Jackson v. Birmingham Bd. of Educ., 02-11303.

• Decision Date: 21 October 2002
• Docket Number: No. 02-11303.,02-11303.
• Citation: 309 F.3d 1333
• Parties: Roderick JACKSON, Plaintiff-Appellant, v. BIRMINGHAM BOARD OF EDUCATION, Defendant-Appellee.
• Court: U.S. Court of Appeals — Eleventh Circuit

309 F.3d 1333

Roderick JACKSON, Plaintiff-Appellant, v. BIRMINGHAM BOARD OF EDUCATION, Defendant-Appellee.

No. 02-11303.

United States Court of Appeals, Eleventh Circuit.

October 21, 2002.

Roderick Jackson, Birmingham, AL, pro se.

Valerie L. Acoff, Kenneth L. Thomas, Thomas, Means & Gillis, Birmingham, AL, for Defendant-Appellee.

Appeal from the United States District Court for the Northern District of Alabama.

Before DUBINA, MARCUS and GOODWIN^*, Circuit Judges.

MARCUS, Circuit Judge:

Roderick Jackson appeals the dismissal of his complaint alleging that the Birmingham Board of Education (the "Board") retaliated against him in violation of Title IX of the Education Amendments of 1972 ("Title IX"), 20 U.S.C. § 1681 et seq., and the regulations implementing it. While employed by the Board as the coach of a girl's basketball team, Jackson complained about practices that he believed discriminated against his team in violation of Title IX. The school, he maintains, retaliated against him by removing him from his coaching position. The question before us is whether Title IX implies a private right of action in favor of individuals who, although not themselves the victims of gender discrimination, suffer retaliation because they have complained about gender discrimination suffered by others. After review of the text and structure of the statute, we can discern no congressional intent in Title IX to create by implication such a private cause of action. Accordingly, we affirm the dismissal of Jackson's complaint.

I.

A.

We review de novo an order granting a motion to dismiss the complaint, see McDonald v. S. Farm Bureau Life Ins. Co., 291 F.3d 718, 722 (11th Cir.2002), taking the facts alleged in the complaint as true and construing them in the light most favorable to the plaintiff. See Covad Communications Co. v. BellSouth Corp., 299 F.3d 1272, 1276 n. 2 (11th Cir.2002); Stephens v. Dep't of Health & Human Servs., 901 F.2d 1571, 1573 (11th Cir.1990) ("On a motion to dismiss, the facts stated in appellant's complaint and all reasonable inferences therefrom are taken as true."). "A motion to dismiss is only granted when the movant demonstrates `beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief.'" Harper v. Blockbuster Entm't Corp., 139 F.3d 1385, 1387 (11th Cir.1998) (quoting Conley v. Gibson, 355 U.S. 41, 45-46, 78 S.Ct. 99, 102, 2 L.Ed.2d 80 (1957)).

B.

According to his complaint, Jackson was hired by the Board as a physical education teacher and girls' basketball coach on or about August 1993. He was transferred to Ensley High School in August 1999, where his duties included coaching the girls' basketball team. While coaching at Ensley, Jackson came to believe that the girls' team was denied equal funding and equal access to sports facilities and equipment. He complained to his supervisors about the apparent differential treatment and, shortly thereafter, he began receiving negative work evaluations. Jackson was ultimately relieved of his coaching duties in May 2001, but remains employed as a tenured physical education teacher.

We assume for purposes of this appeal that the Board retaliated against Jackson for complaining about perceived Title IX violations. The only question before us today is whether Title IX provides Jackson a private right of action and a private remedy against the Board for its allegedly retaliatory actions. Conceding that Title IX creates no private rights of action expressly, see Cannon v. Univ. of Chicago, 441 U.S. 677, 683, 99 S.Ct. 1946, 1950, 60 L.Ed.2d 560 (1979) ("The statute does not... expressly authorize a private right of action by a person injured by a violation of § 901."), Jackson claims that such a right is impliedly created by §§ 901 and 902 of Title IX, 20 U.S.C. §§ 1681-82, in conjunction with 34 C.F.R. § 100.7(e), an anti-retaliation regulation promulgated by the Department of Education to enforce Title IX.

Section 901 of Title IX, with certain exceptions not at issue here, provides 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).¹

In section 902, Congress created and authorized an elaborate administrative enforcement scheme for Title IX. See Davis v. Monroe County Bd. of Educ., 526 U.S. 629, 638-39, 119 S.Ct. 1661, 1669, 143 L.Ed.2d 839 (1999).² Pursuant to § 902, any federal department or agency that "is empowered to extend Federal financial assistance to any education program or activity" is "authorized and directed to effectuate the provisions of" § 901. 20 U.S.C. § 1682. To do so, agencies are required to "issu[e] rules, regulations, or orders of general applicability," which do not "become effective unless and until approved by the President." Id. The primary enforcement mechanism that § 902 gives to agencies is cessation of federal funding: "[c]ompliance with any requirement adopted pursuant to this section may be effected ... by the termination of or refusal to grant or to continue assistance...." Id.

There are a number of procedural requirements that must be met, however, before an agency may cut off funding. First, an agency must attempt to obtain voluntary compliance with the requirements it has imposed to enforce § 901: "no ... action shall be taken until the department or agency concerned has advised the appropriate person or persons of the failure to comply with the requirement and has determined that compliance cannot be secured by voluntary means." Id. Second, if an agency fails to obtain voluntary compliance, it must hold a hearing regarding any alleged regulatory violation, because only a "recipient as to whom there has been an express finding on the record, after opportunity for hearing, of a failure to comply with" a regulation enacted pursuant to § 902 may have its funding cut off. Id. Third, even after making an "express finding" of noncompliance, an agency may not cut off funding unless it files "a full written report" to "the committees of the House and Senate having legislative jurisdiction over the program or activity involved" and waits "until thirty days have elapsed after the filing of such report." Id.³

Using the authority vested in it by § 902, the Department of Education promulgated 34 C.F.R. § 100.7(e),⁴ which prohibits retaliation against anyone who complains of a Title IX violation:

No recipient [of federal funds] or other person shall intimidate, threaten, coerce, or discriminate against any individual for the purpose of interfering with any right or privilege secured by section [901 of Title IX] of the Act or this part, or because he has made a complaint, testified, assisted, or participated in any manner in an investigation, proceeding or hearing under this part.

34 C.F.R. § 100.7(e) (emphasis added).

Jackson urges that a private right of action ought to be implied in his favor from the statute and, more particularly, from 34 C.F.R. § 100.7(e). We are unpersuaded. For the reasons we make clear below, we hold that neither Title IX itself nor 34 C.F.R. § 100.7(e) implies a private right of action for retaliation in Jackson's favor.

C.

Our analysis of Jackson's claim is governed in substantial measure by the Supreme Court's recent decision in Alexander v. Sandoval, 532 U.S. 275, 121 S.Ct. 1511, 149 L.Ed.2d 517 (2001), which we explicate fully for three reasons. First, Sandoval distills and clarifies the approach we are obliged to follow in determining whether to imply a private right of action from a statute.⁵ Second, Sandoval resolved a claim under Title VI of the Civil Rights Act of 1964 ("Title VI"), 78 Stat. 252, as amended, 42 U.S.C. § 2000d et seq., which is the model for Title IX and whose language Title IX copies nearly verbatim. See Cannon, 441 U.S. at 694-95, 99 S.Ct. at 1956-57 ("Title IX was patterned after Title VI.... Except for the substitution of the word `sex' in Title IX to replace the words `race, color, or national origin' in Title VI, the two statutes use identical language to describe the benefited class."); see also id. at 694-696 nn. 16 & 19, 99 S.Ct. at 1956-57 nn. 16 & 19 (setting forth the legislative history of Title IX, which, inter alia, notes that "[t]his is identical language, specifically taken from Title VI"). Because we therefore read Titles VI and IX in pari materia, Sandoval's interpretation of Title VI powerfully informs our reading of Title IX. Third, like Jackson, the plaintiffs in Sandoval relied on a regulation promulgated to enforce Title VI as the basis for implying a private right of action.

In Sandoval, the Supreme Court held that Title VI does not imply a right of action for private litigants to sue recipients of federal funds for "disparate impact" violations. See Sandoval, 532 U.S. at 293, 121 S.Ct. at 1523. At issue in Sandoval was the claim that the Alabama Department of Public Safety's policy of administering all tests for drivers' licenses in English only has a discriminatory effect on racial minorities. Section 601 of Title VI provides that "[n]o person in the United States shall, on the ground of race, color, or national origin, be excluded from participation in, be denied the benefits of, or be subjected to discrimination under any program or activity receiving Federal financial assistance." 42 U.S.C. § 2000d. Recognizing that Title VI itself reaches only acts of intentional discrimination, see Alexander v. Choate, 469 U.S. 287, 293, 105 S.Ct. 712, 716, 83 L.Ed.2d 661 (1985), the plaintiff in Sandoval alleged that Alabama's restriction violated 28 C.F.R. § 42.104(b)(2), a Department of Justice regulation promulgated pursuant to § 602 of Title VI,⁶ that forbids recipients of federal funding from "utiliz[ing] criteria or methods of administration which have the effect of subjecting...