Corporate Counsel Daily, No en banc review of decision finding no implied right of action in Title IX for sex discrimination in employment, (Apr 9, 2025)

By Kathleen Kapusta, J.D.

Rather than creating a duplicative right of action for employees, Chief Judge Pryor explained that it created an alternative remedy by conditioning federal funding on compliance with its prohibition on sex discrimination in schools.

A majority of the active judges in the Eleventh Circuit voted against granting rehearing en banc of the court’s prior opinion finding no implied right of action in Title IX for sex discrimination in employment. In that decision, the panel explained that although 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 and a private right of action for retaliation for an employee’s complaint about discrimination against students, “it has never extended the implied private right of action under Title IX to claims of sex discrimination for employees of educational institutions.” While Chief Judge William Pryor, joined by Judge Luck, asserted that the panel in the prior decision faithfully applied Supreme Court precedent, Judge Rosenbaum, dissenting, wrote that “Our decision shows that when it comes to Title IX, we need some more education” (Joseph v. Board of Regents of the University System of Georgia, No. 23-11037 (11th Cir. Apr. 8, 2025)).

Private rights of action. In his opinion respecting the denial of rehearing en banc, Chief Judge Pryor noted that while Judge Rosenbaum, in dissent, chastised the panel opinion for failing to learn from the reversal of the Eleventh Circuit’s 2005 Jackson v. Birmingham Board of Education decision, her criticism “flunks her own tests.” Before reversing Jackson, he pointed out, the Supreme Court reversed the Eleventh Circuit’s 2001 Alexander v. Sandoval decision. In that decision, he noted, “the Supreme Court told us—in no uncertain terms—that the days of courts engineering ‘such remedies as are necessary to make effective the congressional purpose expressed by a statute’ are over, and ‘[h]aving sworn off the habit of venturing beyond Congress’s intent, “we must decline to imply private rights of action.”

Pryor also pointed out that employees of federally funded educational institutions have a private right of action for sex discrimination pursuant to Title VII. Further, the Supreme Court recognized an implied right of action for students who have suffered sex discrimination in violation of Title IX, which Congress later ratified, and Jackson interpreted Title IX to create a related implied right of action for retaliation when employees complain about sex discrimination against students. “But Title IX,” he emphasized, “does not provide a duplicative implied private right of action for sex discrimination against employees.”

Spending Clause legislation. Title IX, Pryor further noted, was enacted under the Spending Clause and in that context, the Supreme Court, in Sandoval, explained that “[t]he express provision of one method of enforcing a substantive rule suggests that Congress intended to preclude others.” For Spending Clause legislation, he observed, “the typical remedy for... noncompliance with federally imposed conditions is not a private cause of action... but rather action by the Federal Government to terminate funds.“

Spending Clause legislation, he explained works like a contract in that prospective recipients of federal dollars accept certain duties and consequences in exchange for the money—the revocation of those funds for noncompliance. “So even where Spending Clause legislation is phrased in terms of the ‘persons’ protected, the inclusion of a funding-based remedial scheme cautions against construing the statute to create other, implied remedies,” Chief Judge Pryor concluded.

Rather than impliedly creating a duplicative right of action for employees, Title IX, Pryor stated, creates an alternative remedy by conditioning federal funding on compliance with its prohibition of sex discrimination in schools. “But the dissent would have us believe that Congress—without ever saying as much—fashioned not just an ‘overlapping’ or alternative remedy for employment discrimination in schools, but one nearly identical to Title VII.”

“Our dissenting colleague,” he continued, “suggests that our panel opinion undermines the ‘overlapping’ remedies for sex discrimination that Congress designed. But that conclusion follows only if we accept her reading of Supreme Court precedents. Our Court has rejected that reading for all the reasons explained in the unanimous panel opinion.”

Rosenbaum dissent. In her dissenting opinion in which Judges Jill Pryor, Abudu, and Kidd joined, and Judge Jordan joined in part, Judge Rosenbaum noted that the Supreme Court, in its opinion reversing Jackson, emphasized that it had “consistently interpreted Title IX’s private cause of action broadly to encompass diverse forms of intentional sex discrimination.” Arguing that the Eleventh Circuit was repeating “our mistake from twenty-three years ago,” Rosenbaum asserted that “We decline to correct our panel’s recent holding that no public-school teacher can sue under Title IX for gender-based discrimination she faced. Our decision shows that when it comes to Title IX, we need some more education.” Further, she observed, every circuit that has considered whether a teacher may sue under Title IX has found they may.

Title IX, she argued, not only prohibits sex-based discrimination against any “person” in “any education program or activity” that receives federal monies, it provides two enforcement mechanisms: “the federal government may terminate funds if discrimination occurs, or victims may sue in court under Title IX’s Supreme Court-recognized implied cause of action (or both).” Contending that the panel opinion’s holding that Title IX “does not create an implied right of action for sex discrimination in employment,” is wrong, Judge Rosenbaum asserted that “none of the authorities it relies on support its holding. In fact, Supreme Court precedent belies the panel’s assertion that Title IX contains no implied cause of action against sex-based discrimination in education employment.”

Exceptional importance. Judge Rosenbaum also argued that the panel opinion raises a question of “exceptional importance.” Not only does it violate binding Supreme Court precedent, it usurps congressional policy-making authority. It also “concerns the scope of a cause of action at the heart of Congress’s intentions for Title IX, the principal tool for eliminating sex discrimination in our schools.”

“As I’ve noted, the Supreme Court has found that the text and legislative history of Title IX require the conclusion that Congress intended for the law to cover educational employees. Congress’s decision to provide employees with a private cause of action under Title IX was a policy judgment for Congress’s determination, not ours. Our job is to simply recognize Congress’s intent to allow employees to sue directly under Title IX.”

With Title IX, she wrote, “Congress sought to eradicate employment discrimination in our schools. The Supreme Court has recognized this fact. But the panel’s decision knee caps a critical tool to address this corrosive force, contradicting both the Supreme Court’s precedents and the intent of Congress.”

The case is No. 23-11037.

Judge: Per curiam.

Attorneys: Edward Daniel Buckley (Buckley Bala Wilson Mew) for MaChelle Joseph. Courtney C. Poole, Georgia Office of the Attorney General, for Board of Regents of the University System of Georgia. Ronald Machen, Jr. (Wilmer Cutler Pickering Hale & Dorr) for Georgia Tech Athletic Association.

Companies: Georgia Tech Athletic Association

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