Implied Rights and Avoidance in Title IX

My Federal Courts Professor has told us on several occasions that "implied rights of action are not growth stocks." Sandoval all but overruled the Cort v. Ash test for when to imply a right of action, and Scalia's majority opinion held that a private right of action must be based on legislative intent, and "legal context matters only to the extent it clarifies text." Thus, not only can the Court not imply a right of action without Congress wanting one, they can't even dig one up in the legislative history if it's not in the text.

The Court was true to this, sort of, in Jackson v. Birmingham, handed down yesterday, and holding that one who blows the whistle on sex discrimination, and is then retaliated against, can bring an action under Title IX. To be sure, Justice O'Connor's majority opinion does not question Sandoval, instead avoids the implied right of action issue and just considers the retaliation following the whistle-blowing itself "sex discrimination."

So, it seems, the prohibition on implied rights of action is safe.

The problem, however is the court's re-rewriting of the statute, as noted by Erasmus below. It seems like to get where they want, the majority would rather mess with the definition of "sex discrimination" than revisit the implied right issue. Thus, we get:

We conclude that when a funding recipient retaliates against a person because he complains of sex discrimination, this constitutes intentional "discrimination" "on the basis of sex," in violation of Title IX.

This is more judicial review nonsense. Like Erasmus' relay race analogy, the Court here found that since "[r]eporting incidents of discrimination is integral to Title IX enforcement and would be discouraged if retaliation against those who report went unpunished" and "if retaliation were not prohibited, Title IX's enforcement scheme would unravel," it should "fix" the statute to remedy these problems. The court even noted that "teachers and coaches such as Jackson are often in the best position to vindicate the rights of their students because they are better able to identify discrimination and bring it to the attention of administrators. Indeed, sometimes adult employees are "the only effective adversar[ies]" of discrimination in schools." This may be true, but it has nothing to do with the interpretation of the statute.

So, it seems, implied rights of action are becoming a cannon of avoidance, meaning that in order to save this doctrine we will have to put up with torturing of validly-enacted statutes to get where the hopeless four and the O'C want to get. An interesting corrolary is the nondelegation doctrine and John Manning's article "The Nondelegation Doctrine as a Canon of Avoidance," 2000 Supreme Court Review 223 (2000).

The difference, however, is that in the nondelegation context, the Court has basically upheld the doctrine, allbeit not exactly on its terms. The Court construes statutes narrowly to avoid deciding the constitutional issue of delegation, but the end holding is effectively constraining agency discretion as mandated by Article I. Here, however, the Court is interpreting the statute to avoid deciding the implied right issue, but undercutting the very purpose for the prohibition on implied rights in the first place. It seems the O'C wants to be able to imply her own rights of action, but doesn't want future courts to do it themselves. An archetype of her jurisprudence.

So although the Court is torturing statutes to uphold Constitutional principles, in the implied right context it does them not nearly as much good as in the nondelegation context because they're not furthering the Constitutional principle anyway. They might as well call a spade a spade because the effect is the same.