By Gina McKlveen, Esq.
What do a former art professor and a prior head women’s basketball coach have in common?
According to a recent decision by the United States Court of Appeals for the Eleventh Circuit, the answer is that neither have a private right of action for sex discrimination in employment under Title IX of the Education Amendments of 1972.
The text of Title IX provides that “[n]o person . . . shall, on the basis of sex, be excluded from
participation in, be denied the benefits of, or be subjected to discrimination under any education program or activity receiving Federal financial assistance.” Education Amendments of 1972, Pub. L. No. 92-318, § 901, 86 Stat. 235, 373 (June 23, 1972). In the case of Joseph v. Bd. of Regents of the Univ. Sys. of Ga., involving Thomas Crowther, an art professor at Augusta University from 2006-2021, and MaChelle Joseph, the head women’s basketball coach at Georgia Tech from 2003-2019, the Eleventh Circuit considered the separate factual circumstances of each plaintiff, but addressed the common question of “whether Title IX provides an implied private right of action for sex discrimination in employment.” Id.
Before thoroughly analyzing this issue on appeal, Chief Judge William Pryor’s opinion provided background on each of the two complaints. Beginning with Crowther’s complaint, this action arose after several students accused him of sexual harassment, which led Augusta University to initiate an investigation that found he had “violated the University’s sexual harassment policy.” Id. As a result, the University then “suspended his employment for one semester” and later refused to “renew his contract for the 2021-2022 academic year” despite Crowther’s attempt to appeal this decision. Id. Thereafter, Crowther sued both the Board of Regents of the University System of Georgia and several officials, alleging “sex discrimination and retaliation under Title IX and other provisions of federal law.” Id. The Board and officials filed a motion to dismiss Crowther’s complaint. The district court granted the motion to dismiss against the officials, but denied the motion to dismiss against the Board, which raised the aforementioned appeal to the Eleventh Circuit.
In regard to Joseph’s complaint, this action resulted following a yearslong back-and-forth between Joseph, Georgia Tech’s Athletic Department leadership, and the women’s basketball team concerning Joseph’s claims related to disparities in funding and resources among the women’s and men’s basketball teams, followed by allegations against Joseph by her players and staff that she created a toxic environment that were found credible after an independent investigation, which ultimately ended with the athletic director firing Joseph in 2019. Joseph then filed sex discrimination and retaliation claims pursuant to Title VII with the Equal Employment Opportunity Commission. See id. After obtaining a right to sue letter, Joseph launched a complaint against the Board of Regents, the Georgia Tech Athletic Association, and several individuals. See id. Joseph’s complaint included “two claims of sex discrimination under Title IX,” “two claims of sex discrimination under Title VII,” and “one count each of retaliation under Title IX, Title VII, and the Georgia Whistleblower Act.” Id. Like Crowther’s complaint, the Board and other defendants moved to dismiss Joseph’s complaint. The district court dismissed Joseph’s claims of employment discrimination under Title IX as precluded by Title VII, dismissed her Title VII claims “insofar as they relied on a theory that Georgia Tech held her to a higher standard than her male colleagues,” and dismissed her claim against the Georgia Tech Athletic Association under the Whistleblower Act. Id. The Board and Association filed a summary judgment motion that was also granted by the district court. Subsequently, Joseph made the foregoing appeal.
In reviewing the issue presented, “whether the rights and remedies under Title VII preclude claims for employment discrimination under Title IX,” the Eleventh Circuit first looked at how other circuit courts have addressed this issue. Id. The Fifth and Seventh Circuits found plaintiffs would be precluded when seeking money damages and equitable relief under Title IX, respectively. See Lakoski v. James, 66 F.3d 751, 753 (5th Cir. 1995) and Waid v. Merrill Area Pub. Sch., 91 F.3d 857, 862 (7th Cir. 1996). The First, Second, Third, Fourth, and Tenth Circuits have found such claims are not precluded or are viable claims to make without specifically ruling on the issue of preclusion. See Lipsett v. Univ. of Puerto Rico, 864 F.2d 881, 896-97 (1st Cir. 1988); Vengalattore v. Cornell Univ., 36 F.4th 87, 92 (2d Cir. 2022); Doe v. Mercy Cath. Med. Ctr., 850 F.3d 545, 560 (3d Cir. 2017); Preston v. Virginia ex rel. New River Cmty. Coll., 31 F.3d 203, 206 (4th Cir. 1994); Hiatt v. Colo. Seminary, 858 F.3d 1307, 1316-17 (10th Cir. 2017).
Nevertheless, the Eleventh Circuit supported its ruling upon landmark Supreme Court precedent, in Alexander v. Sandoval, 532 U.S. 275, 286, 121 S. Ct. 1511, 149 L. Ed. 2d 517 (2001),which held express or implied, “private rights of action to enforce federal law must be created by Congress.” What does this mean? Well, when the legislature, in this case, Congress, enacts a federal statute, i.e. Title IX, that does not expressly provide for a right of action, then it is up to the judiciary, here a federal court, to interpret that statute as to whether Congress intended to create a private right and a private remedy. Furthermore, a court cannot, on its own, without a clear indication of congressional intent, create a private right or remedy. In fact, the Supreme Court has delivered a cautionary advisement to lower courts in subsequent cases when considering whether to imply private rights of action. See Gonzaga Univ. v. Doe, 536 U.S. 273, 283, 122 S. Ct. 2268, 153 L. Ed. 2d 309 (2002) and Cummings v. Premier Rehab Keller, PLLC, 596 U.S. 212, 142 S. Ct. 1562, 1569-70, 1576, 212 L. Ed. 2d 552 (2022). Thus, the Eleventh Circuit heeded this warning and proceeded to analyze Title IX with caution.
Looking at congressional intent, Judge Pryor observed, “Congress enacted Title IX under the Spending Clause and provided an express remedial scheme for withdrawing federal funding.” Joseph v. Bd. of Regents of the Univ. Sys. of Ga. In fact, the express remedy provided by most Spending Clause legislation is not a private right of action, but rather an action by the federal government to terminate funds. See Gonzaga Univ. v. Doe, 536 U.S. 273, 280. But for implied private rights of action under the Spending Clause the calculus is slightly different. Courts must determine whether an implied remedy is informed based on the operation of Spending Clause, which is conditioning an offer of federal funding on a promise by the recipient. See Cummings v. Premier Rehab Keller, PLLC, 596 U.S. 212, 142 S. Ct. 1562, 1569-70, 1570. In other words, Spending Clause remedies operate based on consent, like a contractual promise. If an institution receives federal funds, then it agrees to comply with federally imposed conditions. See id.
With that understanding, the Supreme Court has held that Title IX provides an implied right of action for students who complain of sex discrimination by schools that receive federal funds. See Cannon v. University of Chicago, 441 U.S. 677, 690 n.13, 692, 99 S. Ct. 1946, 60 L. Ed. 2d 560 (1979). The Supreme Court has also held that Title IX provides a private right of action for retaliation for an employee’s complaint about discrimination against students. See Jackson v. Birmingham Board of Education, 544 U.S. 167, 171, 125 S. Ct. 1497, 161 L. Ed. 2d 361 (2005). Moreover, the Supreme Court has found that Title IX prohibits employment discrimination. See N. Haven Bd. of Educ. v. Bell, 456 U.S. 512, 521, 535-36, 102 S. Ct. 1912, 72 L. Ed. 2d 299 (1982). But the Supreme Court “has never extended the implied private right of action under Title IX to claims of sex discrimination for employees of educational institutions,” so neither did the Eleventh Circuit. Joseph v. Bd. of Regents of the Univ. Sys. of Ga.
Judge Pryor carefully interpreted the text of Title IX in reaching this conclusion stating, “nothing about that language indicates congressional intent to provide a private right of action to employees of educational institutions” and the connection to a private right of action and remedy is “less obvious” for employees than for students. Rather, Judge Pryor relied on the legislative history of the 1972 amendments, “passed only three months apart,” as evidence of a clear “congressional intent to create a comprehensive antidiscrimination remedial scheme.” Id. That scheme is as follows: “Title VII creates an administrative process that requires claimants first to file a charge of employment discrimination with the Equal Employment Opportunity Commission and then obtain a right to sue letter from the Commission before filing a complaint in a federal court.” Id. Whereas, Title IX “empowers administrative agencies to condition federal funding on compliance with its anti-sex-discrimination mandate…[and] also provides an implied right of action for students…[but] do[es] not embrace a private right of action for employees.” Id. Absent expressions of congressional intent to create both a right and a remedy, the Eleventh Circuit held that “Title IX does not create an implied right of action for sex discrimination in
employment.” Id.
Ultimately, this decision deepens the split among the federal circuit courts with three courts now finding no private right of action and five courts in favor of the opposite. Unless the Supreme Court takes up this issue and makes a determinative ruling overturning the Eleventh Circuit’s decision, both Crowther and Joseph’s complaints are effectively dismissed.
Gina is a licensed attorney in Maryland, New York, and Pennsylvania. Her practice and
experience ranges from handling civil and criminal domestic violence cases, involvement in
personal injury and product liability lawsuits, and instruction in the areas of sports,
entertainment, and art law. She is a first-generation law school graduate and alumna of The
George Washington University Law School.
