THOMAS, J., DISSENTING
JACKSON V. BIRMINGHAM BD. OF ED.
544 U. S. ____ (2005)
SUPREME COURT OF THE UNITED STATES
NO. 02-1672
RODERICK JACKSON, PETITIONER
v. BIRMINGHAM
BOARD OF EDUCATION
on writ of certiorari to the united states court of
appeals for the eleventh circuit
[March 29, 2005]
Justice Thomas, with whom The
Chief Justice, Justice Scalia, and Justice Kennedy join,
dissenting.
The Court holds that the private
right of action under Title IX of the Education Amendments of 1972,
for sex discrimination that it implied in
Cannon v.
University of Chicago, 441 U. S. 677 (1979),
extends to claims of retaliation. Its holding is contrary to the
plain terms of Title IX, because retaliatory conduct is not
discrimination on the basis of sex. Moreover, we require Congress
to speak unambiguously in imposing conditions on funding recipients
through its spending power. And, in cases in which a party asserts
that a cause of action should be implied, we require that the
statute itself evince a plain intent to provide such a cause of
action. Section 901 of Title IX meets none of these requirements. I
therefore respectfully dissent.
I
Title IX provides education
funding to States, subject to §901’s condition that “[n]o 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 education program or activity receiving
Federal financial assistance.” 20 U. S. C. §1681(a). Section
901 does not refer to retaliation. Consequently, the statute
prohibits such conduct only if it falls within §901’s prohibition
against discrimination “on the basis of sex.” It does not.
A claim of retaliation is not a
claim of discrimination on the basis of sex. In the context of
§901, the natural meaning of the phrase “on the basis of sex” is on
the basis of the plaintiff’s sex, not the sex of some other person.
See
Leocal v.
Ashcroft, 543 U. S. ___, ___ (2004)
(slip op., at 7) (“When interpreting a statute we must give words
their ordinary or natural meaning” (internal quotation marks
omitted)). For example, suppose a sexist air traffic controller
withheld landing permission for a plane because the pilot was a
woman. While the sex discrimination against the female pilot no
doubt adversely impacted male passengers aboard that plane, one
would never say that they were discriminated against “on the basis
of sex” by the controller’s action.
Congress’ usage of the phrase “on the basis of
sex” confirms this commonsense conclusion. Even within Title VII of
the Civil Rights Act of 1964 itself, Congress used the phrase “on
the basis of sex” as a shorthand for discrimination “on the basis
of such individual’s sex.” Specifically, in ensuring that Title VII
reached discrimination because of pregnancy, Congress provided that
“[t]he terms ‘because of sex’ or ‘on the basis of sex’ include, but
are not limited to, because of or on the basis of pregnancy,
childbirth or related medical conditions.” 42 U. S. C.
§2000e(k); cf.
California Fed. Sav. & Loan Assn. v.
Guerra, 479
U. S. 272, 277 (1987) (describing how Congress amended Title
VII to specify that sex discrimination included discrimination on
the basis of pregnancy). The reference to “on the basis of sex” in
this provision must refer to Title VII’s prohibition on
discrimination “because of such individual’s … sex,” suggesting
that Congress used the phrases interchangeably. §2000e–2(a)(1).
After all, Title VII’s general prohibition against discriminatory
employer practices does not use “[t]he terms ‘because of sex’ or
‘on the basis of sex.’ ” It uses only the phrase “because of
such individual’s … sex.”
Ibid.
This Court has also consistently used the
phrase “on the basis of sex” as a shorthand for on the basis of the
claimant’s sex. See,
e.g.,
United States v.
Burke, 504
U. S. 229, 239 (1992);
Meritor Savings Bank, FSB v.
Vinson, 477
U. S. 57, 64 (1986). Thus, for a disparate-treatment claim to
be a claim of discrimination on the basis of sex, the claimant’s
sex must have “actually played a role in [the decisionmaking]
process and had a determinative influence on the outcome,”
Hazen Paper Co. v.
Biggins, 507 U. S. 604, 610
(1993). Cf.
Teamsters v.
United States, 431 U. S. 324, 335, n.
15 (1977) (“ ‘Disparate treatment’ … is the most easily
understood type of discrimination. The employer simply treats some
people less favorably than others because of their race, color,
religion, sex, or [other protected trait]”).
Jackson’s assertion that the Birmingham Board
of Educaton (Board) retaliated against him fails to allege sex
discrimination in this sense. Jackson does not claim that his own
sex played any role, let alone a decisive or predominant one, in
the decision to relieve him of his position. Instead, he avers that
he complained to his supervisor about sex discrimination against
the girls’ basketball team and that, sometime subsequent to his
complaints, he lost his coaching position. App. 10–11. At best,
then, he alleges discrimination “on the basis of sex” founded on
the attenuated connection between the supposed adverse treatment
and the sex of others. Because Jackson’s claim for retaliation is
not a claim that his sex played a role in his adverse treatment,
the statute’s plain terms do not encompass it.
Jackson’s lawsuit therefore differs
fundamentally from other examples of sex discrimination, like
sexual harassment.
Ante, at 5. A victim of sexual
harassment suffers discrimination because of her own sex, not
someone else’s. Cases in which this Court has held that §901
reaches claims of vicarious liability for sexual harassment are
therefore inapposite here. See,
e.g.,
Davis v.
Monroe County Bd. of Ed., 526 U. S. 629, 641–649
(1999);
Gebser v.
Lago Vista Independent School
Dist., 524 U.
S. 274, 277 (1998);
Franklin v.
Gwinnett County
Public Schools, 503 U. S. 60, 75 (1992).
In fact, virtually every case in which this Court has addressed
Title IX concerned a claimant who sought to recover for
discrimination because of her own sex.
Davis,
supra, at 633–635;
National Collegiate Athletic
Assn. v.
Smith, 525 U. S. 459, 462
(1999);
Gebser,
supra, at 277–279;
Franklin,
supra, at 63–64;
Mississippi Univ.
for Women v.
Hogan, 458 U. S. 718, 721
(1982);
North Haven Bd. of Ed. v.
Bell, 456 U. S. 512, 517–518
(1982);
Cannon, 441 U. S., at 680. Again, Jackson makes no
such claim.
Moreover, Jackson’s retaliation claim lacks
the connection to actual sex discrimination that the statute
requires. Jackson claims that he suffered reprisal because he
complained about sex discrimination, not that the sex
discrimination underlying his complaint occurred. This feature of
Jackson’s complaint is not surprising, since a retaliation claimant
need not prove that the complained-of sex discrimination happened.
Although this Court has never addressed the question, no Court of
Appeals requires a complainant to show more than that he had a
reasonable, good-faith belief that discrimination occurred to
prevail on a retaliation claim.[
Footnote 1] Retaliation therefore cannot be said to be
discrimination on the basis of anyone’s sex, because a retaliation
claim may succeed where no sex discrimination ever took place.
The majority ignores these fundamental
characteristics of retaliation claims. Its sole justification for
holding that Jackson has suffered sex discrimination is its
statement that “retaliation is discrimination ‘on the basis of sex’
because it is an intentional response to the nature of the
complaint: an allegation of sex discrimination.”
Ante, at
4.[
Footnote 2] But the
sex-based topic of the complaint cannot overcome the fact that the
retaliation is not based on anyone’s sex, much less the
complainer’s sex. For example, if a coach complains to school
officials about the dismantling of the men’s swimming team, which
he honestly and reasonably, but incorrectly, believes is occurring
because of the sex of the team, and he is fired, he may prevail.
Yet, he would not have been discriminated against on the basis of
his sex, for his own sex played no role, and the men’s swimming
team over which he expressed concern also suffered no
discrimination on the basis of sex. In short, no discrimination on
the basis of sex has occurred.
At bottom, and petitioner as much as concedes,
retaliation is a claim that aids in enforcing another separate and
distinct right. Brief for Petitioner 13 (noting the relationship
retaliation bears to “primary discrimination”). In other contexts,
this Court has recognized that protection from retaliation is
separate from direct protection of the primary right and serves as
a prophylactic measure to guard the primary right. See
Crawford-El v.
Britton, 523 U. S. 574, 588, n.
10 (1998) (“The reason why such retaliation offends the
Constitution is that it threatens to inhibit the exercise of the
protected right”).[
Footnote 3]
As we explained with regard to Title VII’s retaliation prohibition,
“a primary purpose of antiretaliation provisions” is “[m]aintaining
unfettered access to statutory remedial mechanisms.”
Robinson v.
Shell Oil Co., 519 U. S. 337, 346
(1997). To describe retaliation as discrimination on the basis of
sex is to conflate the enforcement mechanism with the right itself,
something for which the statute’s text provides no warrant.
Moreover, that the text of Title IX does not
mention retaliation is significant. By contrast to Title IX,
Congress enacted a separate provision in Title VII to address
retaliation, in addition to its general prohibition on
discrimination. §2000e–3(a). Congress’ failure to include similar
text in Title IX shows that it did not authorize private
retaliation actions. This difference cannot be dismissed, as the
majority suggests, on the ground that Title VII is a more specific
statute in which Congress proscribed particular practices, as
opposed to the general prohibition here.
Ante, at 6. The
fact that Congress created those specific prohibitions in Title VII
is evidence that it intended to preclude courts from implying
similar specific prohibitions in Title IX.
Even apart from Title VII, Congress expressly
prohibited retaliation in other discrimination statutes. See,
e.g., 42 U. S. C. §12203(a) (Americans with
Disabilities Act of 1990); 29 U. S. C. §623(d) (Age
Discrimination in Employment Act of 1967). If a prohibition on
“discrimination” plainly encompasses retaliation, the explicit
reference to it in these statutes, as well as in Title VII, would
be superfluous—a result we eschew in statutory interpretation. The
better explanation is that when Congress intends to include a
prohibition against retaliation in a statute, it does so. See
Central Bank of Denver, N. A. v.
First Interstate Bank
of Denver, N. A., 511 U. S. 164, 176–177
(1994). Its failure to do so in §901 is therefore telling.
II
The Court’s holding is also
inconsistent with two lines of this Court’s precedent: Our rule
that Congress must speak with a clear voice when it imposes
liability on the States through its spending power and our refusal
to imply a cause of action when Congress’ intent to create a right
or a remedy is not evident.
A
As the majority acknowledges,
Congress enacted Title IX pursuant to its spending power.
Ante, at 11 (citing
Davis, 526 U. S., at 640;
Gebser, 524 U. S., at 287;
Franklin, 503 U. S.,
at 74–75, and n. 8 (1992)); U. S. Const., Art. 1, §8, cl. 1. This
Court has repeatedly held that the obligations Congress imposes on
States in spending power legislation must be clear. Such
legislation is “in the nature of a contract” and funding
recipients’ acceptance of the terms of that contract must be
“voluntar[y] and knowin[g].”
Pennhurst State School and
Hospital v.
Halderman, 451 U. S. 1, 17 (1981);
see also
Barnes v.
Gorman, 536 U. S. 181, 186
(2002). For their acceptance to be voluntary and knowing, funding
recipients must “have notice of their potential liability.”
Davis, 526 U. S., at 641. Thus, “[i]n interpreting
language in spending legislation, we … ‘insis[t] that Congress
speak with a clear voice,’ ”
id., at 640 (quoting
Pennhurst, 451 U. S., at 17), and a condition must be
imposed “unambiguously,”
ibid.;
Gonzaga Univ. v.
Doe, 536 U.
S. 273, 280 (2002);
Barnes,
supra, at
186.
The Court’s holding casts aside
this principle. As I have explained,
supra, at 2–7, the
statute’s plain terms do not authorize claims of retaliation. The
same analysis shows that, at the least, the statute does not
clearly authorize retaliation claims. The majority points out that
the statute does not say: “[N]o person shall be subjected to
discrimination on the basis of
such individual’s sex.”
Ante, at 9 (emphasis in original). But this reasoning puts
the analysis backwards. The question is not whether Congress
clearly excluded retaliation claims under Title IX, but whether it
clearly included them. The majority’s statement at best points to
ambiguity in the statute; yet ambiguity is resolved in favor of the
States, which must be aware when they accept federal funds of the
obligations they thereby agree to assume.
The majority asserts that “the Board should
have been put on notice by the fact that our cases since
Cannon, such as
Gebser and
Davis, have
consistently interpreted Title IX’s cause of action broadly to
encompass diverse forms of intentional sex discrimination.”
Ante, at 13.
Gebser and
Davis did not
hold or imply that Title IX prohibited “diverse forms of
intentional sex discrimination”; they held that schools could be
held vicariously liable for sexual harassment committed by students
or teachers. See
Gebser,
supra, at 277;
Davis,
supra, at 633. There was no question that
the sexual harassment in those cases was sex discrimination. See
Meritor Savings, 477 U. S., at 64 (“Without question, when
a supervisor sexually harasses a subordinate because of the
subordinate’s sex, that supervisor ‘discriminate[s]’ on the basis
of sex”). These cases hardly gave notice to the Board here that
retaliation liability loomed.
More important, the Court’s rationale
untethers notice from the statute. The Board, and other Title IX
recipients, must now assume that if conduct can be linked to sex
discrimination—no matter how attenuated that link—this Court will
impose liability under Title IX. That there is a regulation
proscribing retaliation in Title IX administrative enforcement
proceedings is no answer,
ante, at 13, for it says nothing
about whether retaliation is discrimination on the basis of sex,
much less whether there is a private cause of action for such
conduct. Rather than requiring clarity from Congress, the majority
requires clairvoyance from funding recipients.
B
Even apart from the clarity we
consistently require of obligations imposed by spending power
legislation, extending the cause of action implied in
Cannon to Jackson’s claim contradicts the standard we have
set for implying causes of action to enforce federal statutes.
Whether a statute supplies a cause of action is a matter of
statutory interpretation. See
Touche Ross & Co. v.
Redington, 442 U. S. 560, 568
(1979). We must examine whether the statute creates a right. That
right “must be phrased in terms of the person benefited.”
Gonzaga,
supra, at 284 (internal quotation marks
omitted); see also
Virginia Bankshares, Inc. v.
Sandberg, 501 U. S. 1083, 1102,
1103 (1991). And our inquiry is not merely whether the statute
benefits some class of people, but whether that class includes the
plaintiff in the case before us. Our role, then, is not “ ‘to
provide such remedies as are necessary to make effective the
congressional purpose’ expressed by a statute,” but to examine the
text of what Congress enacted into law.
Alexander v.
Sandoval,
532 U. S. 275, 287
(2001) (quoting
J. I. Case Co. v.
Borak, 377 U. S. 426, 433
(1964));
Virginia Bankshares, supra, at 1102;
Touche
Ross & Co.,
supra, at 578. If the statute evinces
no intent to create a right for the plaintiff in the case before
us, we should not imply a cause of action.
This Court has held that these
principles apply equally when the Court has previously found that
the statute in question provides an implied right of action and a
party attempts to expand the class of persons or the conduct to
which the recognized action applies.
Virginia Bankshares,
supra, at 1102. More specifically, this Court has rejected
the creation of implied causes of action for ancillary claims like
retaliation. In
Central Bank, we concluded that §10(b) of
the Securities Exchange Act of 1934, 48 Stat. 891, as amended, 15
U. S. C. §78j provided no civil action against those who aid
and abet individuals engaging in manipulative or deceptive
practices, though the respondents urged that such a claim was
necessary to fulfill the statute’s protection against deceit in the
securities marketplace. 511 U. S., at 177, 188. We declined to do
so even though this Court had implied a cause of action for §10(b).
See
Borak,
supra. In our view, while the
statute’s language potentially reached the conduct of some aiders
and abettors, the full scope of liability for aiding and abetting
would have extended liability beyond the conduct prohibited by the
statute.
Central Bank, 511 U. S., at 176. We surveyed
other statutes and found that “Congress knew how to impose aiding
and abetting liability when it chose to do so.”
Id., at
176–177
. Our view that the statute did not reach aiding
and abetting was also confirmed by the fact that an “element
critical for recovery” in actions against those engaging in
fraudulent and manipulative acts was not required in proving that
someone had aided and abetted such persons.
Id., at
180.
The same reasons militate equally against
extending the implied cause of action under Title IX to retaliation
claims. As in
Central Bank, imposing retaliation liability
expands the statute beyond discrimination “on the basis of sex” to
instances in which no discrimination on the basis of sex has
occurred. Again, §901 protects individuals only from discrimination
on the basis of their own sex.
Supra, at 2–4. Thus,
extending the implied cause of action under Title IX to claims of
retaliation expands the class of people the statute protects beyond
the specified beneficiaries. As with the absence of aiding and
abetting from the statute at issue in
Central Bank, I find
it instructive that §901 does not expressly prohibit retaliation,
while other discrimination statutes do so explicitly. And like the
aiding and abetting liability in
Central Bank,
prevailing on a claim of retaliation lacks elements necessary to
prevailing on a claim of discrimination on the basis of sex, for no
sex discrimination need have occurred.
The majority’s reliance on
Sullivan
v.
Little Hunting Park, Inc., 396 U. S. 229 (1969), is
wholly misplaced.
Ante, at 6–7. Rather than holding that a
general prohibition against discrimination permitted a claim of
retaliation,
Sullivan held that a white lessor had
standing to assert the right of a black lessee to be free from
racial discrimination pursuant to Rev. Stat. §1978, 42 U.
S. C. §1982. 396 U. S., at 237 (“[T]here can be no question
but that Sullivan has standing to maintain this action,” citing
Barrows v.
Jackson, 346 U. S. 249 (1953), a
standing case)).[
Footnote 4] To
make out his third-party claim on behalf of the black lessee, the
white lessor would necessarily be required to demonstrate that the
defendant had discriminated against the black lessee on the basis
of race. Jackson, by contrast, need not show that the sex
discrimination forming the basis of his complaints actually
occurred. Thus, by recognizing Jackson’s claim, the majority
creates an entirely new cause of action for a secondary rights
holder, beyond the claim of the original rights holder, and well
beyond
Sullivan. In any event,
Sullivan involved
§1982, a statute enacted pursuant to Congress’ Thirteenth Amendment
enforcement power,
Jones v.
Alfred H. Mayer Co.,
392 U. S. 409,
437–438 (1968), not its spending power.
Sullivan therefore
says nothing about whether Title IX clearly conditions States’
receipt of federal funds on retaliation liability.
III
The Court establishes a
prophylactic enforcement mechanism designed to encourage
whistleblowing about sex discrimination. The language of Title IX
does not support this holding. The majority also offers nothing to
demonstrate that its prophylactic rule is necessary to effectuate
the statutory scheme. Nothing prevents students—or their
parents—from complaining about inequality in facilities or
treatment. See,
e.g.,
Franklin, 503 U. S., at 63
(student brought suit);
Davis, 526 U. S., at 633 (suit
brought by minor’s parent). Under the majority’s reasoning, courts
may expand liability as they, rather than Congress, see fit. This
is no idle worry. The next step is to say that someone closely
associated with the complainer, who claims he suffered retaliation
for those complaints, likewise has a retaliation claim under Title
IX. See 2 Equal Employment Opportunity Commission, Compliance
Manual §8–II, p. 8–10 (1998) (“[I]t would be unlawful for a
respondent to retaliate against an employee because his or her
spouse, who is also an employee, filed an EEOC charge”).
By crafting its own additional
enforcement mechanism, the majority returns this Court to the days
in which it created remedies out of whole cloth to effectuate its
vision of congressional purpose. In doing so, the majority
substitutes its policy judgments for the bargains struck by
Congress, as reflected in the statute’s text. The question before
us is only whether Title IX prohibits retaliation, not whether
prohibiting it is good policy.
Central Bank, 511 U. S., at
177. For the reasons addressed above, I would hold that §901 does
not encompass private actions for retaliation. I respectfully
dissent.
Footnote 1
See,
e.g.,
Higgins v.
New Balance Athletic Shoe,
Inc., 194 F. 3d
252, 262 (CA1 1999);
Gregory v.
Daly, 243
F. 3d 687, 701 (CA2 2001);
Aman v.
Cort Furniture
Rental Corp., 85 F. 3d 1074, 1085 (CA3 1996);
Byers v.
Dallas Morning News, Inc., 209
F. 3d 419, 428 (CA5 2000);
Johnson v.
University
of Cincinnati, 215 F. 3d 561, 579–580 (CA6 2000);
Talanda v.
KFC Nat. Management Co., 140
F. 3d 1090, 1096 (CA7 1998);
EEOC v.
HBE
Corp., 135 F. 3d 543, 554 (CA8 1998);
Moore v.
California Inst. of Technology Jet Propulsion Lab., 275
F. 3d 838, 845, n. 1 (CA9 2002);
Crumpacker v.
Kansas Dept. of Human Resources, 338 F. 3d 1163, 1171
(CA10 2003);
Meeks v.
Computer Assoc. Int’l., 15
F. 3d 1013, 1021 (CA11 1994);
Parker v.
Baltimore
& Ohio R. Co., 652 F. 2d 1012, 1019–1020 (CADC 1981); cf.
Clark County School Dist. v.
Breeden,
532 U. S. 268, 271–272
(per curiam) (2001) (where no reasonable person could have believed
that the incident constituted sex harassment violating Title VII,
employee could not prevail on her retaliation claim).
Footnote 2
Tellingly, the Court does not adopt the
rationale offered by petitioner at oral argument. According to
petitioner, “[b]ut for the discrimination on the basis of sex, he
would not have complained, and … had he not made a complaint about
sex discrimination, he would [not] have lost his [coaching]
position.” Tr. of Oral Arg. 8. This “but for” chain exposes the
faulty premise in the position that retaliation is on the basis of
sex. The first and necessary step in this chain of causation is
that “discrimination on the basis of sex” occurred. Yet,
retaliation claims require proving no such thing. Thus, the “but
for” link articulated by counsel between “discrimination on the
basis of sex” and the adverse employment action does not exist.
Footnote 3
See also
Great American Fed. Sav. &
Loan Assn. v.
Novotny, 442 U. S. 366, 387
(1979) (White, J., dissenting) (“Clearly, respondent’s right under
§704(a)—to be free from retaliation for efforts to aid others
asserting Title VII rights—is distinct from the Title VII right
implicated in this claim under §1985(3), which is the right of
women employees not to be discriminated against on the basis of
their sex”).
Footnote 4
Title 42 U. S. C. §1982 provides: “All
citizens of the United States shall have the same right, in every
State and Territory, as is enjoyed by white citizens thereof to
inherit, purchase, lease, sell, hold and convey real and personal
property.”
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