11^th Circuit Speaks: No Implied Right of Action for Employees Under Title IX for Sex Discrimination

The 11^th Circuit has spoken on a topic with divergent views among the circuits – finding that Title IX does not provide an implied right of action for sex discrimination. In so doing, it affirmed summary judgment for the university in a lawsuit brought by its former women’s basketball coach.

Background

The opinion actually consolidated two separate appeals: one for Thomas Crowther, an art instructor at Augusta University, and another for MaChelle Joseph, who was the head women’s basketball coach at Georgia Tech. Crowther was found to have violated the university’s sexual harassment policy and ultimately his contract was not renewed. He sued the state system for sex discrimination and retaliation under Title IX and other federal provisions. 

Joseph was the head women’s basketball coach at Georgia Tech from 2003 until her termination in 2019. Over the course of many years Joseph had raised concerns with Georgia Tech’s Title IX coordinator about the disparity in budget and resources between the men’s and women’s basketball teams. Following a litany of other events relating to Joseph’s alleged mistreatment of players and staff, she eventually filed a formal internal complaint of discrimination and retaliation. Shortly thereafter the university began an internal investigation on the multiple complaints received about Joseph. That investigation yielded a report that found Joseph to be abusive. After allowing Joseph to respond to the report, the athletic director fired Joseph in March 2019. 

Shortly thereafter she filed a charge of discrimination with the Equal Employment Opportunity Commission. After receiving a right to sue letter, she sued Georgia Tech and several individuals for sex discrimination under Title IX and Title VII, and retaliation under those two statutes and the Georgia Whistleblower Act. After the defendants filed a motion to dismiss, the district court dismissed the claim of employment discrimination and either dismissed or narrowed the other claims. 

Title IX Holding

The opinion tackled several subjects, but most significantly, the court concluded that there is no implied private right of action for sex discrimination for employees under Title IX. 

The court began the analysis by highlighting that “private rights of action to enforce federal law must be created by Congress” and that without clear indication of congressional intent to create a cause of action, courts may not create one no matter how desirable it might be. The court frequently cited the “landmark decision” in Alexander v. Sandoval, 532 U.S. 25 (2001), that courts must exercise caution in implying rights of action and stating that “[w]here implied rights of action exist, we must honor them, but we cannot expand their scope” without assurance that Congress had such an intent.

The court then described that Title IX was enacted under the Spending Clause of the Constitution and provided an express remedial scheme for withdrawing federal funding under 20 U.S.C. § 1682. With most Spending Clause legislation the remedy is the federal government terminating funding rather than allowing for a private cause of action. Further, the opinion chronicled that unlike ordinary legislation that imposes the congressional policy on the regulated parties “involuntarily,” Spending Clause legislation operates based on the consent principle of “in return for federal funds, the recipients agree to comply with federal imposed conditions” citing to Cummings v. Premier Rehab Keller, PLLC, 142 S. Ct. 1562, 1570 (2022). But such a “contract” must be clear to be binding, and “if an implied right of action would impose unclear conditions or remedies for Spending Clause legislation, we should not recognize that right.” 

The opinion recognizes that it is well established that there is an implied right of action for students who complain of sex discrimination by schools that receive federal funding, but that right “has never extended the implied private right of action under Title IX to claims of sex discrimination for employees of educational institutions.” 

It then examined the history of Title IX that was created in 1972 as part of a series of amendments to the Civil Rights Act and the Equal Employment Opportunity Act of 1972, which extended Title VII’s employment discrimination protections to federal employees and educational institutions. The fact that those two amendments were passed only three months apart evidenced a congressional intent for a comprehensive antidiscrimination remedial scheme where Title VII and Title IX “work in tandem: ‘whereas Title VII aims centrally to compensate victims of discrimination, Title IX focuses more on protecting individuals from discriminatory practices carried out by recipients of federal funds’” citing to Gebser v. Lago Vista Indep. Sch. Dist., 524 U.S. 274, 287 (1998). But the two statutes accomplished their goals through different remedies, and the court found it “unlikely that Congress intended Title VII’s express private right of action and Title IX’s implied right of action to provide overlapping remedies” and that such a position “becomes even weaker when we remember that Congress extended Title VII’s remedies to employees of educational institutions only three months before enacting Title IX.” 

All that led the court to the ultimate conclusion “that Title IX does not create an implied right of action for sex discrimination in employment.” 

Other Circuits

The opinion noted that sister circuit courts “are split” on the question of whether Title VII precludes claims for employment discrimination under Title IX. With the Fifth and Seventh circuits holding that there was such preclusion to yield no private right of action under Title IX and the First, Third, Fourth, and Tenth circuits going the other way holding that there was no such preclusion, a Title IX based discrimination claim was viable for employees.

The opinion noted that “our sister circuits that have allowed claims of sex discrimination in employment under Title IX to proceed have failed to grapple with the inquiry required by Alexander v. Sandoval that implied rights of action must be limited.” Instead, per the opinion, courts that reached a different conclusion have relied on other principles because Title IX prohibits employment discrimination where there was latitude to allow for a private right of action. The court did not find that reasoning, or the cases relied upon, to be compelling. 

Takeaways

This is a significant circuit-level opinion relating to employees of educational institutions. Different circuits have had different views of the implied right of action for sex discrimination cases under Title IX, but the 11^th Circuit provides the most recent update with a thorough textual and historical review of the interplay between Title IX and Title VII. The divergent circuit opinions could lead to the Supreme Court weighing in at some point.