Franklin v. Gwinnett County School District Brief Amicus Curiae

    I n  T h e

^upnmu' (Court of tip llnttrfr States
October Term , 1991

Christine  F ra n k lin ,
Petitioner,v.

Gw in n ett  County School District and 
W illiam  Prescott,

Respondents.

On Writ of Certiorari to the United States 
Court of Appeals for the Eleventh Circuit

BRIEF OF THE LAWYERS’ COMMITTEE FOR 
CIVIL RIGHTS UNDER LAW AS AMICUS CURIAE 

IN SUPPORT OF PETITIONER

William T. Lake 
Counsel of Record 

David R. H ill 
Stuart Cane
Wilmer, Cutler & P ickering 
2445 M Street, N.W. 
Washington, D.C. 20037 
(202) 663-6000
William H. Brown III 

Co-Chairman 
Herbert M. Wachtell 

Co-Chairman 
Norman Redlich 

Trustee
Barbara R. Arnwine 
Thomas J. Henderson 
Paul H oltzman 
Lawyers’ Committee for 

Civil Rights Under Law 
1400 Eye Street, N.W. 
Washington, D.C. 20005 
(202) 371-1212August 14,1991



QUESTION PRESENTED
Whether a private party  may recover compensatory 

damages for an intentional violation of Title IX of the 
Education Amendments of 1972, 20 U.S.C. 1681 et seq.

0)



QUESTION PRESENTED ___     i

TABLE OF AUTHORITIES... ........................... ......... iv

INTEREST OF AMICUS CURIAE............................... 1

SUMMARY OF ARGUMENT ....... ................... ...........  2

ARGUMENT..........................     4

I. UNDER THE LAW AS STATED IN BELL v. 
HOOD, COMPENSATORY DAMAGES ARE 
AVAILABLE TO A PRIVATE PLAINTIFF 
WHO PROVES AN INTENTIONAL VIOLA­
TION OF TITLE IX .................................... .......  5

II. THERE ARE NO ELEVENTH AMENDMENT 
OR OTHER CONSTITUTIONAL CONCERNS 
THAT WARRANT RESTRICTION OF THE 
REMEDIES AVAILABLE UNDER TITLE IX.. 14

TABLE OF CONTENTS
Page

CONCLUSION 24



IV

TABLE OF AUTHORITIES
CASES Page

Alexander v. Gardner-Denver Co., 415 U.S. 36
(1974)............................................................. ........  13

Atascadero State Hospital v. Scanlon, 473 U.S. 234
(1985)...... ............ ..................................................  20, 21

Bell v. Hood, 327 U.S. 678 (1946).... ....... ......... ..... passim
Bivens v. Six Unknown Named Agents of the Fed­

eral Bureau of Narcotics, 403 U.S. 388 (1971) ..5, 6, 7, 8 
Board of County Commissioners v. United States,

308 U.S. 343 (1939)...       6
Bush v. Lucas, 462 U.S. 367 (1983)............... ..... 11
Butz v. Economou, 438 U.S. 478 (1978)__ ______  8
Cannon v. University of Chicago, 441 U.S. 677

(1979) ........    passim
Carlson v. Green, 446 U.S. 14 (1980) __.,_______  9
The Civil Rights Cases, 109 U.S. 3 (1883) .............  18
Consolidated Rail Corp. v. Darrone, 465 U.S. 624

(1984) ......     passim
Cort v. Ash, 422 U.S. 66 (1975)............ ............ .. .7,10,11
Davis v. Passman, 442 U.S. 228 (1979)................. passim
Deckert v. Independence Shares Corp., 311 U.S.

282 (1940) ......      6
Drayden v. Needville Independent School District,

642 F.2d 129 (5th Cir. 1981) ....... ........ ....... ...... . 15
Edelman v. Jordan, 415 U.S. 651 (1974) ...............  16, 22
Fitzpatrick v. Bitzer, 427 U.S. 445 (1976)______ 19
Franks v. Bowman Transportation Co., 424 U.S.

747 (1976) ..................      13
Grove City College v. Bell, 465 U.S. 555 (1984).... 2
Guardians Association v. Civil Service Commission

of New York, 463 U.S. 582 (1983)........ ..... ..... ..passim
Hayes v. Michigan Central Railroad Co., I l l  U.S.

228 (1884)............... ....... ....................... ............ -  5
International Union of Electrical, Radio & Machine 

Workers v. Robbins & Myers, Inc., 429 U.S. 229
(1976) ... .... ...... .. ........ ... ... ............ ........ ........... 13

J.I. Case Co. v. Borak, 377 U.S. 426 (1964)............  6
Jett v. Dallas Independent School District, 491 U.S.

701 (1989).............. ........................... ............... . 8
Johnson v. Railway Express Agency, Inc., 421 U.S.

454 (1975).............. ................. ............... .............  13,14



V

Lieberman v. University of Chicago, 660 F.2d 1185 
(7th Cir. 1981), cert, denied, 456 U.S. 937
(1982).... ...... ....... ................... ..............................  17

Marbury v. Madison, 5 U.S. (1 Cranch) 137
(1803) .............. ....... .......... ..... ............... ............. . 5

McDonnell Douglas Corp. v. Green, 411 U.S. 792
(1973) ....................... ....... ............... .....................  13

North Haven Board of Education v. Bell, 456 U.S.
512 (1982) ................................... ........ ........ .......  4, 13

Padway v. Patches, 665 F.2d 965 (9th Cir. 1982).. 12
Pearson v. Western Electric Co., 542 F.2d 1150

(10th Cir. 1976) ....................................... ...........  12
Pennhurst State School & Hospital v. Halderman,

451 U.S. 1 (1981) ______________  ____ ____ ..passim
Regents of the University of California v. Bakke,

438 U.S. 265 (1978)............... ....... .......... ....... . 18
Rosado v. Wyman, 397 U.S. 397 (1970) ...............  16, 21
Santa Clara Pueblo v. Martinez, 436 U.S. 49

(1978) ........ ......... .................................... ..............  7
Steele v. Louisville & Nashville Railroad Co., 323

U.S. 192 (1944) ................. ............... ........... .......  6
Steward Machine Co. v. Davis, 301 U.S. 548

(1937)............................. ...... .................................  15
Sullivan v. Little Hunting Park, Inc., 396 U.S. 229

(1969) ...... ........... ................ ..................................  5, 6, 7
Texas & New Orleans Railroad Co. v. Brotherhood 

of Railway & Steamship Clerks, 281 U.S. 548
(1930) ............ ..................................... ....... .......... . 6

Texas & Pacific Railway v. Rigsby, 241 U.S. 33
(1916).............. ........... ............................. ..... .......  6

Transamerica Mortgage Advisors, Inc. v. Lewis,
444 U.S. 11 (1979) ............. ..... ................. .......... passim

United States Department of Transportation v. 
Paralyzed Veterans of America, 411 U.S. 597
(1986) ___________ _________ ___ ___ ___ _ 4

United States v. Menasch, 348 U.S. 528 (1955)... 21
United States v. Republic Steel Corp., 362 U.S. 482

(1960) .......................... ............... ....... ............... ...  6,11
Welch v. Texas Department of Highways & Public

Transportation, 483 U.S. 468 (1987) ......... ...... . 14
Wicker v. Hoppock, 73 U.S. (6 Wall.) 94 (1867).... 5

TABLE OF AUTHORITIES—Continued
Page



VI

Wyandotte Transportation Co. v. United States,

TABLE OF AUTHORITIES—Continued
Page

389 U.S. 191 (1967) _________ ______ __„.....6, 7,10
Ex parte Young, 209 U.S. 123 (1908)........... .........  22

CONSTITUTION AND STATUTES
U.S. Const, amend. X I____ ______ _____ ______ 14,19, 21
U.S. Const, amend. X IV ....... ..... ....................... .......  18
U.S. Const, art. I, § 8, cl. 1 (Spending Clause) ......15,17,18
42 U.S.C. § 1981........... ........ ....................... ...............  14
42 U.S.C. § 6101 et seq........... .................... ...............  20
Civil Rights Act of 1964, tit. VI, 42 U.S.C. § 2000d

et seq ........ ........................ .......... ........... ......... ..... ..passim
Civil Rights Act of 1964, tit. VII, 42 U.S.C. § 2000e

et seq._____________ ___ ___ ___________ _12,13, 14
Civil Rights Remedies Equalization Act of 1986,

42 U.S.C. § 2000d-7..... ......................... ........... .......................................passim
Education Amendments of 1972, tit. IX, 20 U.S.C.

§ 1681 et seq__________ _______ ______ ___ .....passim
Rehabilitation Act of 1973, § 504 (as amended), 29

U.S.C. § 794................. ................... ..... ..... ....... ... 4, 20, 21
OTHER LEGISLATIVE MATERIALS

110 Cong. Rec. 1527 (1964).............     18
110 Cong. Rec. 1529 (1964) ...................    18
110 Cong. Rec. 1540 (1964)__     9
110 Cong. Rec. 5256 (1964)... ... .......................    11
110 Cong. Rec. 7062 (1964) .......      9
110 Cong. Rec. 13,333 (1964).......... ......... ............ . 18
117 Cong. Rec. 39,252 (1971)........................... -.......  9
118 Cong. Rec. 5806-07 (1972)....... ...................... ...  9
132 Cong. Rec. 28,094-95 (1986) -------- --------------  22
132 Cong. Rec. 28,623 (1986)....................................  22, 23
H.R. Conf. Rep. No. 955, 99th Cong., 2d Sess.

(1986) ...... ............ .......... ........................—-.......  22
H.R. Rep. No. 914, 88th Cong., 1st Sess. (1963)....... 18
S. Rep. No. 388, 99th Cong., 2d Sess. (1986)---- ----  21, 22

MISCELLANEOUS
2A N.J. Singer, Sutherland Statutory Construction

(4th ed. 1984) ...... ................... ....... ............ -.........  21
Note, The Eleventh Amendment and State Damage 

Liability Under the Rehabilitation Act of 1973, 
71 Va. L. Rev. 655 (1985) .................................... 18



In The

B n p t m t  (C iw r i u f  %  B U U b
October Term , 1991

No. 90-918

Christine  F ra n k lin ,
Petitioner, v. ’

Gw in n ett  County School District and 
W illiam  P rescott,

Respondents.

On Writ of Certiorari to the United States 
Court of Appeals for the Eleventh Circuit

BRIEF OF THE LAWYERS’ COMMITTEE FOR 
CIVIL RIGHTS UNDER LAW AS AMICUS CURIAE 

IN SUPPORT OF PETITIONER

This amicus curiae brief is submitted by the Lawyers’ 
Committee for Civil Rights Under Law in support of peti­
tioner Christine Franklin. Ety letters filed with the Clerk, 
petitioner and respondents have consented to the filing of 
this brief.

INTEREST OF AMICUS CURIAE
The Lawyers’ Committee is a nonprofit organization 

established in 1963 at the request of the President of the 
United States to involve leading members of the bar in 
the effort to ensure civil rights for all Americans. As 
part of this effort, the Lawyers’ Committee has partici­
pated as amicus curiae in two previous Title IX cases 
before this Court, Cannon v. University of Chicago, 441



2

U.S. 677 (1979) and Grove City College v. Bell, 465 IJ.S. 
555 (1984). It also has represented parties or partici­
pated as amicus curiae in numerous cases arising under 
other federal antidiscrimination laws and under the 
Constitution.

This case raises an important issue concerning the 
relief available under Title IX, and the Court’s decision 
may also affect the remedies available under Title VI of 
the Civil Rights Act of 1964—which served as the model 
for Title IX. Because the Lawyers’ Committee frequently 
represents victims of race discrimination in litigation 
under Title VI, it has a particular interest in urging 
principles that will result in the sound application of 
Title VI, and in the resolution of any uncertainty as to 
whether the federal courts may provide full relief to vic­
tims of intentional race discrimination in federally as­
sisted programs,

SUMMARY OF ARGUMENT
This case concerns a core judicial function'—the award 

of remedies to implement a federal statutory cause of ac­
tion. Petitioner has an unquestioned right under Title IX 
of the Education Amendments of 1972 to be free from 
sex-based discrimination in a federally assisted educa­
tional program. She has an equally unquestioned right 
to sue to redress an intentional violation of that right. 
The issue presented is whether the federal courts are dis­
abled from providing compensatory damages as a means 
of such redress.

The federal courts have power to provide the relief 
requested. Nothing in the text of Title IX, its legislative 
history, or its animating purposes suggests that the 
courts have been denied that power. No circumstances 
exist here to displace the usual rule that all available 
remedies may be employed to vindicate federal rights, 
Bellv. Hood, 327 U.S. 678, 684 (1946). Indeed, that rule



3

applies with particular force where, as in this case, the 
choice is “damages or nothing.”

Just as nothing in Title IX or its legislative history 
restricts the federal courts’ familiar remedial powers, 
nothing in the Eleventh Amendment or principles derived 
from it requires that compensatory damages be withheld 
for intentional violations of Title IX. In Pennhurst 
State School & Hosp. v. Halderman, 451 U.S. 1 (1981), 
this Court held that Congress must speak clearly when 
it seeks to create rights that are enforceable against the 
States. And in Guardians Ass’n v. Civil Service Comm’n 
of Neiv York, 463 U.S. 582 (1983), two members of the 
Court found Pennhurst to support the denial of retroac­
tive relief in an action against a public entity other than 
a State, where unintentional discrimination was alleged.

Pennhurst is satisfied here. Title IX speaks clearly 
and unambiguously; it creates enforceable rights, not a 
mere “nudge in the preferred direction.” Having ac­
cepted an obligation not to discriminate, and having will­
fully violated that obligation, a recipient of federal funds 
should make good the injury done. Any doubt that Elev­
enth Amendment principles allow an award of damages 
against a public entity in these circumstances was ex­
plicitly removed by Congress when, in 1986, it reaffirmed 
the federal courts’ authority to provide “remedies both at 
law and in equity” in Title IX actions against the 
States. 42 U.S.C. § 2000d-7 (1988).



4

ARGUMENT

Petitioner has alleged that she suffered intentional dis­
crimination on the basis of sex at the hands of Respond­
ents, in violation of Title IX of the Education Amend­
ments of 1972, 20 U.S.C. § 1681 (1988). This case pre­
sents the question whether, if she proves her case, she 
may recover compensatory damages.1 Congress did not 
expressly create a private cause of action when it enacted 
Title IX, and did not express a preference that certain 
forms of individual relief be available or unavailable. 
Congress did, however, establish an enforceable right for 
the benefit and protection of a defined class; and this 
Court has held that the statute therefore gives an im­
plied cause of action to an injured member of that class. 
Cannon v. University of Chicago, 441 U.S. 677, 689, 717 
(1979). This Court routinely has held that, where such 
a federal right has been invaded and a cause of action 
exists, “federal courts may use any available remedy to 
make good the wrong done.” Bell v. Hood, 327 U.S. 678, 
684 (1946).

1 References in the brief generally will be only to Title IX, the 
statute under which this case arises. This Court, however, has 
construed the remedial provisions of Title IX, Title VI of the Civil 
Rights Act of 1964, 42 U.S.C. § 2000d et seq. (1988), and Section 
504 of the Rehabilitation Act of 1973, as amended, 29 U.S.C. 
§794 (1988) to be related. See Cannon v. University of Chicago, 
441 U.S. 677, 694-96 (1979) ; United States Dep’t of Transp. v. 
Paralyzed Veterans of Am., 477 U.S. 597, 600 n.4 (1986) ; Consoli­
dated Rail Corp. v. Darrone, 465 U.S. 624, 626, 630 & n.9 (1984) ; 
North Haven Bd. of Educ. v. Bell, 456 U.S. 512, 529 (1982). Thus, 
whether compensatory damages are available under Title IX may 
bear strongly on whether such damages are available under Title VI 
and Section 504. In addition, cases construing either Title VI or 
Section 504 aid in the interpretation of Title IX.



I. UNDER THE LAW AS STATED IN BELL v. HOOD,
COMPENSATORY DAMAGES ARE AVAILABLE TO 
A PRIVATE PLAINTIFF WHO PROVES AN IN­
TENTIONAL VIOLATION OF TITLE IX.

Long ago, this Court held that, “where legal rights 
have been invaded, and a federal statute provides for a 
general right to sue for such invasion, federal courts may 
use any available remedy to make good the wrong done.” 
Bell v. Hood, 327 U.S. 678, 684 (1946) (footnote 
omitted); see Davis v. Passman, 442 U.S. 228, 245-47 
(1979) ; Bivens v. Six Unknown Named Agents of the 
Federal Bureau of Narcotics, 403 U.S. 388, 396 (1971) ; 
Sullivan v. Little Hunting Park, Inc., 396 U.S. 229, 239- 
40 (1969). The rule of Bell v. Hood is grounded in the 
bedrock principle that, where federally protected rights 
have been invaded, a federal court may give an appro­
priate decree or award that will make the plaintiff whole. 
See Marbury v. Madison, 5 U.S. (1 Cranch) 137, 163 
(1803) (unless there are particular factors that “exclude 
the injured party from legal redress,” the court will apply 
the “ ‘general and indisputable rule, that where there is 
a legal right, there is also a legal remedy by suit, or 
action at law, whenever that right is invaded.’ ” ) (cita­
tion omitted) .2

Bell v. Hood concerned the remedies available to a 
plaintiff who sued for violations of his Fourth and Fifth 
Amendment rights. 327 U.S. at 679. Thus, the rule 
taken from that case arose in the context of constitu­
tional causes of action. However, prior to Bell v. Hood, 
the same rule had been applied in a statutory context.

2 See also Hayes v. Michigan Cent. R.R., 111 U.S. 228, 239-40 
(1884) (when a person is injured due to the breach of a statutory 
obligation, the person “is entitled to his individual compensation, 
and to an action for its recovery”) ; Wicker v. Hop-pock, 73 U.S. 
(6 Wall.) 94, 99 (1867) (“The injured party is to be placed, as 
near as may be, in the situation he would have occupied if the wrong 
had not been committed.” ).



6

See, e.g., Texas & Pac. Ry. v. Rigsby, 241 U.S. 33, 39 
(1916).3 Since Bell v. Hood was decided, it has been 
applied to constitutional causes of action, see, e.g., Davis, 
442 U.S. at 245; Bivens, 403 U.S. at 396-97; and to stat­
utory causes of action, see, e.g., Sullivan, 396 U.S. at 
239-40; Wyandotte Transp. Co. v. United States, 389 
U.S. 191, 200-204 (1967) ; J.I. Case Co. v. Borak, 377 
U.S. 426, 433 (1964) ; United States v. Republic Steel 
Corp., 362 U.S. 482, 492 (1960). In fact, Bell v. Hood 
has been recognized as the “usual rule” for determining 
the relief to which an aggrieved party is entitled. Guar­
dians Ass’n v. Civil Service Comm’n of New York, 463 
U.S. 582, 595 (1983) (opinion of White, J .) .

The Court has recognized only one exception to the 
Bell v. Hood rule: Remedies available to an aggrieved 
plaintiff may be restricted when Congress has made clear 
that particular remedies may not be awarded. Guardians, 
463 U.S. at 595 (opinion of White, J . ) ; Davis, 442 U.S. 
at 246-47 (plaintiff entitled to recover compensatory 
damages because there is no “explicit” congressional dec­
laration that this remedy is not available) ; Wyandotte 
Transp., 389 U.S. at 200-204; see Transamerica Mort­
gage Advisors, Inc. v. Leivis, 444 U.S. 11, 20 (1979) 
(“Even settled rules of statutory construction could yield, 
of course, to persuasive evidence of a contrary legislative 
intent.” ). As these cases stress, affirmative congressional 
intent to deny a particular remedy must be shown before 
the Bell v. Hood rule is displaced. See Wyandotte 
Transp., 389 U.S. at 199-204.4

3 See also Steele v. Louisville & Nashville R.R., 323 U.S. 192, 207 
(1944); Deckert v. Independence Shares Corp., 311 U.S. 282, 288 
(1940); Board, of County Comm’rs v. United States, 308 U.S. 343, 
350 (1939); Texas & New Orleans R.R. v. Brotherhood of Ry. & 
S.S. Clerks, 281 U.S. 548, 569-70 (1930).

4 Cf. Cannon, 441 U.S. at 694 (in context of determining whether 
implied private right of action exists, “ ‘it is not necessary to show 
an intention to create a private cause of action, although an explicit



7

The Bell v. Hood rule applies to this case, and man­
dates that compensatory damages be available in Title 
IX cases involving intentional discrimination. First, 
Petitioner’s complaint invokes federally protected rights. 
One of the primary objectives of Title IX was to “provide 
individual citizens effective protection against” sex dis­
crimination. Cannon, 441 U.S. at 704; see also id. at 694 
(“Title IX explicitly confers a benefit on persons discrim­
inated against on the basis of sex” ). Second, private 
suits may be brought for violations of these rights. Id. 
at 689, 717. The only question remaining in this case is 
whether compensatory damages are available to one who 
proves an intentional violation of Title IX.5 Bell v. Hood 
answers that “federal courts may use any available rem­
edy to make good the wrong done.” 327 U.S. at 684; 
see also Guardians, 463 U.S. at 624-25 (Marshall, J., 
dissenting) ; Sullivan, 396 U.S. at 239-40; Wyandotte 
Transp., 389 U.S. at 200-204; see Davis, 442 U.S. at 239 
(“ [T]he question whether a litigant has a ‘cause of ac­
tion’ is analytically distinct and prior to the question of 
what relief, if any, a litigant may be entitled to re­
ceive.” ).

Under Bell v. Hood, unless Respondents can show a 
clearly stated legislative intent to the contrary, a federal 
court may award any appropriate remedy that vindi­
cates the federal rights being asserted. See Bivens, 403 
U.S. at 396; Transamerica Mortgage, 444 U.S. at 30 
(White, J., dissenting) (“in the absence of any contrary

purpose to deny such a cause of action would be controlling’ ”) (em­
phasis in original) (quoting Cort v. Ash, 422 U.S. 66, 82 (1975)); 
Santa Clara Pueblo v. Martinez, 436 U.S. 49, 79 (1978) (White, J., 
dissenting).

5 In Guardians, “a majority of the Court expressed the view that 
a private plaintiff under Title VI could recover backpay.” Darrone, 
465 U.S. at 630. A majority of the Guardians Court also “agreed 
that retroactive relief is available to private plaintiffs for all dis­
crimination, whether intentional or unintentional, that is actionable 
under Title VI.” Id. at 630 n.9.



8

indication by Congress, courts may provide private liti­
gants exercising implied rights of action whatever relief 
is consistent with the congressional purpose,” and they 
“need not be restricted to equitable relief” ). Because 
there is nothing in Title IX or in the legislative history 
surrounding its enactment that shows an explicit con­
gressional intent to deny compensatory damages to vic­
tims of intentional discrimination in violation of Title 
IX, the rule of Bell v. Hood controls. See Guardians, 463 
U.S. at 595 (opinion of White, J.) ; Cannon, 441 U.S. at 
694; Bivens, 403 U.S. at 397; Transamerica Mortgage, 
444 U.S. at 30 (White, J., dissenting).6

Especially strong indications of congressional intent 
to deny victims of intentional discrimination a damages 
remedy must be shown before the Court departs from 
the usual rule of Bell v. Hood. Compensatory damages 
are the normal remedy associated with violations of an 
individual’s federally protected rights. See Davis, 442 
U.S. at 245 (damages are normal remedy to redress viola­
tions of liberty interest) ; see also Jett v. Dallas Indep. 
School Dish, 492 U.S. 701, 742 (1989) (Brennan, J., dis­
senting) ; Bivens, 403 U.S. at 410 (Harlan, J., concurring 
in the judgment). Injunctive or declaratory remedies of­
ten provide victims with little or no redress against those 
who have intentionally violated their rights. See Trans­
america Mortgage, 444 U.S. at 35 (White, J., dissenting) 
(without damages remedy, victims “have little hope of 
obtaining redress for their injuries” ) ; Butz v. Economou,

6 The absence of legislative history showing that Congress wished 
to deny victims of intentional discrimination a damages remedy is 
not surprising, since the statute itself indicates no such intent. 
As this Court noted when considering whether Title IX created a 
private right of action, “the legislative history of a statute that does 
not expressly create or deny a private remedy will typically be 
equally silent or ambiguous” on that same subject. Cannon, 441 U.S. 
at 694; see also Transamerica Mortgage, 444 U.S. at 18.



9

438 U.S. 478, 504 (1978) (“Injunctive or declaratory re­
lief is useless to a person who has already been in­
jured.” ). Respondents can show no clearly expressed con­
gressional intent to deny victims of intentional discrim­
ination their normal and most effective remedy—com­
pensatory damages.

As the normal remedy for intentional discrimination, 
compensatory damages unquestionably promote the ob­
jectives of Title IX. The Court should reject the United 
States’ argument to the contrary. Cf. Brief for the 
United States as Amicus Curiae in Support of the Peti­
tion for Writ of Certiorari at 18-19. The prohibitions of 
discrimination contained in Titles IX and VI focus di­
rectly on eliminating discrimination in programs that 
receive federal funds. Cannon, 441 U.S. at 704; see also 
110 Cong. Rec. 7062 (1964) (Title VI; comments of Sen. 
Pastore) ; id. at 1540 (Title VI; comments of Rep. Lind­
say) ; 117 Cong. Rec. 39,252 (1971) (Title IX; comments 
of Rep. Mink) ; 118 Cong. Rec. 5806-07 (1972) (Title IX; 
comments of Sen. Bayh). By arguing that the overriding 
purpose of Title IX was to fund educational institutions, 
the United States confuses the purpose of Title IX with 
the purposes of the appropriations acts that fund particu­
lar federal programs. Those are obviously two different 
questions. The purpose of Title IX was to eliminate the 
use of federal funds to support discriminatory practices 
and to provide citizens with effective protection against 
those practices. Cannon, 441 U.S. at 704. A compensa­
tory damages remedy only furthers this purpose by de­
terring intentional violators from accepting federal funds 
and by making victims whole if intentional violations 
occur. See Carlson v. Green, 446 U.S. 14, 21 (1980) 
(“ [i]t is almost axiomatic that the threat of damages 
has a deterrent effect” ) .

The United States invites the Court to depart from its 
established jurisprudence by posing what is, in light of 
that jurisprudence, the wrong question. The United States



10

asks whether “Congress intended to provide private liti­
gants with a right to recover damages under Title IX.” 
Brief for the United States in Support of the Petition 
for Certiorari at 15. But that is not the issue under the 
Court’s precedents. The correct question, as noted above, 
is whether Congress explicitly stated an intent to deny 
victims of intentional discrimination a damages remedy. 
See Guardians, 463 U.S. at 595 (opinion of White, J.) : 
Davis, 442 U.S. at 246-47. It is in this respect that con­
gressional intent is relevant under the rule of Bell v. 
Hood. Congress stated no such explicit intent, as we have 
shown.7

The United States incorrectly states the question before 
the Court because it misconstrues this Court’s cases, 
First, in support of its argument that Congress must 
have shown an intent to create a damages remedy before 
damages may be awarded, it relies solely on cases and 
language of this Court concerning whether Congress in­
tended to create a cause of action. See Brief for the 
United States in Support of the Petition for Certiorari 
at 14 & n.22.8 Under the cases discussed above, affirm­
ative congressional intent may be the touchstone in 
creating a cause of action, but it is relevant only in

7 The United States’ formulation of the issue would require Con­
gress to be more specific in affording remedies under implied causes 
of action than under expressly created causes of action. See 
Wyandotte Transp., 389 U.S. at 200-04; see also Cort, 422 U.S. at 
82-83 & n.14. Indeed, the inquiry advanced by the United States 
could result in very little relief being available under the Title IX 
implied cause of action or other implied causes of action, since it is 
“hardly surprising” for there to be little explicit congressional intent 
regarding remedies when Congress did not explicitly create a cause 
of action. See Brief for the United States in Support of the Petition 
for Certiorari at 15.

8 Of course, this Court already has ruled that Congress intended 
a private right of action to exist under Title IX. Cannon, 441 U.S. 
at 694 (“the history of Title IX rather plainly indicates that Con­
gress intended to create” a private right of action).



11

determining whether to deny a particular remedy. 
Guardians, 463 U.S. at 595 (opinion of White, J . ) ; Davis, 
442 U.S. at 246-47. This approach reflects a sound under­
standing of the respective roles of Congress and the 
courts. Where Congress has created a right of action, it 
is traditionally for the courts to determine what remedy 
is most appropriate to redress a particular violation. See 
Republic Steel Corp., 362 U.S. at 492 (“Congress has 
legislated and made its purpose clear; it has provided 
enough federal law . . . from which appropriate remedies 
may be fashioned even though they rest on inferences.” ). 
The rule of Bell v. Hood gives a court the full range of 
remedies from which to choose, unless Congress explicitly 
has provided otherwise.

Second, the United States misreads this Court’s opin­
ion in Transamerica Mortgage. It does so by, once again, 
applying in a remedies context language that the Court 
used in determining whether a cause of action existed. 
Compare Brief for the United States in Support of the 
Petition for Certiorari at 14 with Transamerica Mort­
gage, 444 U.S. at 15 (“The question whether a statute 
creates a cause of action, either expressly or by implica­
tion, is basically a matter of statutory construction.” ). 
The Court in Transamerica Mortgage, 'consistently with 
the principles explained above, denied a damages remedy 
to plaintiffs in that case only after determining that 
extensive and persuasive legislative history, and the terms 
of the statute itself, showed a congressional intent to 
deny legal damages to aggrieved plaintiffs. 444 U.S. at 
21-22, 29-30 & n.6; see also Bush v. Lucas, 462 U.S. 
367, 374-75, 378 (1983) ; Cort, 422 U.S. at 82-83 & n.14. 
Congress expressed no such intent when it enacted Title 
IX. In fact, the opposite is true. See, e.g., 110 Cong. 
Rec. 5256 (1964) (Title VI; comments of Sen. Case) 
(cutoff of funds remedy is “not intended to limit the 
rights of individuals, if they have any way of enforcing 
their rights apart from the provisions of the bill, by way



12

of suit or any other procedure. The [cutoff of funds 
remedy] is not intended to cut down any rights that 
exist.” ).0 Transamerica Mortgage, therefore, is perfectly 
consistent with the framework advanced above and the 
result urged by Petitioner.9 10

Finally, the United States seems to advocate that the 
Court disregard its well-established rules of construction 
because the availability of compensatory damages under 
Title IX would “give rise to a curious anomaly in the 
civil rights acts.” Brief for the United States in Support 
of the Petition for Certiorari at 17. Such an “anomaly” 
would arise, the United States asserts, because a Title 
IX plaintiff suing to redress sex discrimination would 
have broader remedies than a Title VI plaintiff suing to 
redress race discrimination. Id. In addition, the United 
States asserts that it would be “especially anomalous” 
if the remedies to enforce the implied cause of action 
under Title IX were broader than those expressly granted 
for employment discrimination in educational institu­
tions, under Title VII.11 Id. at 18 n.15.

9 Cannon itself forecloses any argument that Congress intended 
only those administrative remedies explicitly provided in Title IX 
to be available to aggrieved plaintiffs. Cannon, 441 U.S. at 705.

10 One of the United States’ primary grounds for inferring a 
congressional intent to deny a damages remedy for intentional viola­
tions of Title IX is that, at the time Congress enacted Title IX, 
courts construing Title VI had awarded primarily equitable relief. 
Brief for the United States in Support of the Petition for Certiorari 
at 16-17. Of course, that would provide no basis for ascertaining 
congressional intent at the time Title VI was passed. Thus, to the 
extent the Court accepts the United States’ novel argument that 
Congress must have intended to create a damages remedy before 
the courts may award damages, one of the United States’ primary 
methods of “illuminating” congressional intent under Title IX sheds 
no light at all on the intended remedies under Title VI.

11 It generally has been held that compensatory damages are not 
available under Title VII. See, e.g., Padway v. Patches, 665 F.2d 
965, 968 (9th Cir. 1982) ; Pearson v. Western Elec. Co., 542 F.2d 
1150, 1151-52 (10th Cir. 1976).



13

The asserted anomalies provide no basis for abandon­
ing the normal rules of construction. It is not at all 
clear that the remedies under Title IX and Title VI will 
differ if compensatory damages are made available for 
intentional violations of Title IX. The United States 
asserts that such a conflict will arise because persons 
alleging employment discrimination on the basis of race 
in a federally funded program generally are remitted to 
their equitable remedies under Title VII. Brief for the 
United States in Support of the Petition for Certiorari at 
17. But this Court has never passed on that issue, which 
would involve interpretation of provisions in Title VI 
that have no counterpart in Title IX.12 It would be put­
ting the cart before the horse for the Court to reject the 
interpretation of Title IX that is dictated by established

12 Title VI provides th a t:
Nothing contained in this subchapter shall be construed to au­
thorize action under this subchapter by any department or 
agency with respect to any employment practice of any em­
ployer, employment agency, or labor organization except where 
a primary objective of the Federal financial assistance is to 
provide employment.

42 U.S.C. § 2000d-3 (1988). Title IX contains no analogous provi­
sion. The Court previously has noted this difference between Title 
VI and Title IX. North Haven, 456 U.S. at 529-30; see also Darrone, 
465 U.S. at 631-34 & n.13. Of course, this difference does not suggest 
that compensatory damages should be available under Title IX but 
not under Title VI. It merely demonstrates that Congress itself 
intended Title IX to be somewhat broader in scope than Title VI. 
This intent of Congress is not anomalous or even surprising. Con­
gress, in conjunction with Title VI, had enacted Title VII which dealt 
comprehensively with the national problem of race discrimination 
in employment. See North Haven, 456 U.S. at 536 n.26 (“this 
Court repeatedly has recognized that Congress has provided a 
variety of remedies, at times overlapping, to eradicate employ­
ment discrimination”) (citing International Union of Electrical, 
Radio & Machine Workers v. Robbins & Myers, Inc., 429 U.S. 229, 
236-39 (1976); Johnson v. Railway Express Agency, Inc., 421 U.S. 
454, 459 (1975); Alexander v. Gardner-Denver Co., 415 U.S. 36, 47- 
48 (1974)); see also Franks v. Bowman Transp. Co., 424 U.S. 747, 
764 (1976); McDonnell Douglas Corp. v. Green, 411 U.S. 792, 800 
(1973).



14

rules of construction, merely to pursue symmetry with 
a proposed interpretation of a Title VI provision on which 
this Court has never ruled.13 14

As to Title VII, the purported anomaly reflects simply 
a different congressional prescription for a different type 
of ill. Title VII focuses exclusively on employment, while 
Title IX focuses on avoiding the use of federal funds to 
support discriminatory practices and giving individuals 
“effective protection against those practices.” Cannon, 
441 U.S. at 704. As in this case, the damages inflicted 
by violations of Title IX may not be primarily economic. 
By prescribing equitable remedies in Title VII, Congress 
evidently determined that persons who have suffered 
economic injuries due to race discrimination in employ­
ment, generally in a private context, should not have the 
same breadth of remedies as individuals who have suf­
fered intentional discrimination by recipients of federal 
funds.11

II. THERE ARE NO ELEVENTH AMENDMENT OR 
OTHER CONSTITUTIONAL CONCERNS THAT 
WARRANT RESTRICTION OF THE REMEDIES 
AVAILABLE UNDER TITLE IX.

To justify its denial of a damages remedy, the court 
of appeals relied heavily on certain principles of federal­
ism, rooted in the Eleventh Amendment and related no­
tions of State autonomy, that come into play in inter­

13 In any event, an individual who sues for race discrimination in 
employment is entitled to recover compensatory damages under 42 
U.S.C. § 1981. See Johnson, 421 U.S. at 460.

14 Even if the United States had provided a persuasive rationale 
for changing the rule of construction as to remedies, which it has 
not, the Court should not apply a new and different rule with respect 
to statutes passed when the Bell v. Hood rule of construction applied. 
See Welch v. Texas Highways & Put. Transp. Dep’t, 483 U.S. 468, 
496 (1987) (Scalia, J., concurring in part) ; Transamerica Mortgage, 
444 U.S. at 32 n.8 (White, J., dissenting); Cannoji, 441 U.S. at 698 
nn.22 & 23; id. at 718 (Rehnquist, J., concurring).



15

preting federal statutes enacted pursuant to the spending 
power. Without expressly saying so, the court below 
apparently concluded that those concerns warrant de­
parture from the “usual rule” of Bell v. Hood in deter­
mining what remedies are available against State or local 
governments for violation of a federal spending power 
statute. That conclusion, we submit, was erroneous.15

The principles on which the court of appeals relied 
were developed by this Court in Pennhurst State School 
& Hosp. v. HaXderman, 451 U.S. 1 (1981). The Court 
there noted the contractual nature of Spending Clause 16 
enactments and the fact that such enactments frequently 
impose substantial financial and administrative burdens 
on State and local governments. Where Congress seeks 
to impose “affirmative obligations” on the States under 
its spending power, the Court concluded that it must do 
so clearly and unambiguously. See Pennhurst, 451 U.S. 
at 16-17 (emphasis in original).17

15 The court of appeals also relied on the decision of the former 
Fifth Circuit in Drayden v. Needville Indep. School Dist., 642 F.2d 
129 (5th Cir. 1981), which rejected a claim for backpay under Title 
VI. This was error. After Drayden was decided, this Court unani­
mously ruled that a victim of intentional employment discrimination 
at the hands of a recipient of federal financial assistance may recover 
backpay as compensation. Darrone, 465 U.S. at 630-31. Thus 
Dray den’s rejection of any “right to recover backpay or other 
losses,” and its sweeping assertion that the “private right of action 
allowed under Title VI encompasses no more than an attempt to have 
any discriminatory activity ceased,” 642 F.2d at 133, have no current 
vitality.

18 The Spending Clause, U.S. Const, art. I, § 8, cl. 1, states that 
Congress “shall have Power . . .  to pay the Debts and provide for 
the common Defence and general Welfare of the United States.”

17 The Pennhurst Court found support for its contractual analysis 
of Spending Clause legislation in Justice Cardozo’s opinion for the 
Court in Steward Machine Co. v. Davis, 301 U.S. 548, 585-98 (1937). 
In Steward Machine, the Court upheld the constitutional validity of 
the federal Social Security tax system over the complaining tax­



16

Applying these principles in Guardians, 463 U.S. at 
596-97, Justice White (joined by Chief Justice Rehn- 
quist) expressed the view that only a prospective injunc­
tion should issue against a municipality whose hiring 
criteria were found to have excluded a disproportionate 
number of minority applicants, allegedly in unintentional 
violation of Title VI. Justice White reasoned that, in a 
case of unintentional discrimination, the defendant can­
not properly be said to have violated the contractual 
conditions placed on its receipt of federal funds until 
such time as a court has identified the discriminatory 
impact of its conduct and announced what further costs 
and obligations it must undertake in order to comply 
with the law. He concluded that retrospective relief is 
inappropriate under those circumstances, because the re­
cipient of funds—presented, for the first time, with a 
clear statement of the duties that it must assume should 
it continue to accept federal monies—is entitled to make 
an informed choice: The recipient may reject the con­
tractual conditions by withdrawing from the federal as­
sistance program entirely, see Rosado v. Wyman, 397 
U.S. 397, 420-21 (1970), or it may “voluntarily and 
knowingly” accept those conditions, “cognizant of the 
consequences of [its] participation” in the program, Penn- 
hurst, 451 U.S. at 17. Finally, Justice White noted that 
the analysis he derived from Pennhurst and Rosado was 
roughly analogous to the Eleventh Amendment’s general 
prohibition against retroactive relief in a federal-court 
action against a State official. See Guardians, 463 U.S. 
at 604 (citing Edelman v. Jordan, 415 U.S. 651, 665-67 
(1974)).

Five members of the Court disagreed with the remedial 
limitations proposed by Justice White, arguing that the

payers’ objection that Congress, by conditioning certain grants to 
the States on their own enactment of unemployment compensation 
laws, had resorted to “coercion of the States in contravention of the 
Tenth Amendment or of restrictions implicit in our federal form of 
government.” Id. at 585.



17

Eleventh Amendment was inapplicable and that Penn- 
hurst—itself an outgrowth of State sovereign immunity- 
doctrine—addresses only the specificity with which Con­
gress must legislate under the Spending Clause in order 
to create rights that are judicially enforceable against 
the States, and does not limit the remedies available when 
those rights have been violated.18 Justices Stevens, Bren­
nan, and Blackmun, as well as Justice Marshall in a sep­
arate opinion, rejected any inflexible rule limiting the 
remedies available under Title VI. See Guardians, 463 
U.S. at 628-33, 636-38. Justice O’Connor, for the same 
reasons, rejected the proposed distinction between pro­
spective and retrospective equitable relief, but found it 
unnecessary to address the availability of monetary dam­
ages, see id. at 612 & n.l, because she concluded that no 
violation of law had been established. And Justices 
White and Rehnquist cautioned that a Pennhurst con­
tractual analysis might well lead to the opposite result 
in a Title VI case involving intentional discrimination, 
where there is “no question as to what the recipient’s 
obligation under the program was and no question that 
the recipient was aware of that obligation.” Id. at 597. 
In such situations, “it may be that the victim of the 
intentional discrimination should be entitled to a com­
pensatory award . . . .” Id.

Pennhurst does not, as the court of appeals believed, 
prohibit the relief sought here.19 Respondents’ alleged

18 The majority’s disagreement with Justice White over the mean­
ing and limits of Pennhurst mirrors the debate that divided the 
Seventh Circuit panel in Lieberman v. University of Chicago, 660 
F.2d 1185 (7th Cir. 1981), cert, denied, 456 U.S. 937 (1982). See id. 
at 1189-92 (Swygert, S.J., dissenting).

19 The court of appeals assumed that ‘'Title IX, like Title VI, is 
Spending Clause legislation,” Cert. Pet. App. 11, and therefore found 
“important guidance” in Justice White’s application of Spending 
Clause principles in Guardians. But in Guardians the parties had 
not briefed the question of Title Vi’s constitutional origins, because



18

violation lies not in any failure to predict what hidden
obligations and duties a court might declare to be im­
plicit in Title IX, cf. Guardians, 463 U.S. at 597, but in 
a willful disregard of a clear and unambiguous statutory 
command. Where a recipient of federal funds has inten­
tionally violated the unequivocal congressional mandate

they, like the Congresses that enacted Title VI and Title IX, had no 
reason to anticipate that the answer to that question would affect 
the availability of particular remedies. In fact, there is compelling 
evidence that the 88th Congress enacted Title VI pursuant to Section 
5 of the Fourteenth Amendment as well as its Article I power to 
spend for the general welfare. See 110 Cong. Rec. 1529 (1964) 
(Rep. McCulloch) (“ [T]he Federal Government, through Congress, 
certainly has the authority, pursuant to the 14th amendment, to 
withhold Federal financial assistance where such assistance is ex­
tended in a discriminatory manner.”) ; H.R. Rep. No. 914, 88th 
Cong., 1st Sess. pt. 2, at 1 (1963) (“ [N]ot since Reconstruction has 
Congress enacted legislation fully implementing the [Fourteenth 
Amendment]. A key purpose of the bill, then, is to secure to all 
Americans the equal protection of the laws of the United States 
and the several states.”) ; 110 Cong. Rec. 1527 (1964) (Rep. Celler) 
(suggesting that, although Title VI is undoubtedly valid as an exer­
cise of the spending power, the Fifth and Fourteenth Amendments 
may of their own force prohibit the expenditure of public funds to 
support discriminatory programs and activities) ; id. at 13,333 (Sen. 
Ribicoff) (stating that Title VI enacts procedures for enforcing the 
Fourteenth Amendment). See also Regents of the Univ. of Cali­
fornia v. Bakke, 438 U.S. 265, 285-87 (1978) (opinion of Powell, J.).

There are many reasons, including the evolutionary nature of 
constitutional doctrines, that might lead Congress to invoke more 
than one of its constitutional powers in enacting civil rights or other 
remedial legislation. See Note, The Eleventh Amendment and State 
Damage Liability Under the Rehabilitation Act of 1973, 71 Va. L. 
Rev. 655, 679 & nn.174-77 (1985) (“Because at the time the [1964] 
Civil Rights Act was drafted, Congress could enforce the fourteenth 
amendment only against state governments, Congress applied Title 
VI to private recipients of federal aid through its broad article I 
powers.” ) (citing, inter alia, The Civil Rights Cases, 109 U.S. 3 
(1883)). For the courts to limit the reach of a statute based on 
their j udgment as to the predominant source of constitutional power 
invoked would effectively deny Congress its ability to base legislation 
on more than one.



19

accompanying those funds, the recipient should be held 
to the terms of its bargain and should “make whole” the 
victim of its misconduct.20 The time for the recipient 
to shed an unwanted obligation not to discriminate, and 
to avoid liability for an intentional breach of that obliga­
tion, has long since past.

Pennhurst also does not control the result here because, 
three years after the Court decided Guardians, Congress 
explicitly rejected the importation of Eleventh Amend­
ment principles into Title IX litigation. In the Civil 
Rights Remedies Equalization Act of 1986 (“Remedies

20 The United States, as amicus curiae, posits a distinction between 
permissible and impermissible make whole relief that turns on 
whether the relief “would threaten ‘a potentially massive financial 
liability’ ” or whether, instead, it “ ‘merely requires the [defendant] 
to belatedly pay expenses that it should have paid all along.’ ” Brief 
for the United States in Support of the Petition for Certiorari at 
19 & n.17 (citations omitted). That distinction would, for no ap­
parent reason, elevate the State sovereignty concerns noted in 
Pennhurst (e.g., that a court should not lightly require the States 
to assume “open-ended and potentially burdensome obligations,” 
451 U.S. at 29) into a free-standing rule of statutory construction 
favoring restitutionary remedies over legal damages. There is no 
valid basis for such a rule. This Court’s Eleventh Amendment cases 
draw no distinction between compensatory damages and restitution 
of benefits wrongly withheld. See Fitzpatrick v. Bitzer, 427 U.S. 
445, 452 (1976) (an award of retroactive retirement benefits is a 
“damages award”). Nor does any such distinction follow, as the 
United States suggests, from Title IX’s references to voluntary 
compliance with the law.

As the United States correctly notes, Title IX by its terms pro­
hibits three distinct forms of misconduct by recipients of federal 
aid. See Brief for the United States in Support of the Petition for 
Certiorari at 15-16. A wrongful “exclusion from participation” may 
sometimes be cured by a prospective injunction, and an unlawful 
“denial of benefits” may sometimes be cured by relief in the nature 
of restitution. But the rule proposed by the United States would 
often provide no judicial remedy at all for having been “subjected 
to discrimination” in violation of Title IX. Such a gap in the stat­
ute’s coverage would be wholly irrational.



20

Act”),21 22 Congress not only eliminated any grounds for 
withholding retroactive relief under Title IX, but also 
rejected any distinction between legal and equitable relief.

Congress enacted the Remedies Act as part of the 
Rehabilitation Act Amendments of 1986, in response to 
this Court’s decision in Atascadero State Hosp. v. Scanlon, 
473 U.S. 234 (1985).22 The Act contains two substantive 
provisions. The first, 42 U.S.C. § 2000d-7 (a) (1), with­
draws the Eleventh Amendment immunity of the States 
under Title IX and related statutes. The second, 42 
U.S.C. § 2000d-7(a) (2), goes further. Eschewing any 
distinction between legal and equitable relief under Title 
IX, the Remedies Act clarifies that, in a Title IX suit 
against a State, a federal court may provide “remedies 
both at law and in equity” :

In a suit against a State for a violation of a statute 
referred to in paragraph (1), remedies (including 
remedies both at law and in equity) are available' 
for such a violation to the same extent as such reme­
dies are available for such a violation in the suit 
against any public or private entity other than a 
State.23

Congress obviously understood that remedies “at law” 
are available under Title IX, and acted to ensure that

21 Pub. L. No. 99-506, § 1003, 100 Stat. 1807, 1845 (1986) (codi­
fied at 42 U.S.C. § 2000d-7 (1988)).

22 In Atascadero, the plaintiff sought “retroactive monetary relief” 
for an allegedly discriminatory refusal to hire—apparently the same 
equitable remedy approved in Darrone, 465 U.S. at 631—against two 
agencies of the State of California. This Court held the claim barred 
by the Eleventh Amendment.

23 42 U.S.C. § 2000d-7(a)(2) (1988). The statutes “referred to 
in paragraph (1)” of this subsection are Section 504 of the Rehabili­
tation Act, Title IX of the Education Amendments of 1972, the Age 
Discrimination Act of 1975 (42 U.S.C. §6101 et seq.), Title VI of 
the Civil Rights Act of 1964, and “the provisions of any other 
Federal statute prohibiting discrimination by recipients of Federal 
financial assistance.” None of the enumerated statutes textually 
provides a damages remedy.



21

those remedies will be available against public as well 
as private defendants. If, as Respondents here contend, 
remedies “at law” are never available under Title IX, 
then the language chosen by Congress is effectively deleted 
from the statute. Such a result is strongly disfavored. 
See Rosado, 397 U.S. at 415 (“courts should construe 
all legislative enactments to give them some meaning”) ; 
United States v. Menasch, 348 U.S. 528, 538-39 (1955) 
(courts should “give effect, if possible, to every clause 
and word of a statute”) ; 2A N.J. Singer, Sutherland 
Statutory Construction § 46.06, at 104 (4th ed. 1984).

The legislative history of the Remedies Act further 
confirms that Congress understood that the federal courts 
were, and intended that they remain, free to provide a 
damages remedy under Title IX. Congress had assumed, 
before Atascadero, that money damages were available 
against the States, and a fortiori that money damages 
were available against other public entities and private 
parties. Thus, when Congress acted to “equalize” the 
remedies available against the States, it did so by “ex­
plicitly providing] that in a suit against a State for 
a violation of any of these statutes, remedies, including 
monetary damages, are available to the same extent as 
they would be available for such a violation in a suit 
against any public or private entity other than a State.” 
S. Rep. No. 388, 99th Cong., 2d Sess. 28 (1986) (empha­
sis added) ,24

24 If, as the court of appeals believed, the Remedies Act “only elimi­
nates the sovereign immunity of States under the eleventh amend­
ment,” Cert. Pet. App. 10 (emphasis added), then the entire text 
of paragraph (a)(2) of the Act is simply read out of the statute. 
Compare 42 U.S.C. § 2000d-7(a) (1) (“A State shall not be immune 
under the Eleventh Amendment . . . .” ) with id. § 2000d-7(a) (2) 
(“remedies (including remedies both at law and in equity) are 
available . .  . .”). The Senate Report confirms that paragraph (a) (2) 
was intended to have independent significance. See S. Rep. No. 99- 
388, at 28 (“ [T]he Rehabilitation Act Amendments of 1986 provide 
that states shall not be immune under the Eleventh Amendment from 
suit in Federal court. . . . Section 1003 also explicitly provides that



22

Senator Cranston, the author of the Remedies Act, 
voiced its underlying premise—the need for a federal 
damages remedy—quite plainly in explaining the urgency 
of its enactment.25 He explained that the result in Atas­
cadero was unacceptable because it left victims of dis­
crimination by the States with only two choices: a “fed­
eral suit for an injunction against individual State offi­
cials” or “a suit in State court for damages.” 132 Cong. 
Rec. 28,623 (1986) (emphasis added). He then cogently 
explained how the federal courts’ inability or refusal to

in a suit against a State for a violation of any of these statutes, 
remedies, including monetary damages, are available [against the 
State] . . . .” ).

Moreover, if Respondents’ view were to prevail, then the 99th 
Congress, despite its reference to “remedies both at law and in 
equity,” accomplished no more than to make retroactive equitable 
relief available in private actions in federal courts against the 
States; prospective relief was already available through the simple 
expedient of suing the responsible State official rather than the 
State itself, under the doctrine of Ex parte Young, 209 U.S. 123 
(1908). See Edelman v. Jordan, 415 U.S. 651, 664 (1974) (State 
official prospectively enjoined to comply with federal regulations). 
Congress plainly believed that it was accomplishing more than this.

25 The Remedies Act was incorporated into Title X of the Rehabili­
tation Act Amendments of 1986 after being offered as an amendment 
to the Senate bill by Senator Cranston. See S. Rep, No. 99-388, at 
27. The original House bill (H.R. 4021) contained no comparable 
provision, but Senator Cranston’s language was adopted by the 
Conference Committee without any material change, and the House 
passed the resulting version of H.R. 4021 containing Senator 
Cranston’s provision by a vote of 408-0. See 132 Cong. Rec. 28,094- 
95 (1986).

Because the Conference Committee Report does not refer to Sena­
tor Cranston’s amendment except to clarify its effective date, see 
H.R. Conf. Rep. No. 955, 99th Cong., 2d Sess. 78-79 (1986), and 
because the bill originally reported by the House Education and 
Labor Committee contained no equivalent provision, the only con­
temporaneous explanations of Congress’s choice of the words “reme­
dies both at law and in equity” are those in the Senate Report and 
those offered on the Senate floor by Senator Cranston, the amend­
ment’s author and primary sponsor.



23

award damages would thwart the remedial objectives of 
the civil rights laws:

As to the limit on Federal remedies, litigation in­
volving a claim of discrimination often takes years 
to resolve. Thus, where the [victim] is seeking em­
ployment or is trying to pursue an education or to 
participate in a project having only a 2- or 3-year 
life, an injunction may come too late to be [of] 
value in remedying the harm done through the un­
lawful discrimination. In a very real sense, the 
availability of only injunctive relief postpones the 
effective date of the antidiscrimination law, with 
respect to a State agency, to the date on which the 
court issues an injunction because there is no remedy 
available for violations occurring before that date.

Id. That is the unacceptable result that Congress sought 
to foreclose when it enacted the Remedies Act. Yet it 
is exactly the result that would follow from the court of 
appeals’ holding in this case.

The United States offers a contrary reading of Senator 
Cranston’s explanatory statement. Truncating his re­
marks beyond recognition, the Government asserts that 
Senator Cranston “carefully reserved” the question 
whether damages are available under Title IX. Brief for 
the United States in Support of the Petition for Cer­
tiorari at 20 n.18. That assertion is baffling. If the 
Senator did not believe that legal damages were recover­
able against private parties, why then did he assume 
them to be recoverable against the States in their own 
courts? And if Congress did not intend that full retro­
active relief be made available to victims of unlawful 
discrimination, why then did it reject the States’ con­
stitutional immunity as impermissibly “postpon [ing] 
the effective date of the antidiscrimination law”?

The Government’s casual dismissal of the Remedies 
Act not only turns Senator Cranston’s statement on its 
head, but also undermines the Government’s own pro­
fessed goal of effectuating the intent of Congress. If



24

the Remedies Act does nothing more, it forcefully demon­
strates Congress’s intent that the full range of the fed­
eral courts’ remedial powers be available to compensate 
victims of unlawful discrimination. In the Remedies Act, 
Congress acted to overcome a constitutional barrier that 
prevented the courts from awarding damages under Title 
IX. If another barrier is to be erected, it cannot be done 
in the name of congressional Intent.

CONCLUSION

For these reasons, the judgment of the court below 
should be reversed.

Respectfully submitted,

William T. Lake 
Counsel of Record 

David R. H ill 
Stuart Cane
Wilmer, Cutler & P ickering * 
2445 M Street, N.W.
Washington, D.C. 200B7 
(202) 663-6000
William H. Brown III 

Co-Chairman 
Herbert M. Wachtell 

Co-Chairman 
Norman Redlich 

Trustee
Barbara R. Arnwine 
Thomas J. Henderson 
Paul H oltzman 
Lawyers’ Committee for 

Civil R ights Under Law 
1400 Eye Street, N.W. 
Washington, D.C. 20005 

August 14,1991 (202) 371-1212

* Alexandra B. Klass, a student at the University of Wisconsin 
Law School, and Lisa M. Winston, a student at Harvard Law School, 
assisted in the preparation of this brief.