*1 CANNON v. UNIVERSITY OF CHICAGO et al. January 9, May 14, 1979 Argued No. 77-926. 1979 Decided *2 Court, in which Brennan, opinion J., SteveNS, delivered filed J., JJ., joined. Rehnquist, Rehnquist, Stewart, Marshall, Burger, joined, post, p. 717. J., Stewart, concurring opinion, in which dissenting opinion, in J., judgment. filed White, J., concurred C. dissenting J., filed a J., post, p. Powell, joined, which Blackmun, post, p. 730. opinion, filed briefs argued the cause M. Cannon
John petitioner. *3 for the federal cause argued the General McCree
Solicitor Attorney Assistant briefs were him the With respondents. Dun- Wallace, Jessica General Deputy Solicitor Days, General R. Eisenstein. Miriam Silver, and say Univer respondents the cause for argued Bernstein Stuart Susan brief were him on the With Chicago et al. sity of H. Morsch* and Sher Thomas * Camp- Dufj Nancy by filed urging reversal were curiae Briefs of amici Pro- for Organizations Margaret the Federation A. for bell and Kohn A. Kelly, Jr., C. Charles Hills, al.; by A. William Carla et
fessional Women Murphy, Norman A. and Redlich, Robert Bane, Barr, Thomas D. Norman by Law; Rights Under Lawyers’ for Civil Committee for the J. Chachkin Inc., et Handicapped, Law and National Center for Kent Hull for the Jeffrey Nickles, Forster, Arnold Westwood, J. by C. Peter al.; Howard and Weisz, Roger S. Roos, Richard A. Rabinove, Peter D. Sinensky, Samuel P. Brown, Hermann, Robert and B. Taylor, Ronald Kuhn, L. William League et al. Urban Jones for National Nathaniel by Christian were filed Laura urging affirmance curiae Briefs of amici Anthony Keyes, Jr., the American Council on Educa- Joseph for Ford and Douglas S. Cahoon, Wright, A. William al.; by A. et Susan tion by Advisory Council; John W. Equal Employment McDowell for University. for Yale E. and Noel Barnett Hanf Mr. Justice Stevens delivered opinion Court. Petitioner’s complaints allege applications that her admission to medical school were denied respondents because she a woman.1 Accepting the truth of allega those tions for purpose of its decision, the Appeals Court of held petitioner has no right of action respondents that may be asserted in a federal court. 559 2d 1063. F. We granted certiorari to review that holding. 438 S. 914. U.
Only two facts alleged in the complaints are relevant to our decision. petitioner First, from participation excluded the respondents’ medical education programs of her because sex. Second, these education programs were receiving federal financial assistance at the time her exclusion. These facts, arguendo admitted by respondents’ motion to dismiss the complaints, establish a violation of 901 (a) IX the Education Amendments of (hereinafter Title IX).2 petitioner’s Each of complaints two names as defendant a university University of Chicago and University —the Northwestern —and various officials of the operated medical school university. addition, both complaints name the Secretary, and Region V Director of the Office for Rights, Civil Department Health, Education, and Although Welfare. all of these prevailed defendants below, and are re spondents here, the federal defendants have taken a position basically accords position with the by petitioner. advanced See Brief for Federal Respondents. Unless otherwise clear context, all references respond ents in opinion will refer to petitioner’s defendants named *4 complaints. 2Petitioner’s complaints allege violations of various federal statutes including Title IX. Although the District Court and Appeals Court of ruled adversely on all of theories, these petitioner petition confined her for a writ of certiorari to the question. Title IX Pet. for Cert. 3. On that question, the District Court and Court Appeals of favorably ruled on respondents’ motion to dismiss the complaints for failure to state a cause of action. See App. 22. Although respondents sought summary judg ment simultaneously with their motion to dismiss, and support submitted ing affidavits, the courts below did purport not to rule on summary judgment or to make findings. factual Accordingly, of all alleged the facts provides: part, in relevant
That section, of basis the on shall, United States in the person “No the be denied in, participation from be excluded sex, of review. purposes true for taken as complaints must petitioner’s in both qualified to attend complaints, petitioner According to her (i. grade-point e., objective both based schools respondent medical the schools fact, both subjective criteria. scores) and average test and the fact despite applied she to which classes to the persons some admitted she than qualifications impressive objective had less persons those that 12-13. 6-7, Id., at did. both have 15-16, and aid, id., at schools receive medical Both years old than 30 are more applicants who admitting policies they do if at least applied), she time at years old was 39 (petitioner School Medical at 7. Northwestern Id., degrees. advanced have policies, These Id., 7 n. 3. at 35. applicants over disqualifies absolutely at an interview asked to being from petitioner prevented alleged, it convince opportunity even she was denied schools, so medical in her admission warranted qualifications personal her schools Id., hers. than were qualifications better objective persons whose place higher interrupted incidence of 11-12. Because 10, 4, n. at claimed, men, is further among than among women higher education women from exclude operate advanced-degree criteria age and success predictors of valid are not criteria though the even consideration such, the exist- As 7-11. Id., at practice. medical or in medical schools of the a violation or evidences out makes either of the criteria ence on the basis discrimination IX to avoid duty school’s medical accepted schools claimed also Petitioner Id., at 13. of sex. general percentage their than women percentage smaller far Id., degrees. bachelor’s persons with the class and in population by the submitted referring statistics 1067, 2d F. cf. But summary judgment its accompanying affidavit Chicago in its University of classes from admitted of women percentage indicating that the motion of women percentage virtually to the identical 18.3%, was 1972 to may discriminatory rule impact of a dampening course, the Of applicants. applicants. relating to actual figures relevance undermine 321, 330. Bawlinson, Dothard sought schools, petitioner reconsideration by both rejection Upon her communications telephonic way of written decisions a com- avail, filed no she avenues Finding these officials. admissions alia, alleging, inter April of HEW office the local plaint with *5 benefits of, or be subjected to discrimination any education program or activity receiving Federal financial assistance . violations of Title App. IX. 16. Three months later, having received only an acknowledgment of receipt of her letter HEW, from petitioner filed suit in the District Court for the Northern District of Illinois defendants. After she amended her complaints to include the federal defendants requested and injunctive relief ordering them to com- plete their investigation, she was informed that HEW would begin not investigation its of her complaint early until 2d, F. 1068, 3; n. App. 49. In June 1976, HEW informed petitioner that stages local of its investigation had completed been but that its national headquarters planned to conduct a further “in-depth study of the issues raised” because those issues were “of first impression and national scope.” App. to Pet. for Cert. A-35. As far as the record indicates, HEW has announced no further action in this case. See 559 2d, F. at 1077. 3In relevant part, 901, 86 373, Stat. as amended, as set forth in 20 C. provides:
“(a) ... No person in the United States shall, on the basis of sex, be excluded from participation in, be denied the of, benefits or subjected discrimination under any program education activity receiving Federal financial assistance, except that:
“(1) ... in regard to admissions to educational institutions, this section shall apply only to institutions of vocational education, professional educa- tion, graduate higher education, and public institutions of under- graduate higher education;
“(2) ... in regard to admissions to educational institutions, this section shall apply (A) year for one from June 1972,nor years for six after June 1972, in the case of an educational institution which has begun process of changing being from an institution which only admits students of one sex being an institution which admits students of both sexes, only but if it is carrying out plan a for such change which approved by the Commissioner of (B) Education or years for seven from the date an educational institution begins process of changing from being an institution which only admits students of only one being sex to an institution which admits students of both sexes, but only if it is carrying out plan for such a change which is approved by the Commissioner of Education, whichever is later; “(3) . .. this section shall not apply to an educational institution which
68B *6 private a authorize expressly however, not, does statute §of 901. a by violation injured person action of right private no that concluded because reason, that For the granted District Court the inferred, be remedy should 1257, Supp. F. dismiss. 406 motions to respondents’ not con- did statute the agreed that Appeals of The Court of Title 902§ Noting remedy. that implied tain of federal termination for the procedure IX establishes violating 901, for institutions support financial remedy to that intended Congress concluded Appeals of subsection of this application organization if the religious by a controlled organization; of religious such tenets with be consistent not would whose institution educational apply to an not “(4) shall . . this section . of military services for the training of individuals purpose is primary marine; [and] the merchant States, or the United any apply to shall this section to admissions regard “(5) in ... institution is an which higher education undergraduate of public institution policy had a has continually establishment its from traditionally and sex. of one only students admitting of be shall (a) this section of in subsection Nothing contained “(b) .. . or grant preferential institution to any educational require interpreted to imbalance anof on account one sex members of disparate treatment persons of percentage or total number respect may exist with which federally any of benefits receiving the in or participating that sex or number total comparison with activity, in or program
supported section, or State, community, any sex of that persons percentage construed shall not Provided, this subsection That area: other chapter hearing proceeding any or consideration prevent exists imbalance such an tending to show that evidence statistical any of, such the benefits receipt of in, or participation to the respect sex. of one activity by members or program means institution educational chapter an of this purposes For “(c) . . . any secondary school, or elementary, or preschool, any public or except that education, higher or vocational, professional, institution school, one more than composed institution an educational case of units, such administratively separate are which department college, or department.” college,or school, each such means term be the exclusive means of enforcement.4 recognized It the statute was patterned after VI of the Civil Rights Section Stat. as set forth in 20 U. provides: C. department “Each Federal agency empowered which is to extend Federal financial any assistance to program education or activity, way grant, loan, or contract other than a contract of guaranty, insurance or is authorized and directed provisions effectuate the of section 1681 of this title with respect to such program activity by issuing rules, regula- *7 tions, or orders general of applicability which shall be consistent with achievement of objectives the of the statute authorizing the financial assistance in connection with which the action is taken. rule, No such regulation, or order shall become effective unless and until approved by the President. Compliance any requirement with adopted pursuant to this may section (1) be by effected the termination of or grant refusal to or to continue assistance under such program activity or any recipient to as to whom there has been an express finding on record, after oppor- tunity hearing, for of a failure comply to with such requirement, but such termination or refusal shall be limited to particular political entity, or part thereof, or other recipient as to whom such a finding has made, been and shall be limited in its effect particular to the program, part or thereof, in which such noncompliance has been so found, (2) by or any other means authorized by law: Provided, however, That no such action shall be taken until department agency or concerned has advised the appro- priate person persons or of the failure comply to requirement with the and has determined that compliance cannot be secured voluntary means. In the any of case action terminating, or refusing grant to or continue, assistance because of failure to comply requirement with a imposed pursuant section, to this the head of the department Federal or agency shall file with the committees of the House and Senate having legislative jurisdiction over the program activity or involved a full written report of the circumstances and the grounds for such action. No such action shall become effective thirty days until elapsed have after filing report.” of such Section of Title IX, 86 Stat. as set forth in 20 U. S. C. 1683, § provides judicial review of actions taken under 902: “Any department agency or action pursuant taken to section 1682 of this subject title shall be to judicial such may review as provided otherwise be by law for similar action taken such department or agency on other grounds. In the of action, case not otherwise subject judicial review, terminating or refusing grant or to continue financial upon assistance petitioner’s rejected VI),5 but Title (hereinafter Act of of cause implied an included VI Title argument 1071-1075. F. 2d, action. Con- announced, decision Appeals’
After ofAct Awards Attorney’s Fees Rights the Civil gress enacted pre- fees to award authorizes 2641, which Stat. The IX.6 to enforce in actions parties vailing private pursuant imposed requirement any comply with finding of failure any or (including State aggrieved any person title, 1682 of section judicial may either) obtain agency of any thereof political subdivision such 5, and chapter 7 title action review such accordance discretion agency to unreviewable deemed committed not be shall action that title.” 701 of meaning of section within 1964, 78 Stat. Rights Act Civil of Title VI Section provides: §2000d, 42 U. C.S. color, or race, shall, ground of States person in the United
"No benefits in, be denied participation from origin, be excluded national activity or any program discrimination subjected to of, assistance.” financial receiving Federal 1976 amended Act of Attorney’s Fees Awards Rights Civil provides: part, section, in relevant That C. *8 of sections provision to enforce proceeding any action or . In “. . Education the title, IX title [of of this 1983, 1985, 1982, 1981, by on behalf or proceedings, any action or 1972], in civil or of Amendments of, a charging a violation enforce, America, of United States of the Code, of the or title VI Internal Revenue United States provision may discretion, allow court, in its 1964, . of . . Rights Act Civil attorney’s States, a reasonable than United party, other prevailing part the costs.” of fee as merely 1988 was that the amendment argued § Respondents have brought prevailing party in actions attorney’s to the fees to allow intended 4, quoted 1683, in n. IX, 20 C. provision in Title express § judicial review Gov- to obtain alleged discriminators authorizing supra, 2d, 1078. The F. at funds. See off federal decisions cut ernment argument. The amended, belies history 1988, as legislative § fees behalf alia, awards intended, inter to allow clearly provision was brought successfully suit who have discrimination “private” victims statutes: by the enumerated authorized court where heavily upon depend to in rights 1988] laws § these [referred “All of civil court therefore granted a petition for rehearing to consider whether, light of that statute, its original interpretation of Title IX had been correct. After receiving additional briefs, the court concluded that the 1976 Act was not intended to create a remedy did not previously exist.7 The court private enforcement, and fee awards proved have remedy essential if private citizens are to have a meaningful opportunity to vindicate the important Congressional policies which these laws contain.” S. Rep. No. 94r-1011,p. (1976) (emphasis added). Furthermore, attorney’s fee passed amendment in 1976 designed expand the availability of 718 of § the Education 1972, Amendments of 20 U. S. C. 1617, quoted § n. infra, which pro- unequivocally vides fees to litigants “other than the United States” judicial who secure relief certain defendants for discrimination in violation of Title VI. Hence, although the language in §§ 1988 is parallel, it appears that both authorize attorney’s fees to certain plaintiffs where the specified statute itself authorizes the sought relief by that plaintiff and the plaintiff proves his entitlement to such relief. 7We find nothing objectionable in this conclusion, far goes. as as it
legislative history quoted in opinion of the Court Appeals makes clear that the supporters of the legislation did not intend it to amend IX to include an express cause of action where none existed before. Instead, they clearly only meant to provide attorney’s fees in the event that statute always had existed implicitly created a cause of action. 2d, 559 F. at 1079-1080. On the other hand, the language added to 1976 amend- ment, and legislative history surrounding it, do indicate that many “members of Congress may have assumed suits were author- ized under” Title IX, 2d, 559 F. and, more importantly, that many Members felt that private enforcement of Title IX was entirely consistent with, and even necessary to, the enforcement of Title IX and the other statutes listed in In addition to reflecting this sentiment in the Report Senate on the 1976 amendment, see n. supra, legis- numerous lators said as much on the floor of the two Houses: “It Congress obligation [’] to enforce the 14th amendment eliminating entirely such forms of discrimination, and that why both title VI of the *9 Rights Civil Act of 1964 and title IX of the Education Amendments of 1972 have been included [in amendment to § As 1988]. basic provi- sions of the rights civil enforcement scheme that Congress has created, essential private enforcement be possible made by authorizing Department Education, of Health, that the
also noted private position of action cause had taken the Welfare disagreed implied,8 court IX but the should be Cong. Rec. 31472 attorneys’ the law.” in this essential area of fees (remarks Kennedy). (1976) of Sen. Allen); id., (Sen. at (Sen. Scott); id., id., also at 31471 at 31482 See (Sen. Tunney); (Sen. id., (Sen. id., at 33314 Hathaway); at (Rep. Drinan); Kas-
Abourezk); id., (Rep. id., at 35125-35126 at 35122 Seiberling). (Rep. tenmeier); id., (Rep. Holtzman); id., at 35127 weight contemporary Although we cannot accord these remarks the legislative history, ignored if these authoritative we would be remiss we place scope IX and its expressions concerning purpose of Title Congresses rights scheme” that successive within “the civil enforcement years. past have created over the 1974, position that an September 17, At has taken the least since HEW implied IX in certain circumstances. cause of action does exist under Title Dr. Counsel Theodore A. Miles to Letter from Assistant General HEW A-36 (Sept. 17, 1974), reproduced App. to Pet. for Cert. Bernice Sandler Amicus Curiae in to A-38. also United Memorandum for States Nichols, 1973, p. 5, the Justice 72-6520, Lau v. O. T. No. 13 n. in which Department position implied that an cause of on behalf of HEW took VI; 31, represented action exists under Title n. It that “com infra. lapses regional munication between national and offices” accounted HEW taking contrary position early stages throughout HEW’s of this petitioner rehearing suit and until asked for before the Seventh Circuit. Respondents Brief for Federal 6 n. 9. position private
HEW’s on the interaction between the cause of action recognizes remedy provided by that it and the C. administrative 20 U. S. regulations recently. 1682 and HEW was clear until less the' Assistant above, question General Counsel’s 1974 letter mentioned exhaustion of administrative 1974, remedies was raised but not answered. Since HEW apparently position has required never taken the that exhaustion is every Terry case. In submissions made to the v. Methodist Hospital, (ND however, Ind.), Department Civ. No. 76-373 appar- ently always position took the opportunity (i. should have the e., that it “primary jurisdiction”) expertise through to exercise its process the 1682 judicial in advance consideration of a suit. Sup- Statement in port of Reconsideration, HEW’s Motion for pp. Oct. It apparently contemplated that the administrative results would be due subsequent some amount deference in litigation. Later, HEW *10 with agency’s that interpretation of the Act. In sum, adhered to original its view, 2d, F. at 1077-1080.
The Court of Appeals quite properly devoted careful atten-
tion to
question
statutory
of
construction.
ourAs
recent
particularly
Ash,
Cort v.
demonstrate,
cases—
66—
the fact that a federal statute
been
has
violated and some
person harmed
does
automatically give rise
to a
cause of action in
of
favor
person.
that
Instead, before con-
cluding that Congress intended to make a remedy available
special
class of litigants, a court
carefully
must
analyze
the four factors that Cort identifies as indicative
such an
intent.9 Our
review
those
persuades
factors
us, however,
advanced the position
lay
that
the choice
with
alleged
victim of dis-
crimination, but
person
that
if that
initiated
proceedings
administrative
prior
(as petitioner
to suit
here),
only
did
judicial
remedy would be
through judicial
agency
review of the
action. See
Wilmington
NAACP v.
Center,
Medical
Supp.
453 F.
(Del. 1978).
Now, however, HEW,
conjunction
Department
Justice,
rejected
any
has
strict-
exhaustion, primary-jurisdiction, or
position
election-of-remedies
in favor
of a more
approach.
flexible
In its view, a district court might choose to
defer
the decision of the relevant
agency,
administrative
if,
here,
unlike
one has been reached in
trial,
advance of
may
and it
stay
wish to
its hand
upon request of
if an
HEW
investigation
administrative
or informal
negotiations
progress
are in
and might
hampered by
judicial action.
See Brief for Federal Respondents 58-60, n. 36.
9“In determining
whether a
remedy is implicit in a statute not
expressly providing one, several factors are
First,
relevant.
plaintiff
is the
‘one of the class for
especial
whose
benefit the statute
enacted,
Texas
&
R.
Rigsby,
Co. v.
(1916)
Pacific
(emphasis supplied)—
is,
does the statute create
right
a federal
plaintiff?
favor of the
Second,
any
is there
legislative
indication of
intent, explicit
implicit,
either to create
remedy
such a
deny
or to
See,
one?
g.,
e. National Rail
road Passenger Corp. v. National Assn. Railroad Passengers, 414 U. S.
453, 458,
(1974)
(Amtrak). Third, is it consistent
underlying
with the
purposes of
legislative
scheme
imply
remedy
such a
plaintiff?
for the
See, e. g., Amtrak, supra; Securities Investor
Corp.
Protection
Barbour,
I the is whether under Cort question First, threshold the of which class special for benefit a the was enacted statute by look answered is question That a member. plaintiff the statutory the Thus, itself. statute language the ing to the in carrier” common any such “any employee of to reference cars equip their railroads requiring legislation the 1893 531, 532, 27 Stat. handholds,” or see irons “grab with secure a private earliest “inference the Court’s “irresistible” made employee railway aof in favor that case right of action” —in & Texas way. gave iron grab a injured who when Pacific was 40.10 33, Rigsby, U. S. v. R. Co. inap- it would States, the so basically concern of in an area the See law? solely based cause of action propriate to infer a Co. v. I. Case cf. J. (1963); 647, 652 Wheeler, S. Wheeldin v. Federal Nar- Six Unknown (1964); v. Bivens
Borah, 426, 434 (Harlan, J., con- id., (1971); at 388, Agents, 394-395 cotics 403 U. S. S., curring judgment).” U. stated: the that case Court wrongful act, and where statute a of the disregard
“A of the command the especial benefit for class whose one of the damage it results party in damages from the the right to recover enacted, the statute was expressed in law common according to a doctrine implied, default is ‘So, every words: in these (F), upon Statute Dig., tit. Action Com. thing the of a for benefit a enacts, prohibits case, where a statute thing the statute for remedy upon same the person, shall have he to him wrong done recompense of advantage, or for his enacted 27.) 26, Anon., 6 Mod. This (Per Holt, J., C. said law.’ contrary jus 3 Black. ibi remedium. See maxim, Ubi application of is but an Q. 411; B. 23 L. J. Steel, Bl. 3 El. & 51, 123; Couch v. Com. S.,U. at 39-40. 125.” 241
Similarly, statutory language describing special class to be benefited Voting § 5 Rights Act persuaded parties within that class were implicitly declaratory authorized seek a judgment against a covered Allen State. State Board Elections, 393 U. dispositive language 554—555.12 The in that statute —“no person shall be denied right to vote for failure to comply with new state by, [a covered enactment but not approved under, remarkably 5]” similar to —is language used Congress in Title IX. supra. 3,n.
The language in these statutes —which expressly identifies Congress class intended to sharply benefit —contrasts statutory language customarily found in statutes, criminal such as that construed in Cort, supra, and other laws enacted *12 protection for the of the general public.13 There would be far 11 42U. S. C. 1973c. § 12The explanation Court’s entire inferring private remedy a was as follows: Voting
“The
Rights Act does
explicitly grant
not
deny
or
parties
authorization to
declaratory
seek a
judgment that a State has failed to
comply with the provisions of
However,
provide
the Act.
5 does
§
person
'no
shall be
right
denied the
to
comply
vote for failure to
with [a
new state
by,
enactment
approved under,
covered
but
Analysis
5].’
§
of
language
light
major
of
purpose
the
of the Act indicates that
appellants may
declaratory
a
judgment
seek
that a new state enactment
governed
by
S.,
5.” 393
(footnotes
U.
omitted).
554-555
§
13Not surprisingly,
right-
duty-creating
language of the statute
generally
has
been the most accurate
propriety
implica
indicator of the
of
tion of a cause of
exception
action. With the
of
case,
one
in which the
relevant statute
special policy
reflected
a
judicial interference, this
Court has
imply
never refused to
a cause of action where
language
explicitly
the statute
right
conferred a
directly
persons
on a class of
plaintiff
included the
in the
Hunting
ease.
Sullivan
Park,
See
v. Little
229,
(42
396 U. S.
238
U. S. C. 1982: “All citizens of the United States
§
shall have the
right
same
enjoyed by
...
white citizens there
.”);
of . .
Allen v. State Board
Elections,
(42
691 individual in favor remedy infer a reason less un- IX with an drafting instead Congress, if persons simply had written class, benefited on the focus mistakable Enginemen, U. S. 323 & Firemen v. Locomotive supra); Sullivan, Tunstall shall have “Employees Railway Act: Labor 2 210, (§ 213 Fourth .”) ; . collectively through representatives . bargain organize and right to Virginian (same); 192, 199 Co., 323 U. S. R. & v. Louisville N. Steele Railway 2 of the 515, (§ Ninth 545 Railway Employees, U. S. 300 Co. v. R. representative so certified” treat with shall “the carrier Labor Act: Clerks, Railway Co. v. N. O. R. added)); Texas & (emphasis . . . “Representatives Railway Act: Labor of the (§ Third 567-570 interference, parties . . without . by respective designated shall added)) ; (emphasis party . . .” either influence, or coercion exercised “any (27 532: Stat. Rigsby, S. R. v. U. Co. Texas & Pacific im carrier”). Analogously, Court has employee any common such cases where the United States favor of plied of action in causes Wyandotte large. public at duty in of the a favor creates statute (33 U. C. 191, 200-202 S. States, U. Transportation Co. v. S. United waterways] ”); United navigable obstruct “It not be lawful 409: shall [to (same). Republic Corp., Steel 362 U. S. v. States pattern Clara Pueblo is Santa only from this case deviates Rights I Indian Civil involved Title Martinez, U. which deny to (8): tribe . . . shall “No Indian 1968, U. S. C. Act of equal protection of its laws.” jurisdiction any its person within imply in a attempt a of action Martinez, cause however, involved protected tribe, unique e., against an Indian virtually situation —i. by a autonomy self-government, as well as strong presumption of fairly deal duty part of the Federal special on the Government severely, history to limit of an intent by legislative indicative openly, and *13 58-59, 67-70, 63-64, S., 55, affairs. 436 U. at judicial in tribal interference brought into factor was situation, the fourth Cort In this and n. 30. strong presumption that the play. determined special The Martinez Court they might with where interfere of federal remedies against implication Cort, 78, S., 422 U. at law,” “traditionally relegated to state matters remedies inter- would where federal equally applicable in circumstances semisovereign traditionally relegated to the control of matters fere tribes. Indian propriety “recognized inferring of a Martinez, however, Even Congress has rights, of civil even when for the enforcement of action cause S., 61; 436 at v. terms.” U. see Sullivan spoken purely declarative 692 discriminatory recipients
as a ban on conduct of federal prohibition against public funds or as a the disbursement of Hunting Park, supra, 238; Little at Allen v. Elections, State Board of supra; Mayer supra, v. H. Co., Jones at 414 n. principle, This Alfred directly applicable which present context, IX is but a mani- pattern festation of the noted above because a statute declarative of a civil right will almost to be have stated in terms of the benefited class. Put differently, somewhat right because the free of be discrimination is a "personal” one, see, g., e. States, Teamsters v. United 324, 431 U. S. 361-372; Transportation Franks v. Co., Bowman 424 U. 747, 772, S. conferring right statute such a phrased will almost have be in terms of persons benefited. Conversely, the has especially Court been imply reluctant to causes of actions under statutes that create part persons duties on the of for the public benefit of the large. Piper See Industries, v. 430 Chris-Craft (“unlawful” conduct); U. S. Ash, supra ("unlawful” Cort v. conduct); Securities Investor Corp. Protection Barbour, v. (duty U. of S. “discharge SIPC to obligations”); its Passenger Corp. National Railroad v. Assn. National Railroad Passengers, 414 (forbidding U. S. 463 “action, of practice, policy inconsistent” with the Act); Amtrak Wheeldin v. Wheeler, 373 U. S. (setting procedure procuring congressional sub poena) ; T. I. M. E. Inc. v. States, United (“duty every of common carrier ... just establish . . . .”); reasonable rates . . Montana-Dakota Utilities Co. v. Northwestern Public Co., Service (similar U. S. duty gas pipeline companies). The Court has de pattern viated from this on occasion. See J. I. Case Co. Borak, v. U. S. (implying a cause of action under a provision securities describing “unlawful” conduct); Superintendent Insurance v. Bankers Cas.& Life Co., 404 U. S. 13 n. 9 (implying a cause of action under Securities Exchange Commission 10b-5, Rule which describes certain manip unlawful ulative conduct area); the securities Machinists v. Central Airlines, 372 U. (implied S. 682 cause of action under Railway section Act Labor creating “duty” part on the of common carriers to establish boards of adjustment). At least the latter two cases can explained historically, Superintendent however. Insurance, the Court explicitly acquiesced 25-year-old in the acceptance by the lower federal courts a Rule 10b-5 cause of action. also Ernst & Ernst v. Hochfelder, 425 196; Chip Stamps Blue Drug Manor Stores, 421 S.U. 730. In Machinists, the explicitly followed lead of various earlier cases in which it implied had causes of actions under various sections Railway Labor Act, albeit where the statutory provisions more explicitly *14 discriminatory engaged in institutions educational funds practices.14 iden- factors the four of first
Unquestionably, the therefore, of cause implication of a the favors in Cort tified supra; Steele, supra; Tunstall, persons. benefited of a class identified supra. Co., O. B. N. Co., supra; Texas & Virginian B. passed over fact, form, Congress present in in its adopting Title IX In amendment as an by McGovern offered Senator proposal, alternative differently quite phrased was of Act —as Higher Education the Secretary of HEW: to the simple directive Against Discrimination Sex “PROHIBITION guar- any grant, loan make Secretary shall not (a) The “Sec. 1206. any Secretary enter into subsidy payment, nor shall the antee, or interest any postsecond- education, other higher or of any institution with contract such representing agencies or training center, center, institution, ary arrangement for contract, or other application, unless institutions financial assist- or other subsidy payment, interest guarantee, loan grant, any Secretary that such satisfactory to the assurances contains ance in of basis sex on the discriminate will not center, institution, agency or application, to which any program individuals of admission Cong. Rec. applicable.” arrangement contract, or other originally interesting to note that connection, also IX which Title after Rights Act of Civil VI of the introduced a directive phrased as 16, infra, was also see n. patterned, explicitly public funds: disbursement engaged in the agencies ASSISTED FEDERALLY IN VI—NONDISCRIMINATION “TITLE PROGRAMS any contrary in law to the any provision Notwithstanding “Sec. financial authorizing direct or indirect providing or States United way activity any or program with for or in connection assistance shall otherwise, such no law or guaranty, loan, insurance, contract, grant, be furnished shall assistance financial requiring that such interpreted as be benefiting in or participating individuals under which circumstances ground against on activity are discriminated or program from or participation denied origin or are national religion, or race, color, origin. national color, religion, race, ground therein benefits activity shall any program or such made connection contracts All purpose may prescribe for as the President conditions such contain any employment no discrimination assuring shall there *15 action. Title IX explicitly confers a benefit on persons dis- criminated. against on the basis of sex, petitioner clearly a member of that class for whose special benefit the statute was enacted.
Second, the Gort analysis requires consideration of legisla history. tive We must recognize, however, that legislative history of a statute that not does expressly create or deny a private remedy will typically be equally silent or ambiguous on the question. Therefore, situations such present as the one “in which it is clear that federal law has granted a class of persons certain rights, it is not necessary to show an inten tion to a private create cause of action, although an explicit purpose to deny such cause of action would be controlling.” Gort, 422 U. S., at (emphasis in original).15 But not typical case. Far from evidencing any purpose to deny a private cause of action, history IX Title rather plainly indicates that Congress intended to create such a remedy. IX
Title patterned after Title VI of the Civil Rights Act of 1964.16 Except for the substitution of the word “sex” contractor or subcontractor on ground race, color, religion, or origin.” national 1731, S. Cong., 88th 1st Sess. After Senators Keating and objections Ribicoff raised to the bill on the ground that it did expressly remedy authorize person for a against whom discrimination had been practiced, Department Justice submitted a revised bill which contained the language now found 601. See Hearings before the Senate Committee on Judiciary S. 1731 and 88th Cong., Sess., 1st 334r-335, 349-352 (1963); infra, at 713-716. 15 See also Santa Clara Pueblo v. Martinez, S.,U. at 79 (White, J., dissenting). 16“This is identical language, specifically taken from title VI of the 1964 Act_” Civil Rights 117 Cong. Rec. (1971) (Sen. Bayh —Senate sponsor). Accord, id,., (“We only are adding the 3-letter word 'sex' to existing law”) (Sen. Bayh); id., at 39256 (Rep. Green —House sponsor); Cong. 1-18 Rec. 5803, 5807, 18437 (1972) (Sen. Bayh). genesis of Title IX also bears out its kinship with Title VI. in Title IX to replace the words “race, color, or national origin” VI, the two statutes use identical language to describe the benefited class.17 Both provide statutes 1970, Representative the summer of Edith Oregon, Green who later sponsored Title IX on the floor of the House during the debates in 1971 chaired a hearings set of on “Discrimination Against Women.” Hearings Special before the Subcommittee on Education of the House Committee on Education and Labor on 805 of H. R. 91st Cong., *16 (1970). 2d Sess. Under consideration pending bill, was a of a section H. R. 16098,that simply would have added the word “sex” the list of discrimina- prohibited by tions 601 of Title VI. supra, See Hearings, During § 1. at the course of the hearings, repeatedly which were upon relied in both during subsequent Houses IX, debates on Title it became clear that educational primary institutions were complaints concerning focus sex See, g., discrimination. id., e. 5, 237, at In order conform to focus, and respond in order to to criticism federally that certain programs funded properly were operating a single-sex (for basis example, undergraduate colleges and homes for children), disturbed wit- hearings, nesses at representatives including Department Justice and of the United States Commission on Rights, proposed Civil that a special provision up be drawn parallel to, was but somewhat more than, limited Id., Title VI. at 664-666, 677-678, 690-691. Although H. R. never through made it House, its sex provision discrimination was it, lifted from along modified the lines suggested in the 1970 hearings, and included in the House Resolution that was adopted by amended and the House as its version of what became the Education Amendments of 1972. H. R. 92d Cong., Sess., 1st Title X. here, Of note proposal this House phrased was originally as an amendment to Title VI that have would made of that (a), Title into 601 § and would have added gist of what is now Title IX (b). as 601 H. R. supra. After further modifications not here, relevant proposal this was removed from its Title VI moorings, passed by the House, and further modified, and passed, then the Senate in a form that adopted by was the Conference Committee. See S. Conf. Rep. pp. No. 92-798, 221-222 pertinent provisions of Titles IX quoted and VI are in nn. 3 and 5, supra. Although Title IX applicable only to certain educational institutions receiving federal financial assistance, Title applicable VI is additional institutions such as hospitals, highway departments, housing and authorities. same terminating administrative mechanism for federal finan- support cial engaged prohibited institutions in discrimina- tion.18 Neither expressly statute a private remedy mentions person for the excluded from in participation federally a funded program. The IX explicitly drafters Title assumed that it would be interpreted applied as Title VI been had during the years.19 preceding eight
In 1972 when
IX
was enacted, the
in
language
critical
Title VI
already
had
been construed as
creating
remedy. Most
particularly,
1967, distinguished
panel of
of Appeals
for the Fifth
squarely
Circuit
decided
opinion
issue
repeatedly
that was
ap-
cited with
proval and never questioned during
years.20
the ensuing five
least a dozen
addition,
other federal courts reached
similar
conclusions
the same or related contexts during
years.21
those
always
appropriate
It
to assume that our
4, supra.
See n.
19“The same
procedure
operated
up
set
[enforcement]
has
great
success under the 1964
Rights Act,
regulations
Civil
and the
*17
[,]
equally
thereunder
applicable
would be
[prohibited
to discrimination
Cong.
Title
(1971) (Sen.
117
Bayh).
Rec. 30408
Accord,
IX].”
118
Cong.
(1972) (Sen.
Rec. 5807
Bayh);
id.,
(Sen. Bayh)
(“[En
at 18437
forcement of
heavily
will
precedents”
[Title
draw
IX]
these
under the
Rights
Civil
1964).
Act of
20Bossier Parish School
Lemon,
Board v.
370
847,
(CA5
F. 2d
852
1967),
denied,
cert.
panel
697 law; know the citizens, other like representatives, elected VI Title references repeated of their because case, justified especially we are enforcement, and its modes aware were representatives both that those presuming Board, 240 F. School Parish Authority, supra; v. Bossier Housing Lemon 1967). (CA5 1965), aff’d, 2d 847 (WD 370 F. 709, La. Supp. 713 alternative provided an might have Although 1983 42 U. S. C. § upon— relied it been cases—had express in some of these cause of action ante, Bights Org., 600, p. Chapman v. Houston generally see Welfare involving supra, Kenbridge, certainly not available that section was (and no clearly unavailable Moreover, 1983 was private defendant. Pro- provided in the Administrative express action such as is other cause of either pre-1972 cases upon) other relied in four cedure Act was a somewhat VI in under Title impliedly causes of action expressly or found plaintiffs Thus, private in this case. different context than is involved VI, and successfully sued officials of the Federal Government recipients of federal requiring to aid those officials'either secured orders discrimina- nondiseriminatory presently devising alternatives funds in Gautreaux v. recipients. See tory programs, off to those or to cut funds appeal, Gautreaux v. (CA7 1971), Romney, later 2d 737-740 448 F. nom. 1974), aff’d sub (CA7 Chicago Homing Authority, 2d 503 F. HUD, 809, 820 Gautreaux, 284; Shannon v. F. 2d Hills v. 425 U. S. Christian action); Southern (CA3 1970) (explicit cause discussion of Leadership Conference, Connolly, supra, (explicit dis- Inc. v. at 943-945 Weaver, Supp. action); Hicks v. 619, 622-623 cussion of cause of F. (ED 1969). La.
Finally, pre-1972 relied on Title VI as a basis other decisions several language suggesting private litigants, although with relief in favor of El Paso See Alvarado may v. provided the cause of have action. Independent Dist., Nashville (CA5 1971); School 2d 1011 445 F. I-40 Steering Ellington, (CA6 1967), de Committee v. 2d cert. 387 F. Dist., School 921; Anderson v. Francisco San nied, 390 U. S. Unified Dist. Special McGhee Nashville School (ND 1972); Supp. F. Cal. v. (WD 1966). No. Rep. Ark. Race Rel. L. Chicago Housing Authority, (CA7 See also Gautreaux v. 2d 306 436 F. Housing Chicago 1970) (dicta), denied, 922; *18 Gautreaux cert. 402 U. S. County Authority, 1969) (ND (dicta); v. Supp. 296 F. 907 Ill. Rolfe aff’d, Education, (ED 1966) (dicta),
Board
Supp.
282 F.
192
Term.
of
(CA6 1968).
prior interpretation of interpretation Title VI and. that reflects their intent with respect to Title IX. in in Allen
Moreover,
Elections,
v. State
1969,
Board
393
544,
U. S.
this Court had interpreted
comparable language
in § 5 of the Voting Rights Act as
sufficient
authorize
private remedy.22 Indeed, during
period
the.
between the
of Title VI in 1964
IX
enactment
and the enactment of Title
in
this
1972,
consistently
Court had
implied
found
remedies—
often
much
cases
less clear than this.23
It was after
that this
decided Cort v. Ash
Court
and the other
cited
cases
by the
Appeals
support
Court
of its strict construction
aspect
remedial
the statute.24
ofWe,
course, adhere
to the
approach
strict
followed in our
our
recent
but
cases,
congressional
evaluation of
into
action in 1972 must
take
fact, Congress
backdrop
enacted Title IX
of three
recently
implied-cause-of-action
issued
involving
decisions of
rights
civil
language
statutes with
similar to
Title IX.
In all
three,
Hunting Park,
a cause of action was found. See Sullivan v. Little
229; Allen;
Mayer Co.,
U. S.
Jones v.
H.
account its
Congress was
that
presume
to
appropriate but also realistic
prece-
unusually important
thoroughly familiar with these
expected
and that
courts
from
and other federal
dents
conformity with them.
interpreted
its enactment
rely
presumptions.
necessary to
these
not, however,
It is
also
part
IX is one
of which Title
package
The
of statutes
history demonstrate
provision
language
a
whose
contains
compan
and thus its
Title
Congress
VI,
itself understood
of
remedy. Section
creating
private
a
Title
as
ion,
IX,
award
courts to
federal
Education Amendments authorizes
other
than
parties,
attorney’s
prevailing
to the
fees
public educa
brought against
actions
States,
United
of elemen
in the context
Title VI
agencies
tional
to enforce
provi
of this
language
The
secondary education.25
tary and
suits
availability
presumes the
explicitly
sion
many
For
such
context.26
the education
VI
enforce
1617:
in 20 U. C.
codified
718, 86 Stat.
Section
United States
court of the
entry
a final order
“Upon the
thereof),
the United
(or any agency
or
agency, a
educational
State
a local
any
comply
provision
thereof),
failure to
(or any agency
States
color,
national
race,
or
basis of
on the
or for discrimination
of this title
1964, or the
Rights Act of
of the Civil
of title VI
origin in violation
they
United States
Constitution of the
to the
fourteenth amendment
discretion,
court, in
secondary education, the
its
elementary and
pertain to
bring
necessary
about com-
proceedings were
finding
upon a
States, a
than the United
prevailing party, other
may allow the
pliance,
attorney’s
part
the costs.”
fee as
reasonable
Amendments
Education
portion of Title VII
This
section
Act
Aid Act. Under this
Emergency
School
known as
also
elementary
secondary
schools
available
funds are made
voluntary desegregation.
court-ordered
through
process of
going
are
Act, 20
C.
702 of the
See §
“Attorney
(1972):
92-798, p. 218
Rep. No.
S. Conf.
fees.—The
pay
amendment,
the House
authorized
amendment, but
Senate
plaintiffs
brought
attorneys
in suits
for violation
to successful
fees
ment of
Rights
substitute
Act ....
conference
Civil
. . . Title VI
6, supra.
n.
See also
provision.”
contains this
hence
available;
then
of action was
cause
express
no
suits,
implied
could be
that one
must have assumed
Congress
during
explicit
made
assumption was
That
itself.27
Title VI
*20
during the debates
also aired
§on 718.28 It
the debates
27
history that
legislative
nothing in
statute
is
Although there
1983
C.
42 U. S.
Congress expected
much, may
§
says
it
contemplated
the suits
action for some of
explicit cause of
provide an
against the United
assuredly
for suits
not available
1983 is
But
§
§
for suits
it available
passed was
718 was
States,
the time
nor at
§
against a
suits
perhaps for
agency thereof),” nor even
(or any
“a State
v.
City
Education
Healthy
Board
agency.” See Mt.
“local educational
of
Cf.
Pape,
These same debates another indication that presumed that, necessary, private wherever causes of action must exist in justify contemplated by provides order to suits 718. Section 718 attorney’s seeking compliance separate provisions— fees in suits with three Constitution, VI, provisions and 718’s sister in Title VII of the pro- Education Amendments 1972. None of the last-mentioned sister express visions contains an cause contemplates of action. Section 718 also types three of defendants in agencies, those educational suits —local States and agencies, state and the In exploring Federal Government. the mean- provisions Amendments of Education in the
on other the Executive is consistent with itself,30 IX and on Title understanding apparent time.31 VI at the of Title Branch's might occur if a question arose as to what ing provision, the compliance force attempted to sue the Federal Government litigant colloquy following The of 1972. Education Amendments Title VII place: took defendant, if the the Federal Government “Mr. COOK. [I]f VII of act of this guilty [Title found violation Federal Government discriminating, then 1972], in fact and it is Amendments the Education go against the could attorney’s and the costs fees conceivable that the it is Federal Government. Government? individual sue Federal But can an
“Mr. PELL. Under this title? “Mr. COOK. Yes.
“Mr. PELL.
yes.”
“Mr.
Oh
COOK.
considerable
balance caused
busing
racial
question of
to achieve
*21
of 1972.
Amendments
the Education
during
debate
consideration
jurisdiction
the federal
debates,
proposed that the
it was
During those
busing.
ordering
In defend
prevent
from
such
them
be limited to
courts
proposal
opponents of the
area,
the
jurisdiction in this
ing federal
reliance in
important,
most
important,
the
even
courts as an
described the
stated: “We
example,
Javits
For
Senator
of Title VI.
the enforcement
powers without
[judicial] enforcement
these
simply strike down
cannot
118
Rights Act of 1964.”
the Civil
title VI of
effectively striking down
(Rep.
7558-7559; id., at 7561
id.,
at
also
Cong. Rec. 5483
See
pain, of the effort which
symptom, like
(“The busing
is a
Stokes)
furor
Edu
Board
carry
of Brown
out the mandate
has been made
Busing
suc
Rights
has been used
Act.
Title VI of the Civil
cation and
required
it because
many
have
The courts
cessfully
communities.
in
works”).
30
provided
limits
explained that
the time
example,
Bayh, for
Senator
coeduca
chose to become
undergraduate
institutions
in Title IX
(2) (A),
C.
(a)
20 U. S.
being single sex, 901
previously
§
after
tional
been
that has
type of timetable
with the
(a) (2) (A),
“consistent
are
1681
Rights
1964 Civil
Title VI of the
by
court decisions
past
the
set in
(em
(1971)
Cong.
30409
117
Rec.
of discrimination.”
in other areas
Act
(Sen.
id.,
(Sen. Bayh);
at 30407
added).
id., at 30404
also
phasis
See
Javits).
31
private
Department
intervened
behalf
1965,
In
the Justice
judicial
in
first two
resulted
litigants
litigation, which
in the Bossier
among
Finally,
very persistence
and since,
—before
judges
among litigants
and executive
as
as
and
officials, well
and
counsel,32
implicit
their
even
decisions of this Court33—
opinions
21,
implying a cause of action under Title
VI. See nn.
supra.
opinions indicate,
fully supported
As far as
those
Government
private plaintiffs’ position.
Bossier Parish School Board v.
Lemon,
(CA5 1967);
Board,
teenth Amendment and the Rights give Civil party Act do not a federal every of action cause time a School District problem— fails to resolve a making presented not of its to it Brief Opposition, student.” — 1973, O. 72-6520, p. T. No. 7. On hand, the other the Federal Govern ment and at least one explicitly other amicus curiae opposite posi took the tion —that Title VI was itself sufficient to create a cause of action. Memo randum for United States Curiae, as Amicus 1973, O. T. 72-6520, No. p. 13, citing n. Bossier Parish Lemon, supra; School Board v. Brief Legal for Puerto Rican Fund, Defense & Education Inc., Curiae, as Amicus O. 72-6520, p. T. No. 2. But cf. Brief for National Education Assn. et Curiae, al. Amici O. T. 72-6520, p. (42 No. U. C.S. *22 provided the cause of action for the relevant VI). breach of Title lengthy litigation In the culminating in the Court’s decision in Hills v. Gautreaux, supra, a litigant who public claimed that housing in Chicago being was racially located in discriminatory fashion, had filed two separate complaints relying part against Title VI—one the Chicago Housing Authority (CHA) and against one Department Housing Development and Urban (HUD), which agency was the providing federal Although funds CHA. proceeded two cases separately years, they they were consolidated before reached this early Court. In the stages suit, CHA Court, District over CHA’s objection, explicitly
of the assumption that both Title "VI and Title IX created a private right of action for the of illegal victims discrimination and the absence of legislative action to change assump that tion provide further evidence Congress that at acquiesces least in, and apparently affirms, that assumption. 7, supra. n. We have no doubt that Congress intended to create Title IX remedies comparable to those available under Title VI and it understood Title VI as authorizing an implied private cause of action for victims of prohibited discrimination.34
Third, Cort, remedy should implied not if it would frustrate the underlying purpose of legislative scheme. On the other hand, when that remedy is necessary or at least helpful to the accomplishment of the statutory purpose, the Court is decidedly receptive to implication its under the statute.35
determined that there is a cause of action under Title VI even where 1983 is not upon. relied Chicago Gautreaux v. Housing Authority, 265 Supp. F. (ND Ill. 1967). In an unreported opinion, that court apparently also found that the Title complaint VI against HUD stated a cause of action. See Gautreaux v. Romney, 2d, 448 F. (on at 737-740 appeal from the unreported decision; cause-of-action issue raised). The complaint in that suit, reprinted which is in the appendix filed by parties in Hills v. Gautreaux, derives the cause of directly action from Title VI. App., O. T. No. 74-1047, p. 35. Section 1983 was not available in against this suit officials, and the Administrative Procedure Act was nowhere mentioned. Although by the time the consolidated cases reached this Court the primary contested issue was the propriety of the relief ordered the District HUD, the Court did note that the agency had “been judicially found to have violated the Fifth Amendment and the Civil Rights Act of 1964 . . . .” 425 S.,U. at 286. The Government did not raise the question. cause-of-action 34“In sum, we conclude Congress clearly understood conferring power upon the [grant courts to .. relief] . under the statute.” See Dalia v. States, United ante, at 254. Indeed, the legislative evidence of intent is so compelling that we have no hesitation in concluding that even the test espoused by now Me. Justice Powell, post, at is satisfied in this case.
35 SeeAllen v. State Board Elections, S., 556; U. Wyandotte *23 704 two accomplish sought to VI, Title its model IX, like
Title First, objectives. different, somewhat nevertheless related, but sup- resources to use of federal to avoid Congress wanted provide wanted second, discriminatory practices; port practices. those against protection citizens effective individual de- identified repeatedly were purposes Both of these the two statutes.36 bates on pro- statutory by the served generally is purpose first for support financial of federal termination for the
cedure rem- That discriminatory practices.37 engaged institutions Co. v. 202; I. Case States, S., at J. U. Transportation Co. v. United 389 Airlines, S., at 690. 432; v. Central Borak, S., Machinists U. of Senator example, the comments VI, Title for respect With Pastore: United States funds of the is make sure that purpose of title VI “[T]he (1964), Cong. discrimination,” 110 Rec. support racial not used to
are Lindsay: Representative compared the comments with should body providing a proposed legislation has to do “Everything in this power some protect individual from of law which will surround protection of individuals. When complex. designed bill for the This himself, he but if protection to wronged he can invoke the individual is then or because of fear of economic distress is unable to do so because protection for that individual is authorized to invoke Federal Government Id., at 1540. that individual . . . .” IX, Representative Mink: respect comments of to Title
With university policy discriminates “Any college has . . . which which [a] such but applicants ... is free to do so IX] women [Title taxpayers country pay asking of this institutions should not be pay the Federal Millions of women taxes into this kind of discrimination. collectively treasury be used for the resent that these funds should and we Cong. equal access,” support denied of institutions to which we are (1971), Rec. 39252 Bayh: compared
should be
with the comments of Senator
strong
comprehensive
which I believe
is a
measure
“[Title IX]
they
provide
legal protection
if
seek
needed we are to
women with solid
Cong.
5806-
training for
Rec.
education and
later careers ....’’
occasions,
IX,
See 902
1682. There are some
U. S. C.
remedy
however,
purpose
cannot be served unless a
when even
*24
edy is, however, severe
may
and often
provide
an appro
priate means of accomplishing the second purpose merely
if
an isolated violation has occurred.38 In that
situation,
violation might be remedied
efficiently by
more
an order re
quiring an institution
accept
applicant
an
who had been
improperly excluded.39
Moreover,
that kind of situation
it makes
to impose
little sense
on an
only
individual, whose
interest
is in obtaining a benefit for
or on
herself,
HEW, the
burden of demonstrating that an
practices
institution’s
are so
pervasively discriminatory
complete
that a
cutoff of federal
funding is appropriate. The award of individual relief’ to a
private litigant
prosecuted
who has
her own
only
suit is not
recipient
available. For a
of a
grant
one-shot
of federal money, for
example,
temptation
to use the
money
fruits of that
in furtherance of
a discriminatory policy adopted
years
several
later would not
dampened
be
by any powers given the
agency
federal donor
under Title IX.
38Congress itself has noted
severity
of the
remedy
fund-cutoff
and
has described it as
resort,
a last
all
including
failing.
else—
“lawsuits” —
See,
g.,
e.
110 Cong.
(1964)
Rec. 7067
(Sen. Ribicofif):
“Personally, I think it would be a rare ease when
actually
funds would
off.
cut
In most cases
remedies,
alternative
principally
to end
lawsuits
discrimination,
preferable
would be the
and more
remedy.
effective
If a
Negro child
kept
were
out
aof
school receiving Federal
I
funds,
think it
would be
get
better to
Negro
child into
than
school
off funds
cut
impair
and
the education of the white children.”
id.,
See also
at 5090,
(Sen.
Humphrey);
id.,
(Sen.
Javits).
insight
This
is not of
vintage.
recent
Cumming
v. Richmond
County Board
Education, 175
U. S.
several black taxpayers
sued
provided
school board that
high
free
school education
children,
to white
but not to black children.
remedy they
The
sought
separate-
under the
but-equal doctrine then in force under the Fourteenth Amendment, see
Plessy
Ferguson,
closure
high
the white
school
rather than appropriation of funds for a black high school. Mr. Justice
Harlan for
rejected
the Court
claim,
noting that “the result would
only be to take from white children . . .
giving
without
to colored chil
dren
S.,
at 544. He suggested that the
might
result
be dif
ferent if
plaintiffs
“the
had sought to compel the Board of Education . . .
to establish and maintain
high
school for colored children
Id.,
. . . .”
at 545.
cases
in some
with —and
fully consistent
but is also
sensible
statute.40
orderly enforcement
necessary
even
to—the
which
Welfare,
and
Education,
Health,
Department
IX,
administering Title
for
responsibility
charged with the
remedy and
inconsistency between the
no
perceives
takes the
agency
contrary,
remedy.41 On the
public
IX,
Senator
and
kinship of Title VI
noting the
In the context of
former
available under
Bayh
procedures
the enforcement
lauded
Cong.
flexibility.” 117
“their effectiveness
“great success” and
their
earlier, private
(1972). As noted
(1971);
Cong.
Rec.
Rec.
proce
those
part of
especially flexible
important
suits had become
*25
Congress.
also
assuredly
See
by 1972,
known
and were almost
dures
attorney’s fees
(Sen. Mondale) (noting that
(1971)
Cong. Rec. 11339
117
necessary
a
to forestall
litigants under
718 were
for successful Title VI
§
rights”).
enforcement crisis in the field of civil
“law
purposes and the
consistency
Title
IX’s
A further indication of
remedy
that,
the District Court
of a
is the fact
until
existence
consistently
Appeals
case,
federal courts had
decisions
this
Court
it.
remedy
Title VI before
recognized
Title and under
such a
that
(CA4
g.,
banc,
interference when it
Title IX.
discussed
As
part
IX
provision,
statute of which Title
is a
also contains
allow-
unequivocal position the individual remedy
provide
will
effective assistance to achieving the statutory purposes. ing attorney’s fees under Title VI. No matter
narrowly
how
provi-
sion
read,
it certainly
envisions
enforcement
apart
suits
from
procedures
administrative
VI,
that Title
like Title IX, expressly
creates.
If such suits
hamper
would not
administrative enforcement of
VI
local and state
officials,
school
it is hard to
they
see how
would do so
respect
recipients
other
of federal funds.
True, this Court has sometimes refused to imply private rights of action
where administrative or like remedies are expressly available. E. g.,
National
Passenger
Railroad
Corp. v. National Assn.
Railroad Pas
sengers, 414 U.
453;
S.
T. I. M. E. Inc. v.
States,
United
Davis, Administrative statements, public in other well as Court, as this to In submissions its necessary resources not have candidly it does admitted has HEW circumstances: number a substantial Title IX enforce federally funded police all hope matter, cannot HEW practical a “As always were enforcement administrative even if programs, education implied An injuries. redress individual might not feasible, it often purpose fundamental necessary to ensure right of action federally educa- funded discrimination of sex IX, the elimination 6. Respondents for Federal Reply Brief achieved.” programs, is tion Reg. 24148-24159 40 Fed. also proposed fact, HEW just cited, in rulemaking proposed the notice IX and Title Title VI both resources employ its enforcement reactive than use] rather [to remedy “systemic discrimination solely to relief securing individual geared toward approach complaint-oriented explained agency Id., discrimination.” claiming persons workload manage its workload' —a necessary allow it to approach as this higher involving discrimination sex “complaints up of made primarily commentary Ibid. Adverse employment.” academic education steadily has been although result it, to abandon proposal led HEW explanation Nonetheless, its complaints. unprocessed increasing backlog capa- enforcement that HEW’s the conclusion supports proposal *27 areas where those precisely limited especially IX are Title bilities effective. most can private suits provides justification particular statutory
prohibition. There can be question no but this aspect of the Cort analysis supports implication of a fed- eral remedy.
In sum, there is no need this case weigh the four Cort factors; all of them support the same result. only Not words and history of Title IX, but also subject its matter and underlying purposes; counsel implication of a cause of action favor private victims of discrimination.
II Respondents’ principal argument against implying a cause of action under IX Title is that it is unwise subject ad- missions decisions of universities judicial scrutiny at the behest of disappointed applicants on a case-by-case basis. They argue that this kind of litigation is burdensome and inevitably will have an adverse effect on independence members of university committees. This argument is not original to this litigation. It was
forcefully advanced in both 1964 and the congres- sional opponents of VI and Title IX,43 and squarely rejected by the congressional majorities passed the two statutes. In short, respondents’ principal contention is not a legal argument at all; it addresses a policy issue that Con- gress has already resolved.
History has borne out the judgment of Congress. Although victims of discrimination on the basis race, religion, national origin have had private Title VI remedies available at least since 1965, see n. 21, supra, respondents have not come forward with any demonstration that Title VI litigation has been so costly or voluminous that either the academic community or the courts have been unduly burdened. Noth- ing speculation but supports the argument that university 43 E. g., 117 Cong. Rec. (1971) (Rep. Wyman); 110 Cong. Rec. (1964) (Sen. Talmadge). *28 710 litiga- risk of about the concerned be so will
administrators responsi- important discharge their will fail they that tion manner.44 professional and independent in an bilities Ill deserve that arguments other two advance
Respondents and IX Title that premise from Starting the brief mention. respondents construction, same the receive should Title VI Titles other with VI of Title comparison (1) argue that cre- Congress that demonstrates 1964 Act of Rights Civil de- them found whenever remedies private express ated 45 legislative from the excerpts certain that (2) sirable; aof implication foreclose history of Title VI remedy.46 respect persuasive were arguments if these
Even VI, Title passed when it in 1964 understanding Congress’ passed in 1972 when it that the fact they not overcome would VI Title impression Congress IX, Title by (and, IX Title arguing are Furthermore, respondents unless entirely unconstitutional, argument this VI) implication, is itself may community ac the academic disruption of Whatever misconceived. by seeking dwarfed admission is suit company occasional individual of all statute —a cutoff contemplated expressly the relief argued fact, opponents of Title VI reason, funds. For judicial remedies on of reliance rejected in favor provision be should example, reply For Amendment. the Fourteenth available under remedy, Senator advocacy of administrative Humphrey’s Senator Talmadge asked: authority rely "Why the court’s [under the Senator does giving arbitrary, capricious, wholesale Amendment], Fourteenth instead towns, cities, entire power to starve punitive to some Federal bureaucrat Cong. swoop?” Rec. States, regions at one fell (f)(1), (Title II); 42 U. S. C. S. C. §§2000e-5 See U. §2000a-3 (Title (3) VII). id., (Rep. (1964) (Rep. Celler); Cong. at 2467 See Rec. 1519 id., id., (Sen. Pastore); id., at 6562 (Sen. Kuchel); at 7065 Gill); Proxmire). id., at 8345 (Sen. (Sen. Keating); IX could be enforced and that Title action similarly would “For supra, enforceable. at 696-699. correctly per- inquiry Congress relevant is not whether ceived the perception then state of the rather what its law, but GSA, of the state of the law was.” Brown 425 U. S. *29 828. But of respondents’ arguments is, any event, each unpersuasive. statutory
The fact other provisions complex that of a scheme a express accepted create as remedies has been sufficient refusing imply appropri reason for an otherwise remedy ate under separate g., a section. Case Co. See, e. J. I. Borak, 377 426; Wyandotte v. v. Transportation Co. States, United 389 generally U. S. 191. the Court has Rather, type legisla avoided this of “excursion into of extrapolation Ash, tive Cort is intent,” v. at 83 unless there S., U. n. Congress more to ex other, convincing, evidence that meant remedy. Passenger Corp. clude the National Railroad v. National Passengers, Assn. 458-461. S., Railroad U. at of legislative of excerpts
With one set the from the exceptions, history by of respondents contrary implication cited private remedy concerned with were all VI, procedure for of them terminating funding.47 None remedy any hostility implied private evidences toward an offending They terminate are consist- the discrimination. frequently ent with de- assumption expressed during such a kind judicial remedy through bates that —either of broad adopted construction state action under of Appeals Fourth in Simkins Circuit Moses H. Cone Memorial Hospital, 323 2d 959 (1963),48 F. earlier, type procedure As discussed is far more severe than suits, already individual subject express and was administrative provisions in Title VI. following Consider the Humphrey: comment Senator
“The purpose of Title VI is to make sure that funds of the United States are not support many used to racial discrimination. In instances practices segregation or discrimination, end, which Title VI seeks to are to pri- be available remedy49 implied through —would fund-cutoff issue was how litigants regardless vate resolved. clearly go to a Federal funds State This is so wherever
unconstitutional. may It so where engages in racial discrimination. also be which agency institutions, support segregated under the go private, funds Federal Hospital, 323 F. 2d v. Moses H. Memorial in Simkins Cone decision cases, denied, such dis (CA4 1963), all [cert. 938]. contrary of the policy, to national and to the moral sense crimination is funds Thus, simply designed title to insure that Federal Nation. VI spent are in accordance with the Constitution and the moral sense Cong. (Sen. Humphrey); Nation.” 110 Rec. 6544 See also ibid. (Sen. Pastore); id., (Sen. (Sen. id., Ribicoff); id., at 7062 at 7065 id., (Sen. Javits). Allott); at 12719
Although suggested it has been the state-action doctrine overbroad, Orange g., Hospital Corp., Simkins e. Greco v. Memorial (CA5 1975), denying Congress F. 2d 873 there is no the Title VI approved availability many assumed and suits *30 private recipients of federal funds. during suggest assumption Various statements made the an debates judicially apart that Title VI would be enforceable from the adminis procedures trative contained in 602. In addition to Senator Ribicoff’s § principal preferable reference to “lawsuits” as the and “alternative” cutting supra, off remedy, funds under the administrative see, n. for example, Humphrey’s Senator statement:
“Title VI eminently impact would have a substantial and desirable on programs of require assistance to education. Title VI would elimination segregation ‘impacted racial discrimination and in all area’ schools receiving grants Federal Public under Laws 815 and segrega- 874. Racial prohibited by tion at such schools is now the Constitution. Commis- The sioner relying any of Education would be plans warranted in on existing desegregation appeared adequate litigation which effective, by and on private parties by Attorney or the General under title IV the 1964 [of Rights Act], primary securing compliance Civil as the means with this nondiscriminatory requirement. expected It is not would be funds long cut off steps being so as reasonable good were taken in faith to end segregation.” Cong. unconstitutional (1964) Rec. (emphasis added). interesting Also is a debate on the Senate floor on March Id., at 5253-5256. Talmadge began Senator the relevant discussion by characterizing powers delegated the “broad” agencies only excerpt upon by relied respondents that deals precisely question the whether victim of discrimina the private remedy has a by tion under Title VI was a comment Id., 602 as Humphrey responded “barbarous.” at 5253. When Senator § “right” against justified the discrimination embodied in 601 those § powers, following broad enforcement exchange the ensued: right “Mr. every TALMADGE. That enforceable court of the land, and the Senator from Minnesota knows it.
“Mr. existing HUMPHREY. That is correct. The law of land is the stated in section 601. Sections 602 represent and 603 do ... They extension of that represent procedural law. . . . limitation power agency of an existing Id., affected to enforce powers.” at added). (emphasis At point, began this argument repeatedly debate focus on an made by opponents of Title subsequently VI until it was amended. See id., (Sen. also Long). recipients 13435-13436 Although of federal aid in the form of “a contract of guaranty” insurance or exempted were from procedure administrative enforcement opponents felt that § exemption should be included in the rights statement of in 601 as Otherwise, they argued, well. exemption ap- not be would effective— parently because of possibility, by mentioned Talmadge Senator quoted above, judicial enforcement outside of 602. In the midst of discussing point, Senator Stennis asked if “section 602 is a method by which section 601 be enforced,” will Humphrey which Senator re- plied: “Yes, it is the governmental agencies method those and activities covered Cong. VI.” 110 (1964) Rec. (emphasis added). point,
At this fray: Senator Case entered the “. . . I wish to make clear that the provisions words and of section 601 and the substantive rights established and stated in that section are not limited limiting words of section 602. says Section 602 that when department agency of the Government —and I think the Senator was correct, earlier, when he made this careful distinction —in dealing with the *31 programs kinds of which are referred to in 602, attempts section to prevent discrimination, the what-not, department or the must follow this procedure. My only I agree. point is I do my not want embrace- ment of indicating this bill to be construed as that I believe that the rights individual, substantive they of an may as exist under the Constitu- they tion, may 601, be stated section are any limited in degree whatsoever.” Ibid. mollify In his opponents effort to the on Title VI the issue of federal
guarantees, Humphrey appeared Senator at disagree first with Senator disappointment In Keating. expressed he the it, Senator for an suggestion his ex administration’s failure to include analysis Our of the remedy proposed in its final bill.50 press point However, reiterated interpretation. Case’s when the latter the any individuals, they if rights 602 “is intended to limit the have § by way way rights provisions bill, from enforcing apart their the any agreed procedure,” Humphrey appar- of suit or other Senator —and ently further: went agree “I con- thoroughly with the Senator insofar as an individual is States, As cerned. a citizen of the United he has his full constitutional rights. right go He has his to court and institute suit and whatever may provided in the no law and in the Constitution. There would be qualification on the individual. limitation on the limitation would be agencies” (emphasis added). Id., of Federal at 5256 Keating’s 52, Senator conclusion of this debate in n. is discussed infra. points controversy exchange. First, Two need be made about this guarantees by removing over how to treat federal was later resolved guarantees adding provision, reference those from 602 and a new § §605, simply exempted which them from the 'of the effect title. This complaints solved the opponents, diluting of the Title’s without rights Second, although may declaration of in 601. this debate evidence prior some confusion over existing the law to the of Title enactment VI many insofar as that law would not reach of the discriminators by supra, affected but cf. congressional n. it demonstrates a assumption rights automatically that whatever existed under the law were by private enforceable litigants. provisions The administrative §§ simply and 603 were means which additional —and far more contro- procedures were established and then limited. versial— 50“Parenthetically, while we favored the right inclusion of the on to sue part agency, State, facility or the deprived which was funds, Federal we also favored the provision granting inclusion of a right person suffering to sue from discrimination. This was not included in Cong. the bill.” 110 Rec. 7065 Although not cited respondents, passages two other legislative in the
history are of id., (Sen. similar effect. See at 5266 Keating); Hearings before the Judiciary Senate Committee on the S. 1731 and S. Cong., Sess., (1963) (Sen. 88th 1st Keating). August 1963, Department agreed Justice original to redraft its proposal light congressional Title VI in time, criticism. At that Keating, along
Senator with Senator Ribicoff, following submitted the *32 history legislative convinces us, that neither however, incorporate administration’s suggestion decision to that expressly in Keating’s its nor bill, response Senator to decision, rejection private right indicative a of action against recipients of ap- federal funds. the former Instead, pears compromise been a protecting have aimed indi- at vidual rights subjecting suits,51 without the Government suggested provision Department to the for its consideration in the redraft- ing process.
“(a) any person engaged Whenever has there grounds or are reasonable any person engage any to believe that practice is about to act or which any deprive person any right would privilege other or secured requirement Rights nondiscrimination of section 601 of the Civil Act of proper proceeding preventive relief, action other civil or for including application permanent temporary injunction, for a or restrain- may ing order, (1) by person order, aggrieved, or other be instituted (2) by Attorney or General or in the name of the United States. any proceeding hereunder, the United States shall be liable for costs person. the same as a
“(b) jurisdiction The district courts of the United States shall have proceedings pursuant instituted to this section and shall exercise same regard party aggrieved any without to whether the shall have exhausted remedy may provided or Cong. administrative other law.” 109 added). (1963) (emphasis Rec. explained Keating that this
Senator section would have allowed require funding “specific performance to terminate suits requirement” Id., generally nondiscrimination in Title VI. Hearings, supra, at 349-352. Keating suggestion complaints was made in the context of broader original VI, quoted 14, supra, of Title n. version which dependent remedy. See, too g., too weak and on the fund-cutoff e. (1963) (Sens. Cong. Keating). Rec. 14833-14835 Ribieoff and That ver- sion, any noted, explicitly it was not should be declarative of individual right against Instead, merely agencies discrimination. allowed federal discriminatory recipients. withhold funds from The result of the administration's reconsideration Title VI was a Although major compromise. redraft, part its which in was enacted as VI, express private did not include an cause of action either to cut discrimination, rephrase off to end it did funds or 601 as a declaration *33 merely expression isolated latter one Senator’s while the In remedy.52 short, preference express private of a for an remedy. a implication neither with the such is inconsistent history legislative in any Nor is there other indication the any Congress voted in favor of the statute Member not include understanding on an that Title VI did reliance private remedy. a right spent
of an absolute individual not to have federal funds in aid of discrimination. plausible compromise. form,
There is a reason for final its implication private remedy against 601 was far more conducive to of a discriminatory recipient original language, than was the but at the same remedy arguably implication private time less conducive to of a (as recipient) compel the Government well as to the cutoff discriminatory willing private rights against Although of funds. to extend may recipients, encourage the Government not have been anxious to suits against itself. context, Congress,
In this it is also understandable some Members of earlier, unavailability as noted evidenced dissatisfaction at the under Title supra. VI of suits to cut off funds. remarks cited in See n. Keating by respondents, 60, supra, Even the remark relied on n. can be light. understood in this earlier, Keating’s noted colleagues As some of Senator came to the express remedy view that of an absence would not foreclose implication right-declarative language of one under the adminis supra. proposal. Keating, tration’s final n. Even Senator after by listening expressed 13, 1964, to this view Senator Case in the March quoted ibid., agree although debate appeared to he wished the still — remedy express: were myself very analysis “I wish to careful associate with the made say Jersey agree thoroughly. him Senator from New that I If means, ought the bill does not mean he it what has indicated to be made powers to mean so. I think the limitation of set forth in too title VI is State, political State, Under 603 a or extensive. section subdivision of a agency either, taking an which is denied funds because discrimination is place, given right of action in court. But there is no correlative discriminatory right granted projects by in the citizen. If funds are public officials, project the citizen who is denied the benefits of the no has right bring court, Cong. correlative a suit and he should have.” 110 added). (1964) (emphasis Rec. 5256
IV When Congress private litigants intends to have a cause of action support statutory their the far better rights, course is for it specify as much rights. when those it creates But the long Court has recognized that under certain limited circumstances the of Congress failure incon- to do is not so sistent with an intent on its part to have such remedy avail- able to persons legislation. benefited its IX presents atypical situation in which all of circum- stances that the Court has previously supportive identified implied remedy present. are We therefore conclude that *34 petitioner may maintain her despite the lawsuit, absence any express authorization in for it the statute. judgment
The Appeals Court of is the reversed, and case is remanded for proceedings further with this consistent opinion.
It so ordered. is Burger Mr. Chief Justice in judgment. concurs Mr. Justice Rehnquist, whom Mr. Justice Stewart joins, concurring.
Having joined opinion my only in case, Court’s this purpose in writing separately is to explicit make what seems to me already implicit in I opinion. approach think the of the Court, in analysis reflected problem its this case and cases such Martinez, as Santa Clara Pueblo v. Ash, U. S. 49 (1978), Cort v. 66 (1975), National Passenger Railroad Corp. v. National Assn. of Railroad Passengers, 414 U. 453 (1974), quite is different from analysis in earlier cases such as Case v. J. I. Co. Borak, 377 U. S. 426 question of the existence of a private right basically action statutory one of con ante, struction. 688. And while general state courts of jurisdiction still enforcing the common law well as statu- tory may federal courts en- law less constrained than are surely look latter must forcing by Congress, laws enacted to those laws to determine whether there was an intent right create a of action under them. entirely do and the slate, however,
We not write on an clean opinion during Congress, Court’s demonstrates that least at> period enactment of the several of the Civil Titles Rights rely to a large tended to extent on the courts to Act, decide whether a private right action, there should be rather than determining question for I. itself. Cases such as J. Borak, Case supra, Co. from numerous cases other courts, gave Congress federal reason think good judiciary would undertake this task. I fully agree with the Court’s statement that “[w]hen Congress intends litigants to have cause of action support statutory their far rights, the better course specify it to as much Ante, when rights.” it creates those at 717. It seems to me that I the factors to which have here briefly apprise adverted lawmaking branch of the Federal Government the ball, may so to speak, well now be its court. Not only “far Congress is it better” for to so specify when private litigants it intends to have a cause action, very but for this reason this the future should *35 extremely reluctant imply to cause action such absent specificity part on the Legislative Branch. Justice with whom Justice White, Blackmun
Mr. Mr. joins, dissenting.
In avowedly to seeking provide an additional means to effectuate the broad purpose of § 901 of the Education Amend- ments of 1972, U. § S. C. to end 1681, sex in discrimination federally funded educational the Court fails heed programs, the concomitant legislative purpose not to private create new remedy implement objective. Because in my view the legislative history and statutory scheme show that Congress intended not provide a new private action, cause of
because under our previous decisions such intent is control- I ling,1 dissent.
I The Court recognizes that because Title IX explicitly patterned after Title VI of the Rights Civil Act of 1964, U. S. C. seq., § 2000d et it private difficult infer a cause of action in the former but I not the latter. have set out once my before reasons for concluding private that a new cause of action to enforce Title VI should not be implied, University Regents Bakke, v. 438 U. S. of California (1978) (separate opinion I and find J.), nothing White, legislative materials reviewed the Court that convinces me to the contrary. Rather, legislative like the history, terms of Title VI itself, abundantly makes clear that Act was and is a mandate to agencies to eliminate discrimination in federally funded programs. Although there was no intention to cut back on remedies existing under 42 U. S. C. 1983 § to challenge discrimination occurring under color of state law, there is no basis for concluding Congress contemplated the creation of remedies either against private parties who had previously subject been to no constitutional or statutory obligation not to discriminate, against federal officials or agencies involved funding allegedly discriminatory programs. argues funding because author- termination,
ized
C.
2000d-l,
a drastic
Con-
remedy,
gress must have contemplated private
directly
suits in order
intrusively
less
to terminate
allegedly
the discrimination
being practiced by
recipient
But the Court’s
institutions.
conclusion does
follow from
funding
not
because
premise
its
contemplated
termination was
only
even
—or
primary- agency action to end
Con-
discrimination. Rather,
—
(1975);
Cort 422 U. S.
Ash,
Securities Investor Protection
*36
(1975);
at least to proposition This discriminatory manner. racially in a funds Franklin President every since for President new, was racial discrimi- prohibited Order, by Executive had, Roosevelt Fur- programs.3 federally assisted in certain in nation hiring fed- dispensing agencies that most was aware ther, Congress refuse or terminate “authority already had funds eral variety requirements- comply with for failure to assistance Con- But action.” by by administrative statute imposed ensure the efforts to agency plainly dissatisfied gress predicate funds;5 and nondiscriminatory of federal use Humphrey (Sen. Humphrey). Senator (1964) Cong. 2 110 Rec. 6544 19, 1963: Kennedy’s message of June President noted " taxpayers of all public to which all requires funds, justice 'Simple entrenches, encourages, any which contribute, not be fashion spent races ” Id., at 6543. discrimination.’ subsidizes, or results racial (Pres. (1938-1943 Comp.) g., No. 3 CFR See, Exec. Order e. (Pres. Comp.) (1949-1953 10210, 3 Roosevelt); Order CFR Exec. No. (Pres. (1949-1953 Comp.) 10479, 3 CFR 961 Truman); Order No. Exec. (1959-1963 Comp.) 10925, 3 CFR 448 Eisenhower); No. Exec. Order Kennedy). (Pres. (1964) (Sen. Humphrey). Rec. 6546 Cong. Humphrey noted: Thus, Senator dis- eliminate racial branch to been done the executive “Much has Kennedy, President federally programs. assisted from crimination federally hous- assisted order, prohibited such discrimination Executive federally Individual employment assisted construction. ing, and in they programs administer.” action for agencies taken effective have Id., at 6544.
Nonetheless, policy end that national has announced President “President after But, regretta- Federal assistance. programs and in Federal discrimination Id., at 6543. policies.” open of these bly, been there has violation *37 Title VI was the belief that “the time come [had] ... to declare a broad principle right and and to necessary, make it effective for every Federal program involving financial assistance by loan grant, or contract.” Far from conferring new private authority to enforce the policy federal of nondiscrimination, Title contemplated VI agency action to be the principal mechanism for achieving this end. proponents of Title VI not stressed that it did “confer sweeping new authority, of undefined to Federal scope, departments and agencies,” but was intended instead require the exercise of existing authority to end discrimination by fund recipients, and to furnish procedure for this purpose.7 Thus, § 601 states policy federal of nondis- crimination, and § 602 agencies mandates that achieve compliance by refusing grant or continue by assistance or “any other by means authorized law.” Under cutting § 602, off funds is forbidden unless agency determines “that compliance cannot be secured voluntary means.” As Humphrey Senator explained: encourages
“[Title VI] Federal departments agencies to be resourceful finding ways of ending discrimination voluntarily without forcing termination of funds needed for public health, education, social welfare, relief, disaster 6Id., at 6544. Enactment of Title VI “any would remove conceivable doubts” as authority to the agencies to eliminate discrimination programs they “give funded and express legislative support agency’s to the actions. . . . agencies appear [S]ome to have been to act reluctant in this require area. Title VI will Ibid. them to act.” Humphrey Senator explained further “[i]n connection programs various Federal higher aid education, language institutes, grants research colleges, like, Title VI requirements . would . . authorize of nondiscrimination. In a number of programs, such Id., already action has been taken.” Ibid. Senator Humphrey “existing noted that statutory authority is, however, procedural surrounded safeguards pro which Title VI vides.” Ibid. funds needed Cutoff of urgent programs. and other first, step, not the be the last purposes such should racial discrimination.” program to end effective (1964).8 Cong. Rec. there would contemplated that Congress
To be sure, *38 means” The “other enforce VI. brought to Title litigation contractual agency include suits to enforce provisions §of 602 reg- compliance agency provisions and antidiscrimination Department the Justice brought by suits ulations, as well as a recipient public the Act, under Title IV of the where suits knew would entity.9 Congress also that there id., also at See 6544: funds, but to end to off of Title VI is not cut “Moreover, purpose be con- general, cutoff of funds would ... racial discrimination. if there are objectives the Federal assistance statute sistent with the ending And section means of discrimination. available other effective any au- ‘by other means compliance by authorizing agency to achieve ways end discrimina- agencies to find to racial by encourages law’ thorized terminating refusing or tion without assistance.” Ribicoff): (Sen. id., at a Attorney to initiate could, General agency example, for ask “[An] public col- IV, recipient a school district if the were lawsuit under title by any virtue remedies available to agency lege; or the could use For exam- general applicability.’ ‘rule, regulation, or order its own be to way proceed often agency to- would ple, the effective most requirement part of a con- the nondiscrimination adopt rule that made agency would part recipient. . . or . . . the obligation tractual regulations.” compliance authority with its own to enforce have sue Ribicoff, 7067, by on which “lawsuits,” id., at Senator The mention of the fore- ante, 38, 712 in reference to relies, at 705 n. n. see ob- pointed have the out: “All of these remedies going. the Senator As discrimination, than to end rather seeking end the advantage of vious Cong. Rec. 7066 the assistance.” 110 provided has (1978), By regulation, (a), 80.8 86.71 CFR HEW see §§ Department of Justice to the “other in 602 include referral means” § any or con- under statute rights of the States
for enforcement of United undertaking. tractual
to enforce 601; § but these suits were not by authorized 601 itself but by 42 U. S. C. § 1983.10 Every excerpt from the legislative history by cited the Court shows full awareness suits could redress discrimination contrary to the Constitution and Title VI, if the imposed discrimination were by public agencies; not one suggests contemplation statement of lawsuits against recipients not acting color state law.11 Humphrey Senator was quite correct asserting “right individual’s to go to court and institute suit” for violation of the Fourteenth ante, Amendment or § see n. 49, was not 712-714, limited presence of alternative enforcement mechanisms Section provides private remedy for deprivations under color of state law of any rights “secured Constitution and laws,” and noth- ing suggests VI an intent exception create an remedy historic for vindication of rights 10For instance, *39 quotes the Humphrey’s Senator statement that “litigation by private parties among] be primary [would the of means se curing compliance” 601, ante, at 712 n. 49. But § reference to the Senator’s entire remarks shows he was contemplating under suits § The segregation . prohibited by acial . . “[r] the “litiga Constitution” and . tion . . under Title IV of the Rights Act,” 1964 Civil Cong. 110 6545 Rec. (1964), to were limited discrimination under color of law and did not by reach parties. discrimination private Congress was well aware of against public 1983 agencies suits brought prohibition. § to enforce this id., at 5247-5256. Court, ante, The 711-712, at 48, rely n. appears to on a statement Humphrey citing Senator Simkins v. Moses H. Cone Hospital, Memorial (CA4 323 F. 2d 1963), denied, cert. U. (1964), support S. 938 as proposition for the that private remedy. Title VI created a new But brought Simkins was under 42 University U. S. C. 1983. See Cali § of Regents Bakke, v. 265, (1978) (separate 383-385 opinion fornia J.). any of although White, event, there no doubt enacting that Congress proscribe private VI discrimination, intended the ex cerpt quoted by suggest Congress the Court does not contemplated private remedy against individual all discrimination thus prohibited. To contrary, Humphrey recognized Senator the uncertain of status Simkins as exposition of authoritative 1983 and the Fourteenth § Amendment. how- history shows, legislative contrary action.12 state already to this intend to add did not Congress ever, not intend did Congress remedy. Particularly, existing not practiced discrimination remedy to create a institutions.13 by private parties under color of state but law Act, ex part the 1964 as of Indeed, 2000c-8, enacted 42 U. S. C. § “in private remedies discrimination pre-existing pressly preserves by 1983. provided education,” include the remedies public § which would private causes confer Although concluding that Title IX and Title VI remedies addressing permissible from action, Court refrains of focuses on suits Thus, the Court of action. such a cause available under allegedly injunctive relief, discriminated requesting, individuals not programs, does federally but assisted educational against be admitted to recipient institu against either possibility of a suit explicitly foreclose funding of require of funding agency termination a federal tion or apparently cases discriminatory In at two program. least allegedly by the approvingly cited which directly of are brought both federally continuing the enjoined funds was from Court, recipient of Blackshear funding. enjoined terminate project, and HUD assisted 1138, 1150 Authority Austin, Supp. 347 F. Org. Housing v. Residents of 1969). (ED Weaver, La. Supp. (WD 1972); Hicks v. Tex. F. private parties cannot at the behest Such intervention courts safeguards provided in procedural reconciled with the numerous (separate supra, Regents Bakke, at 381-383 University v. see California encompass J.). opinion 1983 cause of action does White, The § equi only legal or permits such funding termination, for it remedy right. “deprivation” of appropriate “redress” table relief as County Ed., 175 U. S. Cumming Richmond Board v. Cf. University my opinion in separate to citations In addition g., 110 4, see, e. Bakke, supra, 385-386, Regents and n. California (1964): Cong. Rec. 5256 *40 of rights limit is not “Mr. CASE. intended [Section 602] lights apart way enforcing they any their individuals, have from if The by way any procedure. bill, or other provisions of suit any rights that exist.” to cut down provision of the bill not intended insofar thoroughly agree the Senator I “Mr. HUMPHREY. an individual is concerned.. . .” ante, opinion, colloquy excerpted Court’s of this in the remainder
at 714 n. 49.
II
The Court
further concludes that even if it cannot be
persuasively demonstrated that Title VI
created a
right
action, nonetheless
remedy
this
should be
inferred
Title IX
prior
because
its
enactment several lower courts
had
entertained
suits to
the prohibition
enforce
on
racial discrimination in Title VI. Once again, however, there
is confusion between the existing § 19-83 right of action to
remedy denial of
rights
under color of state law—
which, as Congress recognized,14 would encompass suits to
enforce the nondiscrimination
of §
mandate
601-—and the
creation of a
right
new
action
private discrimination.
In the case the Court
upon
relies
most
Bossier
heavily,
Parish
School Board
Lemon,
erroneous of effec- guise IX Title into importation through in the one statement is not intent. There legislative tuating enacted that Congress that history indicating legislative that much less litigation, Bossier IX aware was plaintiffs’ uphold to relied on theory particular adopted the in that case.17 standing acting under defendant cases the 601, of these but in both to enforce § Supp. Authority, 265 F. Chicago Housing v. law. Gautreaux color of state holding of be the 1967), what it believed (ND Ill. followed 582, 583-584 though the even 601 “standing” to enforce had § individuals Bossier that 8-9, 1, cert. 2d Daley, F. 373 Street Assn. v. Green in Circuit Seventh agree express its previously declined (1967), had denied, S. 932 Housing Org. v. Residents Blackshear Bossier. aspect of
ment with Subse on Gautreaux. 1140, turn relied supra, Authority Austin, at Authority litigation Housing Chicago v. quent in the Gautreaux decisions every count 1983 sought relief under plaintiffs expressly § that noted 2d 1969), F. (ND and 436 907, Ill. Supp. 908 296 F. see complaint, their denied, 402 U. S. 907), Supp. cert. 1970) (aff’g (CA7 296 F. 306, 307 a suit that was cited Court (1971). The case 922 one Hawthorne issue. not mention cause-of-action did organization 1972). (ED Supp. Va. Inc., 1382 Assn., 341 F. Kenbridge Recreation v. 17 16, supra, eases n. Bossier, the cases discussed In addition 1983, see provided action was holding § the cause of explicitly that involving on cases 696-697, relies 21, n. ante, opinion, Court’s ibid., assertion, see Contrary Court’s to the officials. against federal suits to enforce of action a. direct cause there none of these cases held Development, Housing Urban Department Shannon v. § allega (CA3 1970), concluded 818-819, court 2d 436 F. of discrimination specific instances respect tions of to act failure Act, 5 U. S. C. Procedure § the Administrative were reviewable under Con Conference, Inc. Leadership v. seq. Similarly, Christian et Southern 20, 697 ante, at 696 n. (ED 1971), cited Mich. nolly, Supp. 331 F. the Administrative on 10 of was based standing explicitly n. held only dis in a Bossier 702, and Act, cited 5 U. S. C. Procedure v. Gautreaux Neither remedies. of exhaustion administrative cussion Chicago v. appeal, (CA7 1971), later Gautreaux Romney, F. 2d 1974), nom. Hills (CA7 aff’d sub Housing Authority, 2d 503 F. Supp. 619 Weaver, F. (1976), nor Hicks v. Gautreaux, 425 *42 The Court’s reliance on 718 of § the 1972 Act, C. S. 1617, § misplaced. likewise provision That authorizes attorney’s fees to the prevailing party than other the United upon States entry of final a order a federal court “against a local educational a (or any agency, agency State thereof), or the United any States (or agency thereof), for to failure comply any of provision chapter” —which deals with emergency school aid, 1601-1619—“or §§ U. S. C. for discrimination on the race, color, basis of or origin national in violation of Title VI of the Civil Rights Act fourteenth to amendment the Constitution of the United they States as pertain to elementary secondary education.” Based on this provision, argued VI itself Title must have private authorized may actions. be However, whatever the value the opinion of Congress in 1972 as to the meaning of the 1964 Rights Civil Act, the attorney’s provision— fees far from intimating the against existence of a remedy private only discrimination —refers against suits public to institutions. Insofar provision as the refers in violation “discrimination... of Title one VI,” must strain to conclude that this was meant private encompass against suits agencies federal whose mandate under Title VI towas enforce § 601’s nondiscrimina- provision tion applicable to all recipients of federal funds. Rather, referring VI and the Fourteenth Amend- ment, § 718 did no more provide than for in § fees 1983 suits brought end discrimination under color of state law.18 (ED 1969), any La. contains discussion of the cause-of-action issue or even suggests question appropriate reviewing standard such funding decisions had been raised. 18There is no basis suggestion for the Court’s that at the time 718 was enacted 1983 was not available for suits state or local educational agencies, ante, see 700 n. 27. As described last Term in Monell v. City Dept. New York Services, Social (1978), 663 nn. we had never indicated Education, such suits as Brown v. Board of (1954), U. Charlotte-Mecklenburg or Swann v. Board Edu cation, 402 (1971), S. 1 might U. appropriate despite holding Pape, Monroe v. (1961), governments U. S. 167 that local were not
HI
remedy
intent not to create
new
legislative
be ignored
or Title IX cannot
for enforcement of Title VI
language
involving analogous
other
simply because in
cases
cases
private remedies. The recent
recognized
the Court has
civil
to enforce various
inferring
private right
action
language
statutory
rights
merely upon
statutes relied not
upon
granting
right
enforced,
to be
also
sought
but
explicit legisla-
compatibility, despite the
of an
clear
absence
mandate,
legislative
tive
between
enforcement and the
*43
in
itself.
concluded
purpose
Having
demonstrated
the statute
public
as
prohibited private
that 42
C.
as well
§
U. S.
in
the Court
property,
racial discrimination
the sale or lease of
little choice but to hold that
individuals could
aggrieved
had
remedy
enforce this
for
existed no other
prohibition,
there
reliance
redress such violations of the statute.19 The Court’s
Elections,
on Allen v. State Board
(1969),
393 U.
S.
equally
recognized—
unwarranted.
The cause of action there
declaratory
for
that
voting change
subject
relief
a
requirements
Voting Rights
authorization
of 5 of the
Act
§
1965,
trigger
U. S. C. 1973c—served to
enforcement
§
provided
mechanism
in the
pointedly
statute itself. The Court
declined to infer a
cause of action to enforce the
suspension requirement
Act,
of 4
atS.,
§ of
393 U.
552-
“persons”
meaning
1973,
within the
1983.
It was not until
after
§
passage
718,
principle municipal
of both Title IX and
immu-
nity
injunctive
established in Monroe was extended to
relief.
suits for
Bruno,
(1973).
See Kenosha v.
unper-
U. S. 507
Even as the Court
suasively suggests
Congress might
thought
have
not
suits
remedy segregation
in violation of the Fourteenth Amendment were
1972,
available in
Congress
busing
notes the furor in
time
over
desegregation remedy,
ante, at 701 n.
see
Hunting Park,
(1969);
See Sullivan
Little
v.
396 U.
Jones
S.
v.
Mayer Co.,
(1968).
Railway
H.
554; may allegedly those against discriminated bring suit to test voting in changes covered units the substantive standard of directly either judicial or through review of the Attorney preclearance General’s Morris decision, Gressette, 432 U. S. 491 The cause of action granted today is of very different nature. It trigger does not enforcement provided scheme C. §§ §§ 1682, but entirely displaces that scheme in favor aof different approach.20
Congress decided in Title as it IX, had toVI, prohibit certain forms of by recipients discrimination of fed- eral funds. Where recipients acting those were under color of state law, individuals could obtain courts redress the federal for violation of prohibitions. these excepting post-Civil But, War dealing enactments with racial specified discrimination in these forms situations, of discrimination private entities not previously had subject been individual redress law, Congress reach decided to such discrimination creating remedy a new by relying but individuals, authority of the Federal to enforce Government terms under which provided. federal assistance would be *44 decided, At Department the time Allen was the of Justice in enforc ing Voting Rights provided any the by Act had not formal means which by Department an individual could initiate the change review of a affect ing voting by in an area covered Department Since the has officially urged private parties to it voting inform of changes law in areas. 28 CFR Reg. covered Fed. (1978); §§ 51.12-51.15 (1971). Education, Department Health, The provided of by Welfare has reg any may person file a complaint ulation written alleging discrimina tion in violation of Titles VI or IX days within of the occurrence of discrimination, investigation the and that after compliance, HEW shall seek formally informally, or shall complainant inform the writing that fur agency ther action is unwarranted. CFR (b), (c), §§ 80.7 86.71 respondents The federal represented have they would, the course, responsibility “of fulfill their under applicable regulations to con investigation petitioner’s duct administrative charges” should this Court affirm the decision below. Brief for Respondents Federal 54 n. 33. problem to the approach of this may wisdom Whatever choice, not to be discrimination, Congress’ it was private by this Court. overridden Powell, dissenting.
Mr. Justice under I White even Mr. Justice agree with no clear that prior decisions, standards our articulated from the here. It is evident private implied should be action opinion that dissenting in his history reviewed legislative through a action private intend create Congress did not It of 1972. also IX the Education Amendments Title enforcement the administrative deemed Congress clear that fully protect adequate create mechanism it did below from the courts mounting evidence rights. IX But as demonstrates, today decision of the Court suggests, can- past applied the recent analysis mode of we have powers. separation doctrine of squared not be with the judicial for the reappraise our standards The time has come to of action.1 implication private causes responsibility has Ill, Congress Art. alone Under courts. As lower federal jurisdiction of the determining the determine when also should Legislative Congress Branch, given causes of action private are to be parties demonstrate, statutes adopts. As countless legislation it Congress Rights 1964,2 Act of including Titles of the Civil a legislative actions is private creation of recognizes that chooses Congress it. When frequently function and exercises should not to civil federal courts provide remedy, may completely action” clear phrase “private cause of not have meaning. herein, right I used refer to the of a As the term is injuries party from caused another’s judicial to seek relief violation legal requirement. legislation Congress, enacted of a In the context statutory duty. requirement legal is a involved *45 relief); (Title II; preventive limited to 2 See S. C. 2000a-3 U. required). (g) (Title VII; preclearance (f), administrative 2000e—5 §§ not assume the legislative role of creating such remedy a thereby enlarge their jurisdiction. facts of
The this case illustrate the undesirability of this assumption by the Judicial Branch of legislative function. every Whether disappointed applicant a admission to college or university receiving federal right funds has the remedy civil-court under Title IX likely is to be a matter many interest of the thousands of rejected applicants. It certainly a question importance vast higher the entire educational community of this country. apart But quite from the interests the persons and affected, institutions respect for our system constitutional dictates the issue should have been resolved by the representatives elected Congress public after hearings, debate, legislative deci- sion. It is not question properly to be decided by relatively uninformed federal judges who are isolated from political process.
In recent history, the Court has tended to stray from the Ill Art. and separation-of-powers principle of juris- limited diction. I This, believe, evident from a review of the more haphazard less line of cases that led to our decision in Cort Ash, U. S. 66 “four analysis The factor” of that open case anis invitation to legislate federal courts to causes action not authorized by Congress. It is an analysis not faithful to constitutional principles and should rejected. Absent compelling most evidence of affirm- congressional ative intent, a federal court should not infer a private cause of action.
I of a implying action from regula- a federal tory statute has been an exceptional occurrence past in the history of A this Court. review those few where decisions step such a has been taken reveals in every almost special case explain historical circumstances that if not result, analysis. Court’s These suggest decisions that the doctrine of *46 732 today only represents not by applied the
implication lacks but also function, assumption legislative of judicial basis. precedential a principled
A
of actions
causes
implied private
of
origin
The
R. Co. v.
to Texas &
back
is said
date
courts
federal
Pacific
of
at
the facts
A close look
(1916).
U. S.
Rigsby,
indicates,
the law
state of
contemporary
that case and
of a
“inference
Rigsby’s reference to
however, that
connotation
different
carried
far
id.,
at
action,”
of
right
ante, at 689
quoted
passage
Court,
than the isolated
for de
presented
question
The narrow
10, might suggest.
n.
by the
defined
care
of
the standards
cision was whether
to a
applied
penal provisions
Safety Appliance Act’s
Federal
by an em
railroad
an interstate
brought against
action
tort
of his
the time
commerce at
in interstate
engaged
not
ployee
was not
courts
of the federal
jurisdiction
injury. The
from state court
removed
having
action
been
dispute,
.
corporation See
was a
the defendant
ground
n. 6
Co.,
R.
Chesapeake & O.
Moore v.
Tyson, 16 Pet.
regime
of
(1934). Under
Swift
the sub
to create
force,
the Court was free
(1842), then
to a common-law
liability applicable
stantive standards
practice
in federal court.
brought
negligence claim
care
standards of
determined
legislatively
reference to
judicial
negli
existence of
to establish the
expedient
common
was a
Action, 27
Private
Wrong and
Thayer, Public
gence. See
than
nothing more
Rigsby did
(1914).
Harv. L. Rev.
authority
be taken as
cannot
practice,
follow
action
Con
legislated
cause
judicial creation
215-216;
Co., supra,
Chesapeake & O. R.
Moore v.
gress.
Co.,
2d
York, N. & H. R.
206 F.
157-
H.
Jacobson v. New
curiam,
aff’d
347 U. S.
J.),
per
(CA1 1953) (Magruder, C.
For
years
almost 50
after Rigsby,
this Court recognized
an implied private cause of action in only one other statutory
context.3 Four decisions held that
provisions
various
Railway Labor
Act
1926 could be enforced in a federal
court. The case for implication
judicial
remedies was
*47
especially strong with respect
to this Act, as Congress had
repealed its predecessor, Title III of the Transportation Act
of 1920, after Pennsylvania R. Co. v. Railroad Labor Board,
72S.
and
(1923),
Pennsylvania Federation
Pennsyl
v.
Co.,
vania R.
A break in
pattern
in J.
occurred
I. Case
Borak,
Co. v.
377 U. S.
There
held that a private
party could maintain a
cause
action under § 14
(a)
Securities Exchange Act of
spite
Congress’ ex-
press creation
administrative mechanism for enforcing
I
statute.
find this decision both unprecedented6 and
of a
of action,
cause
n.
infra,
see
analytically
least
prob-
quite
lems are
different.
6None of the authorities
opinion
cited
supports the
Sola
result.
Electric Co. v.
Co.,
Electric
(1942),
U. S. 173
and Deitrick
Jefferson
Greaney, 309
(1940),
U. S. 190
held that federal
*49
could
law
limit
state-
law defense to a state-law cause of action.
Independence
Deckert v.
Shares
Corp.,
incomprehensible
judgment
in
ultimately
lies
rationale, which
sion’s
a neces-
provides
rules
proxy
of the
enforcement
“[p]rivate
at
S.,
377
action,”
U.
Commission
sary supplement
reg-
of
degree
determining
in
Congress,
fact that
ignores the
the Securities
covered
companies
imposed
ulation
enforcement
private
decided
already had
Act,
Exchange
how-
purposes,
present
unnecessary.
significant
More
was
the start
signaling
Borak, rather than
is the fact that
ever,
believe,
I
and,
singular
constitutes a
Court,
in this
a trend
of
statute.
regulatory
federal
of a
interpretation
aberrant
implication
upheld
has
Borak,
Court
this
Since
only
in
statutes
from
derived
of actions
causes
private
First,
circumstances.
limited sets
extremely
three
(1968);
409
U.
Mayer Co., 392
H.
S.
v.
in Jones
Alfred
(1969);
Park, Inc.,
229
396
Hunting
Little
v.
Sullivan
Inc.,
454
421 U. S.
Agency,
Railway Express
v.
Johnson
relief
seek
parties to
right of
recognized
(1975),
say
But
and 1982.
§§
of 42 U. S. C.
for violations
misleading,
is somewhat
of action
rights
“implied”
cases
these
expressly
were enacted
these
time
statutes
at the
Congress
Furthermore, as
actions.7
enforcement
referred
grounded on a statute
(1944), Enginemen, S.
Firemen &
U.
con-
of these cases
None
enforcement.
express means of
provided no
alterna-
where
in circumstances
private action
implication of a
doned the
suggest
Although
do not
I
available.
were
of enforcement
tive means
v.
Flood
date, cf.
overruling Borak
this late
consider
that we should
deci-
for this
precedential support
(1972),
the lack
Kuhn,
407 U. S.
beyond
of the case.
the facts
extension
strongly against
its
militates
sion
Chip
U.
(1977); Blue
Green,
462, 477
S.
Industries v.
Fe
Santa
Cf.
U. Drug Stores,
Stamps
Manor
Rights Act
1 of the Civil
from
1982 are derived
1981 and
§
Both
18 of
part
16 and
pertinent
§§
was re-enacted
which
provided:
Act
3 of the
Section
Rights Act of 1870.
Civil
cogni-
shall have . . .
States . . .
of the United
courts
district
“[T]he
persons
are
criminal, affecting
who
causes,
civil and
all
zance ...
section
rights
to them
first
any
secured
denied .
.
.
*50
the Railway Labor Act cases, Congress had provided no alter-
native means of asserting these rights. Thus, the Court was
presented with the choice between regarding these statutes
as precatory or recognizing some kind
judicial
proceeding.
Second, the Court in Allen v. State Board
Elections, U. S. 544
permitted
(1969),
private litigants to sue to enforce
the preclearance provisions of
5 of
§
the Voting Rights Act
of 1965. As the Court seems to concede, this decision was
reached without substantial
ante,
analysis,
and n.
690,
my
and in
view can be explained only in terms of this Court’s
special and traditional concern for safeguarding the electoral
process.8 In addition,
as
Mr.
Justice White
notes,
act ...
jurisdiction
. The
in civil and criminal
hereby
matters
conferred
on the district and circuit
courts
the United States shall be exercised
and enforced
conformity
with the laws of the
States,
United
so far as
such laws
carry
are suitable to
the same into effect;
but
all cases where
such laws are not adapted to
object,
or are
provisions
deficient in the
necessary to furnish suitable
punish
remedies and
offences
law, the
law,
common
changed
modified and
by the constitution and statutes of
the State wherein the court having jurisdiction of the cause
held,
...
so far as the same is not inconsistent with the Constitution and laws of
the United States, shall be extended
govern
said courts in the trial
and disposition of such cause . .
.
.” 14 Stat. 27.
Section 18 of the
Act made
applicable
section
16 of §
later
Subsequently
Act.
Congress, through
of1
Rights
Civil
ofAct
explicit
indicated
more
in even
terms
actions would be
prevent
available to
official interference with
rights
guaranteed by 1§
of the
Chapman
1866 Act. See
v.
Rights
Houston
Org., ante, at
Welfare
J., concurring).
627-628
(Powell,
Although one might conclude, in
light
Act,
the 1866 and 1870 Acts
provide
did not
merely permitted
actions but
federal courts to entertain state-law
affecting
actions
rights,
the denial
civil
equally
plausible reading of
Congress
those statutes is that
created a federal cause of action to enforce
1 of
Act.
the 1866
g.,
See,
Rhodes,
e.
v.
Williams
393 U. S.
(1968); Reynolds
Sims,
(1964);
B
It was against this background of almost invariable refusal
imply
private actions, absent a complete failure of alter-
native enforcement mechanisms and a clear expression of
legislative intent
to create such a
remedy,
Ash,
Cort v.
theOf inde- invite three The other intent. legislative expressly a statute whether Asking lawmaking. judicial pendent begs example, private party, aof in favor right a creates mere involved What issue. question right person's particular a but right, legal of a existence See right.13 to enforce the courts the power invoke be action would whether Determining supra. n. 1, legislative of a purposes” “underlying consistent the goals itself what decide for a court to permits scheme advanced. should goals those be, how scheme should Finally, 458 (1974). Rev. 454-455, Ford. L. Note, *53 simply right the federal parallels law looking to state that Con- consideration policy particular on a inquiry focuses to create a weighed deciding may have already gress action. to over- courts readily permits too analysis the Cort That Wheeler, 652 373 U. v. S. Wheeldin solely on federal law? based (1964); Bivens v. 426, 434 Borak, 377 U. S. v. (1963); J. I. Case Co. cf. (1971); Agents, U. S. 394-395 Federal Narcotics 403 Six Unknown S., 422 judgment).” U. at J., concurring in (Harlan, id., at 400 13 this in question-begging nature of attempts to avoid Ante, at issue. phrasing statute precise quiry by emphasizing the de with relevant failure to contend from its 689-693, n. 13. Aside g., see, e. v. perceived pattern, Calhoon to the do not conform cisions Board, Mediation (1964); v. National 134 Switchmen Harvey, 379 U. S. significance to gives (1943), approach undue Court’s 297 S. draftsmanship. legislative stylistic essentially differences
741
ride the decision of Congress not to create a private action
is demonstrated
conclusively by the flood of lower-court
decisions applying it. Although from the time Cort was de
cided until
today this Court consistently has turned back
attempts
to create private actions, see Chrysler Corp. v.
Brown, ante, p. 281; Santa Clara Pueblo v. Martinez, 436
U.
49S.
(1978); Piper v.
Industries, 430 U. S.
Chris-Craft
1 (1977), other federal courts have tended to proceed in
exactly the opposite direction.
In the four years since we
Cort,
decided
no less than 20
decisions
the Courts Appeals
implied
have
private actions from federal statutes. Local
714, Amalgamated Transit Union v. Greater Portland Transit
Dist., 589
1
F.
(CA1
2d
1978)
(§ 13 (c) of Urban Mass
Transportation Act of 1964); Bratton v. Shiffrin, 585 F. 2d
(CA7
223
1978) (§
(a)
of Federal Aviation Act of 1958),
cert. pending, No. 78-1398; Redington v. Touche
Co.,
Ross &
Loan Board, Bank 568 (CA6 F. 2d 478 1977) (§ 11 of (e) Federal Home Loan Bank Act); Wilson v. First Houston In vestment Corp., 566 F. 2d (CA5 1235 1978) (§ 206 of Invest- 742 New 77-1717; No. pending, cert. 1940), ofAct Advisers
ment App. D. C. Bloom, 183 S.U. v. Exchange, Inc. York Stock Act), Glass-Steagall of 21 and (1977) (§§ 16 736 2dF. 562 International Daniel v. (1978); 942 U. 435 S. denied, cert. 1977) (§ 17 (CA7 1223 Teamsters, 2dF. 561 Brotherhood of 439 grounds, other 1933), Act of rev’d of Securities (a) Andre, v. Federation Handicapped United (1979); 551 S.U. Act of Rehabilitation 504 1977) (§ (CA8 413 F. 2d 558 (CA3 2d 190 Workers, F. 556 Mine v. United Nedd 1973); cert. 1947), Act, Relations Management 302 of Labor 1977) (§ Academy v. Kipperman (1978); 1013 Life 434 U. S. denied, 3009); U. C. 1977) (39 (CA9 377 Co., F. 2d 554 Ins. 1977) (§ (CA2 2d 296 F. Nyquist, v. Kampmeier Transporta Regional Lloyd v. 1973); ofAct Rehabilitation McDaniel 1977) (same); (CA7 2d 1277 F. Authority, 548 tion (CA7 2dF. Argonne, 548 Chicago and University v. denied, cert. Act), 1977) (§ of Davis-Bacon 2d Co., 534 F. & Dempsey-Tegeler Hughes (1978); denied, 1934), cert. Act of Exchange (§ 6 Securities (CA9) each to believe reason It defies (1976). 429 U. S. mention absentmindedly forgot Congress statutes of these accelerating trend Indeed, action. intended an re-examine need to the decisions by these attests evidenced analysis. Cort II Cort articulated doctrine implication view, the my incomparably today engenders applied occasionally failing possibility than problems
greater only If intent. congressional unexpressed to divine obligation involved, our were statutory construction matter accu- more which criteria refined develop more be to might the unconstitution- “But intent. congressional rately reflect clear” made been has now pursued course ality of Cort. doctrine implication to abandon us compels 77-78 S.U. Tompkins, Co. v. Erie R.
As the above-cited 20 decisions the Appeals Courts illustrate, Cort allows the Judicial Branch to assume policymaking authority vested by the Constitution in the Legislative Branch. It also Congress invites to avoid resolu- tion of the often question controversial whether a regu- new latory statute should be enforced through private litigation. Rather than confronting the political hard choices involved, Congress is encouraged to shirk its constitutional obligation leave the issue to the courts to decide.14 When this happens, legislative the process public with its scrutiny and participation has been bypassed, with prejudice attendant everyone concerned. Because the courts are free to reach a result different from that which the normal play of political forces would have the produced, intended beneficiaries the legislation are unable to ensure full the protection measure of their needs may warrant. For the same reason, subject those to the legislative constraints are denied opportunity the forestall through political process potentially unnecessary and disruptive litigation. Moreover, public generally is denied the benefits that are derived from the making of important societal through choices open debate process. democratic
The
implication
Court’s
doctrine encourages, as
corollary
political
to the
default by
increase
Congress,
govern-
14Mr.
Justice RehNquist,
perhaps considering himself temporarily
by
position
bound
University
his
Regents
Bakke,
of California
U.
(1978)
418-421
(opinion
SteveNS,
J.), concurs in
Court’s
today.
decision
writing
But
briefly,
correctly
he
observes “that Con
gress,
during
period
least
of the enactment of the several Titles of
Rights
Civil
Act,
rely
tended to
large
to a
extent on the courts to
decide whether there
should be
right
of action, rather than
determining
question
this
itself,”
ante, at 718. It does not follow, how
ever, that
obliged
Court is
to indulge Congress in its
to con
refusal
questions.
front these hard
my
view,
very
reasons
by
advanced
RehNquist
why
Mr.
Justice
“this Court in the future should be ex
tremely reluctant
imply
a cause of action”
specific
absent
by
direction
Congress, ibid., apply
special
to this case with
force.
power
judiciary.
mental
exercised
dangers
the federal
posed
judicial
arrogation
right
general
to resolve
*56
throughout
societal conflicts have been
this
to
manifest
history.
Schlesinger
War,
its
v. Reservists to
Stop
418
208,
(1974);
Richardson,
U. S.
222
United States v.
166,
188-197 (1974) (Powell,
Eccles v.
J., concurring);
Peoples Bank,
A,
426,
(1948);
S.
Ashwander v. TV
“Our of government after a is, tripartite one, all, with having each branch certain defined functions dele- to it gated by the Constitution. While is em- ‘[i]t phatically the province duty and judicial depart- say Madison, ment is,’ Marbury what law v. Cranch is (1803), equally emphati- —and cally province exclusive of Congress only —the legislative formulate policies and programs mandate projects, but also to establish their relative for priority Nation. Once exercising delegated its Congress, powers, has decided the order priorities in a given it is for the area, Executive to administer the laws and courts to enforce them when enforcement is sought.
“Our appraisal individual of the wisdom or unwisdom particular a course consciously selected the Con- gress put to be process aside a interpreting statute. Once the meaning enactment discerned constitutionality its determined, judicial process
comes to an end. sit We do not committee of A of veto.” TV nor review, power are we vested with the Hill, 153, 194-195 (1978). 437 U. S. Co., Telephone See also United States v. New York 434 U. S. (“The principle 179 (1977) J., dissenting) (Stevens, jurisdiction .”).15 of limited federal is fundamental . . judiciary necessarily It is true that the federal exercises powers legislation, ap- substantial to construe when including, propriate, power prescribe substantive standards supplement power conduct that But this legislation. normally is exercised respect disputes over which already jurisdiction, court has and in which the existence *57 15 Frankfurter dangers Mr. Justice described these with characteristic eloquence:
“Disregard ‘judi- of inherent in limits the effective exercise of the Court’s may impair cial Power’ position organ . . . well the Court’s ultimate supreme ‘the range legal problems, Law Land’ in that vast strongly entangled popular often in feeling, on must which pronounce. authority possessed purse The Court’s of neither the nor — ultimately public rests on sustained confidence in its moral sword— feeling by sanction. Such must be complete nourished the Court’s detach- ment, appearance, political in fact in entanglements by and from and injecting abstention from political political itself into the clash of in forces Carr, S., (dissenting settlements.” Baker v. opinion). 369 U. at 267 practical judicial Alexander JBickelidentified the difficulties in exercise of governmental power: judicial process principle-prone principle-bound
“The is too has—it be, justification plays. explanation there is no role other for the it conditions, It deals, is also too from too case, remote case reality. narrow a slice of It is not accessible to all the interests varied any consequence. is, very prop- play great that are in decision of It erly, independent. difficulty controlling stages It passive. It has approaches problem. fast, lags; which it It a forward too or it rushes pace hardly just right. reasons, is, its ever seems For all these it a vast, changeable complex, society, a most instrument for the unsuitable policy.” Progress Supreme formation of Idea of Court and the (1970). Implication cause of action is established.16 of a
the asserted
significant
involves a
private
action,
contrast,
cause of
ad
step. By creating
private action,
a
court
ditional
a
of limited
jurisdiction necessarily
authority
its
extends
to embrace a dis
to resolve. Cf. Jacobson it
pute Congress
assigned
has not
York,
Co.,
N.
H.
New
H. & R.
(CA1 1953)
It is
implying
instructive
decisions
causes of action
cognizable by
those cases
have found
nonfederal causes
action
g.,
City
Co.,
federal court under 1331. E.
Smith v. Kansas
Title & Trust
747
contrary
runs
the established principle
juris
that “[t]he
diction of the
carefully
federal courts is
guarded against ex
pansion
judicial
interpretation
.
American Fire &
. .
Cas. Co. v.
341
Finn,
17
U. S.
and conflicts with
6,
(1951),
authority
Ill
Congress under Art.
to set the limits
jurisdiction.
Lockerty
Phillips,
v.
319
182
U. S.
(1943); Kline v. Burke Construction
260
Co.,
U. S. 226
(1922);
Sill,
Sheldon v.
8
441 (1850);
How.
United States v.
Nourse,
The facts of this case implication illustrate how right of action authorized Congress denigrates process. democratic Title IX a national embodies commit- ment to the elimination of sex, discrimination based on goal importance of which has been recognized repeatedly by our g., Mohammed, ante, decisions. e. Caban See, v. p. 380; Orr, Orr v. 440 (1979); 268 Gold- U. v. Califano farb, 430 U. S. Richardson, 199 Frontiero 411 v. U. S. (1977); (1973) 677 Reed ; Reed, 71 v. U. S. But Because Title IX applies to most of our of higher institutions Nation’s learning, also authority trenches on academic community govern an itself, authority the free exercise of which is critical vitality society. to the our University Regents Bakke, U. S. of California (1978) (opinion of Keyishian v. Board J.); Re- Powell, gents, Sweezy 385 U. S. (1967); Hampshire, v. New (1957) concurring in (Frankfurter, J., result); Murphy, Academic Constitutional Emerging Freedom —An Right, Law & Contemp. (1963); Academic Note, Prob. University Freedom and Regulation Federal Hiring, applicants Harv. (1979). Arming L. Rev. 879 frustrated power rejection inevitably or her challenge court his a constraining programs. have on will effect admissions litigation upon of expensive, burden vexatious institutions severely may well resources often are limited compel whose objectively emphasis qualifications measured academic *59 bring expense at the of more flexible admissions criteria that significant If a diversity richness and to academic life.18 such incursion into arena of to be it is polity made, is academic subject Legislative Branch, function of constitutional make this political process, as it to the checks of the to judgment.19 enforcing
Congress already has created mechanism in discrimina- gender-based mandate found Title IX against in fund-termination Congress, least the view of tion. At to ensure dis- power adequate conferred on HEW is that colleges Although regulation applied burdens of administrative through process insubstantial, IX not is at and universities Title are personal interests are least under the control of whose Government officials directly implicated subject congressional over and whose actions are sight. litigation, by subject contrast, Private no such checks. recognized implication have We other contexts that processes of action can exist to resolve cause frustrate those alternative disputes given may and, litigation today, the costs of dramati such federal cally by Santa legislation. revise balance of interests struck Green, 478-479; Chip Stamps S., Fe Industries v. 430 U. Blue Manor at v. Drug Stores, fully litiga S., applies U. at 739-744. That this concern tion under Title DC is borne out the facts of this case. Petitioner’s undergraduate grade-point average 3.17, in basic sciences was far below average University the 3.70 Chicago’s entering class, overall and college her medical admission test were in half of the scores the bottom applicant group. 2,000 applicants positions More than for the at Chicago qualifications petitioner. Furthermore, had better academic than petitioner’s age Chicago exceeded restrictions at both and Northwestern. prohibits only purposeful If IX discrimination such as would violate involved, the Constitution were state action a conclusion that for seems gone light holding respect of our Rights to Title "VTof the Civil University Regents Act of 1964 in Bakke, S., at of California J.); (opinion id., 284-287 Powell, BrenNan, (opinion 328-350 at JJ.), White, Marshall, petitioner’s then the Blackmun, chances age requirements proving Chicago the neutral used and North western are unlawful seem Yet infinitesimal. these schools have been forced to use their scarce resources to defend this suit three judicial levels of our system, light holding of the Court’s today they must contend proceedings. with at least one more round of *60 crimination in federally funded colleges and universities will not be countenanced. The position Govern- current ment notwithstanding,20 judicial overlapping and administra- tive enforcement of policies inevitably these will lead to con- flicts and our confusion; goal equal opportunity national for men and women, as well as the may academic community, A suffer. should court resolve all doubts kind self-aggrandizement, regardless of the temptation to lend its assistance to the of some furtherance remedial end deemed attractive.
Ill I believe the need sum, both to restrain courts that too readily have created action, causes of and to encourage Congress to obligation confront its policy to resolve crucial questions created legislation enacts, has become compelling. the analysis Because Cort suggested by has proved inadequate to I these problems, meet would start afresh. Henceforth, we should implication not condone the any private from action a federal statute absent the most compelling that Congress evidence in fact intended such an action to exist. Where a statutory scheme expressly provides for an alternative mechanism for enforcing rights I duties created, especially would reluctant permit ever to a federal court to volunteer its enforcement pur- services poses. today Because the Court is enlisting judi- the federal ciary just I enterprise, such an dissent. Respondents See Brief for 58-60, Federal n.