Sandoval v. Hagan, 7 F. Supp. 2d 1234, 1253 (M.D. Ala. 1998), aff"d, 197 F.3d 484 (11th Cir. 1999), cert. granted sub. nom. Alexander v. Sandoval, __ U.S. __, 121 S. Ct. 28, 2000 WL 718812 (U.S. Sep 26, 2000)(NO. 99-1908); Powell v. Ridge, 189 F.3d 387 (3d Cir. 1999).

In Sandoval, the court found that a reading of Lau, Guardians, and Alexander, in pari materia supported the finding of an implied private cause of action under Section 602 of Title VI. 197 F.3d 484, 507 (11th Cir. 1999). Likewise, in Powell v. Ridge, 189 F.3d 387, 397-400 (1999), the Third Circuit Court of Appeals recognized an implied private right of action to enforce regulations promulgated pursuant to Section 602 of Title VI. The Second Circuit, however, declined to reach the issue of whether a private right of action may be brought under regulations implementing Section 602 and let stand the lower court's ruling that a private right of action is not available to plaintiffs bringing suit pursuant to Section 602. New York City Envtl. Justice Alliance v. Giuliani, 214 F.3d 65, 72-73 (2d Cir. 2000) rev"d on other grounds, 50 F.Supp. 2d 250 (1999). The Supreme Court will likely definitively decide this issue when it hears Sandoval. Because Title IX was derived from Title VI, the Supreme Court's decision in this matter will impact the judicial interpretation of Title IX.

Many circuits have ruled that individuals may not bring suit against the federal government for failure to enforce Title IX (and Section 504 and Title VI). See Jersey Heights Neighborhood Ass"n v. Glendening et al., 174 F.3d 180 (4th Cir. 1999); Washington Legal Found. v. Alexander, 984 F.2d 483, (D.C. Cir. 1993); Women's Equity Action League v. Cavazos (WEAL II), 906 F.2d 742 (D.C. Cir. 1990). In Jersey Heights, plaintiffs, African-American landowners, filed suit against the U.S. Department of Transportation, among others, claiming that it abdicated its duties under section 602 of Title VI to eliminate discrimination in federally-funded programs by failing to terminate funds to recipients who failed to comply with Title VI. The Fourth Circuit found that Title VI provides two avenues of recourse to address discrimination by federal funding agencies: private right of action against recipients of federal financial assistance and petition to the federal funding agency to secure voluntary compliance by its recipients. After reviewing the legislative history of Title VI, the court concluded that Congress did not intend for aggrieved parties "to circumvent that very administrative scheme through direct litigation against federal agencies." 174 F.3d at 191.

Similarly, the court in WEAL II, ruled that, absent congressional authorization, individuals do not have a private right of action against the federal government under Title VI, Title IX, or Section 504.125 906 F.2d at 752. Citing the Supreme Court's examination of the legislative history of Title VI in Cannon, the court found that Congress did not intend for private suits to be brought against the federal funding agencies. Id. at 748. The WEAL II court further concluded that because individuals already have an adequate remedy through private rights of action against the recipients of federal financial assistance, individuals could not maintain a cause of action against the federal funding agency to compel enforcement of Title VI under the Administrative Procedure Act, the Mandamus Act, or the Constitution. Id. at 752. One possible exception to these court rulings might be a situation where the federal funding agency makes a finding that a recipient is in violation of Title VI but, nonetheless, refuses to enforce its own determination. See Washington Legal Found. v. Alexander,126 984 F.2d at 488.

The most common form of relief sought and obtained through a private right of action is an injunction ordering a recipient to do something. See Cannon, 441 U.S. 667. See also, United States v. Baylor Univ. Med. Ctr., 736 F.2d at 1050, in which the Fifth Circuit held that a court can order termination of federal financial assistance as a remedy. The Supreme Court also has held that individuals may obtain monetary damages for claims of intentional discrimination under Title IX. See Franklin, 503 U.S. at 75 n.8. As discussed below, agencies are encouraged to identify and seek the full complement of relief for complainants and identified victims, where appropriate, as part of voluntary settlements, including, where appropriate, not only the obvious remedy of back pay for certain employment discrimination cases, but also compensatory damages for violations in a nonemployment context. Agencies are also asked to recommend the scope of relief to be sought in referrals of matters to the Department of Justice for judicial enforcement.

A.    Entitlement to Damages for Intentional Violations

As noted above, in addition to agency enforcement mechanisms, private individuals have an implied right of action under Title IX and damages may be available in such lawsuits. In Cannon, 441 U.S. 677, a female applicant who was denied admission to two medical schools brought a private lawsuit against the schools alleging violations of Title IX. The Supreme Court in Cannon reasoned that since Title IX had been patterned after Title VI and Title VI had previously been construed to allow a private right of action, that Congress intended similar remedies to be available under Title IX. The important point is that the court determined that exhaustion of administrative remedies was not required under Title IX. The court recognized that although the available administrative remedy (termination of funds) may be appropriate to prevent the use of federal funds to support discriminatory practices, it may not be appropriate as a remedy in cases in which an individual needs reinstatement or other protection against discriminatory practices. "The award of individual relief to a private litigant who has prosecuted her own suit is not only sensible but is also fully consistent with–and in some cases even necessary to–the orderly enforcement of the statute. Id. at 706-707. In addition, the Supreme Court has ruled that monetary damages are an available remedy in private actions brought to enforce Title IX for alleged intentional violations. See Franklin, 503 U.S. at 72-75, Consolidated Rail Corp. v. Darrone, 465 U.S. 624 at 630-31 (1984).

Franklin contains a detailed discussion on the merits of allowing monetary damages for intentional violations of Title IX. Id. at 71-76. The Court placed great reliance on the "longstanding rule" that where a federal statute provides (expressly or impliedly) for a right to bring suit, federal courts "presume the availability of all appropriate remedies unless Congress has expressly indicated otherwise." Id. at 66.127 The Court found no congressional intent to abandon this presumption in the enforcement of Title IX.128 Accordingly, the Court concluded that private individuals may obtain damages in appropriate cases.

Throughout its opinion, the Franklin Court broadly referred to the relief being sanctioned as "monetary damages." Although the Court did not define this term, it specifically rejected limiting Title IX plaintiffs to monetary relief that is equitable in nature, such as backpay. See Id. at 75-76.

B.    Availability of Monetary Damages in Other Circumstances

In Franklin, the Supreme Court was not called upon to rule whether monetary damages are available where other types of discrimination are proven. Nonetheless, the Court noted that unintentional discrimination may present a different legal question, and damages may not be available. Id. at 74.129 Awarding damages may be particularly problematic where the violation rests on a "disparate impact" theory of discrimination. See Guardians, 463 U.S. at 595-603 (Opinions of White, J.).

C.    Recommendations for Agency Action

In incorporating the damages remedy into agency compliance activities, agencies will need to decide when damages should be sought as part of a voluntary compliance agreement and, if damages, are requested, the amount of emphasis to be placed on the damages request in compliance negotiations. Agencies will want to ensure that the damages remedy is implemented in a manner consistent with other enforcement goals and policies, in a manner consistent among compliance agreements, and in a manner that protects the flexibility of the voluntary compliance process. To effectuate these goals, agencies may wish to draft written guidelines, and establish special supervisory procedures and internal reporting requirements.

There are several considerations that may be relevant in deciding how to exercise administrative discretion in applying the damages remedy in particular cases. One factor may be the degree of seriousness of the violation. A second factor may be whether the injury is substantial. A third factor may be whether the injury is pecuniary in nature. Since pecuniary losses represent a concrete injury and are relatively straightforward to measure, they may represent a type of loss for which damages almost always should be sought. Injuries involving "emotional distress" also should be addressed, but may require closer analysis. A fourth factor may be whether the discrimination victim has a current, ongoing relationship with the recipient that involves regular interactions between the two. If such a relationship exists and prospective relief is obtained that benefits the victim, that may weigh against providing compensation for any nonpecuniary injury that is relatively slight.

Another issue is how agencies should respond to requests by recipients that discrimination victims sign a liability release in order to obtain a damages award through a compliance agreement. As a practical matter, agencies likely will need to be open to including such a release in any agreement that provides for damages, if requested by the recipient.

D.    Lack of States" Eleventh Amendment Immunity Under Title IX

The Eleventh Amendment bars a State from being sued by a citizen of the State in federal court.130 Since 1890, the Supreme Court has consistently held that this Amendment protects a State from being sued in federal court without the State's consent. See Seminole Tribe of Fla. v. Florida, 517 U.S. 44, 54 n.7 (1996)(cases cited). However, federal courts have jurisdiction over a State if the State has either waived its immunity or Congress has abrogated unequivocally a State's immunity pursuant to valid powers. See id. at 68. Congress has unequivocally done so with respect to Title IX and related statutes.

In 1986, Congress enacted 42 U.S.C. 2000d-7 as part of the Rehabilitation Act Amendments of 1986, Pub. L. No. 99-506, tit. X, §1003, 100 State. 1845 (1986), to abrogate States" immunity from suit for violations of Title IX, Section 504, Title VI, the Age Discrimination Act, and similar nondiscrimination statutes. See Lane v. Pena, 518 U.S. 187, 198 (1996) (court states in dicta that Congress intended to abrogate the States" Eleventh Amendment immunity for purposes of Title IX). Section 2000d-7 states:

(1) A state shall not be immune under the Eleventh Amendment of the Constitution of the United States from suit in Federal court for a violation of section 504 of the Rehabilitation Act of 1973 [29 U.S.C.A. §794, title IX of the Education Amendments of 1972 [20 U.S.C.A. §1681 et seq.], the Age Discrimination Act of 1975 [42 U.S.C.A. §6101 et seq.], title VI of the Civil Rights Act of 1964 [42 U.S.C.A. §2000d et seq.], or the provisions of any other Federal statute prohibiting discrimination by recipients of Federal financial assistance.

(2) In a suit against a State for a violation of a statute referred to in paragraph (1), remedies (including remedies both at law and in equity) are available for such a violation to the same extent as such remedies are available for such a violation in the suit against any public or private entity other than a State.

The Eleventh Amendment is no bar to actions brought by private plaintiffs under Title IX to remedy discrimination on the basis of sex. It is the position of the Department of Justice that Section 2000d-7 is an unambiguous abrogation which gives States express notice that a condition for receiving federal funds is the requirement that they consent to suit in federal court for alleged violations of Title IX and the other statutes enumerated. 42 U.S.C. 2000d-7 contains an express statutory abrogation of Eleventh Amendment immunity for Title IX suits. This abrogation is a valid exercise of Congress" power under the Spending Clause to impose unambiguous conditions on States receiving federal funds. By enacting Section 2000d-7, Congress put States on notice that accepting federal funds waived their Eleventh Amendment immunity to discrimination suits under Title IX. In addition, Section 2000d-7 is a valid exercise of Congress" power under Section 5 of the Fourteenth Amendment, which authorizes Congress to enact "appropriate legislation" to "enforce" the Equal Protection Clause. Under either power, the abrogation for Title IX suits is constitutional.