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The Court at the Olympics—A Commentary by Linda Greenhouse ’78 MSL

The following commentary was posted on newyorktimes.com on August 8, 2012.

The Court at the Olympics
By Linda Greenhouse ’78 MSL

Many people are celebrating the achievements of American women at the London Olympics, where women exceed men in the number of athletes on the United States team and have walked away with an impressive number of gold medals. And many have noted the connection between the women's historic success and the 40th anniversary of Title IX, which President Richard M. Nixon signed into law on June 23, 1972.

There's another player that deserves some recognition at this celebratory moment: the Supreme Court.

By endorsing a broad interpretation of Title IX at crucial moments over the years, the court has played a critical role in making that law the powerful force for women's advancement (most famously in athletics, but not limited to the playing field) that it is today.

But before giving the court a gold medal and calling it a day, consider this: if another rights-creating statute like Title IX should ever come along again - a big "if," admittedly - the recent direction of the Supreme Court's jurisprudence makes it highly unlikely that the court would play a remotely similar role.

So as the 2012 games pass into the record books, I'd like both to acknowledge the court's contribution and offer a cautionary note for the future.

Title IX of the Education Amendments of 1972 provides that "no person in the United States shall, on the basis of sex, be excluded from participation in, be denied the benefits of, or be subjected to discrimination under any educational program or activity receiving federal financial assistance."

That's a lot of words that leave quite a few important questions unanswered. For example: what happens if an "educational program or activity" - a school, college, or university - violates the law? The only remedy that Title IX provides, in a separate section, is cutting off the federal money - an unlikely bureaucratic response to a violation that might be limited to one or a relative handful of students.

The Supreme Court addressed this question in 1979 and came up with an answer that saved Title IX from sinking into a bureaucratic morass. In a 6-to-3 decision, Cannon v. University of Chicago, the court held that even though Congress had not said so explicitly, the statute in context implied the right to bring a private lawsuit against the offending institution.

The plaintiff in that case, Geraldine Cannon, was a 39-year-old woman whose application to medical school ran up against a policy of refusing to admit older students. She argued that this policy had the effect of discriminating against women, who were more likely than men to defer medical school while raising a family. This effect violated Title IX, she argued. The discriminatory effect was conceded and was not at issue in the case. Rather, the question for the court was whether the university was correct in arguing that Title IX did not give Ms. Cannon the right to bring her lawsuit.

Examining the history of Title IX's enactment - remember, this was before Justice Antonin Scalia arrived to make legislative history an all-but-forbidden tool of statutory interpretation - Justice John Paul Stevens concluded that "the history of Title IX rather plainly indicates that Congress intended to create such a remedy." He noted further that the Department of Health, Education and Welfare viewed private enforcement as appropriate and compatible with the department's role in administering the statute. That view was "unquestionably correct," Justice Stevens said.

A dissenting opinion by Justice Lewis F. Powell Jr. raised a red flag about the Supreme Court's practice of reading private rights into statutes that were silent on the matter. "The mode of analysis we have applied in the recent past cannot be squared with the doctrine of the separation of powers," Justice Powell wrote. But he spoke only for himself, and the doctrine of "implied private rights of action" appeared as firmly entrenched at the court as ever - indeed, enhanced by the majority opinion.

A later Supreme Court decision addressed the question of whether a private Title IX plaintiff could win monetary damages, not simply an injunction ordering the institution to stop the offending behavior. The court's answer was yes. In this case, Franklin v. Gwinnett County Public Schools, a 10th grade student sought damages against a teacher for sexual harassment. All nine justices said damages were available under Title IX.

Justice Scalia, joined by Chief Justice William H. Rehnquist and Justice Clarence Thomas, wrote a separate concurring opinion. The court "perhaps ought to abandon the notion of implied causes of action entirely," Justice Scalia said. But noting that Congress, in a 1986 statute, had implicitly acknowledged that damages were an available remedy for a Title IX violation, Justice Scalia said it was "too late in the day" to use this case for revisiting the fundamental issue of the right to be in court in the first place.

Title IX's administrative, judicial, and political history is complex, and any compressed version risks oversimplifying. The Supreme Court has not always gotten it right. For example, in a 1984 decision, Grove City College v. Bell, the court considered what it meant for the statute to cover educational institutions "receiving federal financial assistance" and decided unanimously that Title IX applied only to the particular federally assisted program and not to the entire institution. Congress promptly reversed that crippling determination in the Civil Rights Restoration Act of 1988.

But the real challenge to Title IXs of the future comes from the court's manifest dislike of enabling people to go to court. In a 2001 decision, Alexander v. Sandoval, Justice Scalia finally assembled a working majority to take a scalpel to judicially implied rights of action. The case concerned not Title IX, but a close relative, Title VI of the Civil Rights Act of 1964, which bars discrimination on the basis of race or national origin in educational programs receiving federal financial assistance. Whether Title VI permitted private enforcement actions had been contested for years, and the court's precedents offered a sliver of ambiguity that Justice Scalia - aided by Chief Justice Rehnquist and Justices Thomas, Sandra Day O'Connor and Anthony M. Kennedy - was able to run with.

The case was a challenge to an Alabama law making English the state's official language. The plaintiff argued that this law had a discriminatory impact that violated Title VI. Writing for a 5-to-4 majority, Justice Scalia said that the court's precedents had found an implied right of action under Title VI only in cases of intentional discrimination. Since the challenge to the language law alleged only a disparate impact on non-English speakers, and not an intent to discriminate against them, he concluded that the precedents didn't apply and that there was no private right to sue. Using the phrase ancien régime to refer to the old days when the court was willing to find private rights of action, Justice Scalia said, "Having sworn off the habit of venturing beyond Congress's intent, we will not accept respondents' invitation to have one last drink." The decision, Justice Stevens objected in dissent, was "unfounded by our precedent and hostile to decades of settled expectations."

By looking to history, I don't mean to suggest that the courts have spoken the last word on Title IX. Far from it. On Tuesday of this week, a panel of the United States Court of Appeals for the Second Circuit, in New York, rejected an appeal by Quinnipiac University from a Federal District Court order to provide more opportunities for women in its varsity sports program. The suit had been brought in 2009 by five female volleyball players and their coach after the university, in Hamden, Conn., announced that it was eliminating varsity women's volleyball.

Quinnipiac argued in its appeal that the 3.62 percent disparity between the percentage of women on campus and the percentage of varsity positions available to them was too small to justify finding a Title IX violation. It also argued that the district court had mistakenly refused to count as varsity athletes the 30 women on a competitive cheerleading team that was to be formed as a replacement for varsity volleyball.

The three-judge appeals court panel rejected both arguments, Judge Reena Raggi noting dryly that the cheerleading team "did not compete in circumstances indicative of varsity sports." The court concluded: "We reject Quinnipiac's challenge to the district court's finding that the school engaged in sex discrimination in violation of Title IX."

Maybe some Quinnipiac women will make it to the Olympics someday. Who knows? Clearly, Title IX has staying power and it has teeth, and for that we can thank - among others - the Supreme Court. Just as clearly, when it comes to the court, we can't take our eyes off the ball.