Judy Lieberman v. The University of Chicago

660 F.2d 1185

• Court: Court of Appeals for the Seventh Circuit
• Decided: November 23, 1981
• Docket: 80-2549
• Status: Published

Opinions

WILLIAM J. CAMPBELL, Senior District Judge.

Plaintiff, Judy Lieberman, filed this lawsuit against the University of Chicago, its medical school (The Pritzker School of Medicine), the Dean of Students of the Division of Biological Sciences, and the Medical School Admissions Committee, claiming that she was denied admission to the medical school as a result of sexual discrimination in violation of Title IX of the Education Amendments of 1972, 20 U.S.C. § 1681(a).¹ In her complaint, plaintiff sought declaratory and injunctive relief as well as compensatory and punitive damages. Defendants’ answer admits that the University of Chicago and its medical school receive federal financial assistance, but denies the allegations of discrimination.

Plaintiff had applied for admission to the 1977 entering class at the Pritzker School of Medicine. At that time she lived in Oak Park, Illinois with her husband and desired to remain in the Chicago area. Although placed on the “waiting list” at Pritzker, she was never offered admission and eventually accepted a place in the 1977 entering class at Harvard Medical School.² The plaintiff seeks compensatory damages for, inter alia, her moving expenses, pain and suffering, and loss of consortium.

. The defendants moved for and obtained summary judgment. The District Court concluded that, based on the plaintiff’s admitted intention to complete her medical education at Harvard, the request for injunctive relief was moot. The plaintiff does not attack that decision on appeal. However, .the court also determined that the prayer for declaratory relief was moot, and that, as a matter of law, Title IX does not provide a damage remedy. The plaintiff appeals both of those decisions.

The issue of whether Title IX provides a damages remedy is conceded by the parties to be a question of first impression. The District Court based its decision on Cannon v. University of Chicago, 441 U.S. 677, 99 S.Ct. 1946, 60 L.Ed.2d 560 (1979), (hereafter Cannon I) and both sides argue that case as compelling support for their positions. In Cannon I, the court held that Title IX contains an implied private right of action for an individual injured by a violation of 20 U.S.C. § 1681(a), and found injunctive relief appropriate. The question whether the plaintiff was entitled to damages was not addressed.³ The Supreme Court has stated that:

the question whether a litigant has a “cause of action” is analytically distinct and prior to the question of what relief, if any, a litigant may be entitled to receive.⁴ Davis v. Passman, 442 U.S. 228, 99 S.Ct. 2264, 2274, 60 L.Ed.2d 846 (1979).

Therefore, while Cannon I is certainly an important source of guidance for the issue before this court, we do not perceive it as dispositive of the question presented.

The exhaustive analysis of the legislative history of Title IX contained in Cannon I provides a foundation for our inquiry here. The legislation had two objects, to avoid the use of federal funds to support discrimination and to provide individual citizens effective protection against such practices, Cannon I, 99 S.Ct. at 1961. Title IX was intended by Congress to be interpreted and applied as Title VI, upon which it was modeled,⁵ Cannon I, 99 S.Ct. at 1957. Based on that premise this Court recently held, after a thorough analysis, that § 1681(a) only prohibits intentional discriminatory acts, Cannon v. University of Chicago, 648 F.2d 1104 (7th Cir., 1981) (hereafter Cannon II).

Our analysis of Title IX proceeds with the observation that it was part of a bill designed to assist institutions of higher education adjust to a situation of “acute financial distress,” 2 U.S.Code Cong. & Admin. News 1972, pp. 2462, 2463. The legislation increased federal funding of higher education, both public and private, by expanding existing programs and initiating others, Ibid. Thus, Title IX, as an integral part of this legislative scheme,⁶ must be deemed an exercise of Congress’ Spending Power, that is, the imposition of the statutory prohibition is justified by the expenditure of federal funds, see Cannon I, 99 S.Ct. at 1963.

In Pennhurst State School and Hospital v. Halderman, 451 U.S. 1, 101 S.Ct. 1531, 67 L.Ed.2d 694 (1981), the Court provided guidelines for construing implied rights and remedies in the context of funding legislation:

.... [Legislation enacted pursuant to the Spending Power is much in the nature of a contract: in return for federal funds, the States agree to comply with federally imposed conditions. The legitimacy of Congress’ power to legislate under the Spending Power thus rests on whether the State voluntarily and knowingly accepts the terms of the “contract.” [citations omitted] 101 S.Ct. at 1539.

In order to ensure a “meeting of the minds,” the conditions to be imposed by Congress must be stated in unambiguous terms. For that reason, the Court in Pennhurst declined to impose certain obligations on the defendants (and create concomitant rights to enforcement for the plaintiffs) despite suggestive language in the legislation. The Court buttressed its decision by noting that it would be inconsistent with the legislative intent of assisting the defendants to fund certain programs to impose additional financial obligations on them.

Both Title IX and its legislative history are silent as to the existence of a damage remedy for sexual discrimination. However, appellant argues that it is a small step from the implied private cause of action created in Cannon I to an implied remedy in damages. But the decision in Cannon I did not significantly alter the conditions upon which the recipients accepted federal funds. The injunctive relief authorized in Cannon I merely permits the courts to require the institutions to comply with one of the unambiguous terms of the agreement. While the Court did expand the class of plaintiffs who could enforce the “contract,” the remedy created did not impose any additional burdens on the recipients of the funds.⁷

However, the implication of a damages remedy would impose a potentially massive financial liability upon the institutions whose “acute financial distress” triggered the legislation.⁸ Theoretically, this liability could exceed the amount of the federal funds received. In any event, this potential liability would be a significant factor which the recipients would need to consider before it could be said that they had exercised their choice “knowingly, cognizant of the consequences of their participation,” Pennhurst, 101 S.Ct. at 1540. Therefore, as a matter of statutory construction, we must assume that if Congress had intended to create a remedy for damages it would have done so explicitly.⁹

Appellant argues that the implication of a damages remedy would create an extremely effective means of enforcing § 1681. However, as noted previously, we do not perceive that remedy as entirely consistent with the legislative purpose. Furthermore, in light of the implied private cause of action for injunctive relief authorized by Cannon I, coupled with the provision for an award of attorneys’ fees contained in 42 U.S.C. § 1988, aggrieved individuals have at least one effective means of enforcement. 20 U.S.C. § 1682 also provides means for federal administrative enforcement. Therefore, based upon the considerations discussed above, we consider it unwise to imply an additional remedy. If a damages remedy is to be created, it should be fashioned by Congress and not by the Courts, thus providing the institutions with ample notice and an opportunity to reconsider their acceptance of federal aid.¹⁰

As to the request for declaratory relief, we agree with the District Court that that issue is moot, see Hansen v. Ahlgrimm, 520 F.2d 768 (7th Cir. 1975).

For the above-stated reasons, the judgment of the District Court is affirmed.

1 . The complaint originally included a claim under 42 U.S.C. § 1983, but that claim was subsequently dismissed on plaintiffs motion.

2 . Plaintiff was offered admission to Harvard, the joint Harvard-MIT program, Albert Einstein, Northwestern University, Rush-Presbyterian-St. Luke’s, and the University of Illinois. New York University, Cornell, and the University of Pennsylvania rejected her application. The University of Chicago and Yale placed her on the waiting list, although she eventually withdrew her application to Yale.

3 . The only mention of damages in Cannon I is a tangential reference in footnote 10, see footnote 7, infra.

4 . While the Supreme Court has made it clear that the issue of an implied remedy is distinct from the issue of an implied cause of action, guidance beyond that point is conflicting. It is agreed that the analysis required is one of statutory construction, however, there is authority that where a statute expressly provides a particular remedy it is improper to imply the existence of other remedies, Transamerica Mortg. Advisors, Inc. v. Lewis, 444 U.S. 11, 100 S.Ct. 242, 247, 62 L.Ed.2d 146 (1979) citing inter alia, Botany Mills v. United States, 278 U.S. 282, 289, 49 S.Ct. 129, 132, 73 L.Ed. 379 (1929); Securities Protection Investment Corp. v. Barbour, 421 U.S. 412, 419, 95 S.Ct. 1733, 1738, 44 L.Ed.2d 263 (1975); while on the other hand the Court has stated that “the existence of a statutory right implies the existence of all necessary and appropriate remedies,” Transamerica, 100 S.Ct. at 252, (White, J., dissenting) quoting Sullivan v. Little Hunting Park, Inc., 396 U.S. 229, 239, 90 S.Ct. 400, 405, 24 L.Ed.2d 386 (1969). We believe that the result in the case sub judice is mandated by the analysis formulated in Pennhurst State School and Hospital v. Halderman, 451 U.S. 1, 101 S.Ct. 1531, 67 L.Ed.2d 694 (1981). Therefore, we do not deem it necessary to attempt a resolution of the apparent inconsistency.

5 . The issue as to whether damages are available under Title VI is currently unresolved, see Guardian Association v. Civil Service Commission, 633 F.2d 232 (2nd Cir. 1980).

6 . The enactment of Title IX also amended certain provisions of The Civil Rights Act of 1964, 42 U.S.C. §§ 2000c and 2000h and the Fair Labor Standards Act of 1938, 29 U.S.C. §§ 203 and 213, see, 1 U.S.Code Cong. & Admin.News 1972, p. 447. However, the plaintiff has not alleged a claim under any of those provisions. Therefore, we do not address' them and our discussion of the Congressional intent and legislative history of Title IX is not intended to relate to those amendments.

7 . The Court in Cannon I did refer to damages in a footnote quoting Texas & Pacific R. Co. v. Rigsby, 241 U.S. 33, 40, 36 S.Ct. 482, 484, 60 L.Ed. 874 (1916):

“A disregard of the command of the statute is a wrongful act, and where it results in damage to one of the class for whose especial benefit the statute was enacted, the right to recover the damages from the party in default is implied, according to a doctrine of the common law ...”

However, the legislation involved in that case, The Federal Safety Appliance Acts, was enacted pursuant to the Commerce Clause and subject to different considerations regarding the implication of a damages remedy. Therefore, we do not consider our decision herein to be inconsistent with that holding.

8 . Appellant, who mitigated her damages to the extent that she accepted admission to another medical school of equal standing, seeks approximately $350,000.

9 . We decide this case solely as a matter of statutory construction and do not address the issue of the limitations on Congress’ power to impose conditions on private parties or the States pursuant to the spending power, see Pennhurst, 100 S.Ct. at 1540, footnote 13.

10 . Because we conclude that a damages remedy is not presently available under Title IX, we need not address appellees’ argument that appellant is not entitled to damages because of her failure to mitigate them.