Litman v. George Mason University, CA-97-1755-A.

• Decision Date: 07 August 2001
• Docket Number: No. CA-97-1755-A.,CA-97-1755-A.
• Citation: 156 F.Supp.2d 579
• Parties: Annette M. LITMAN, Plaintiff, v. GEORGE MASON UNIVERSITY, Defendant.
• Court: U.S. District Court — Eastern District of Virginia

Page 579

156 F.Supp.2d 579

Annette M. LITMAN, Plaintiff, v. GEORGE MASON UNIVERSITY, Defendant.

No. CA-97-1755-A.

United States District Court, E.D. Virginia, Alexandria Division.

August 7, 2001.

Annette M. Litman, Reston, VA, Pro se.

William E. Thro, Special Assistant Attorney General, Newport News, VA, for Defendant.

MEMORANDUM OPINION

CACHERIS, District Judge.

Before the Court is an action brought pursuant to Title IX of the Education Amendments of 1972, 20 U.S.C. § 1681 et seq. ("Title IX"), alleging that a state-controlled university's administration and faculty retaliated against a student for filing a discrimination complaint. Once again, the Court is presented with a novel question: whether the Supreme Court's recent decision in Alexander v. Sandoval, a Title VI case, bars the plaintiffs claim for Title IX retaliation.¹ Defendant George Mason University has filed a Motion to Dismiss on that ground, and Plaintiff Litman has filed a Motion to Amend her 42 U.S.C. § 1983 claims. For the reasons stated below, the Court will grant the Motion to Dismiss and deny the Motion to Amend.

I.

Plaintiff Annette M. Litman was a student at George Mason University ("GMU") for approximately one year, from mid-1995 until mid-1996, when GMU expelled her after a hearing. GMU is a state-created university "subject at all times to the control of the [Virginia] General Assembly." Va.Code Ann. § 23-91.24. Moreover, the parties agree that GMU is a recipient of federal education funding within the meaning of Title IX, 20 U.S.C. § 1681(a).² See 20 U.S.C. § 1687.

The Supreme Court has recognized that Title IX carries an implied private right of action, Cannon v. Univ. of Chicago, 441 U.S. 677, 99 S.Ct. 1946, 60 L.Ed.2d 560 (1979), which permits students to recover damages for discriminatory conduct engaged in by their professors. Franklin v. Gwinnett County Pub. Sch., 503 U.S. 60, 75-76, 112 S.Ct. 1028, 117 L.Ed.2d 208 (1992). Last year, this Court upheld Ms. Litman's private right of action to bring a Title IX retaliation claim. It is this proposition which GMU again challenges today.

In the recent case of Alexander v. Sandoval, 531 U.S. 1049, 532 U.S. 275, 121 S.Ct. 1511, 149 L.Ed.2d 517 (2001), the State of Alabama argued that there is no private right of action to enforce a disparate impact regulation promulgated under Title VI of the Civil Rights Act of 1964 ("Title VI"), and the Supreme Court agreed. The Court acknowledged that Congress has ratified Cannon's holding that there is an implied private cause of action to enforce Title IX. Sandoval, 531 U.S. at ___, 532 U.S. at ___, 121 S.Ct. at 1516; see 42 U.S.C. § 2000d-7; Franklin, 503 U.S. at 72, 112 S.Ct. 1028. For the first time, however, the Court limited that cause of action to enforcing rights actually articulated by Congress, not a federal agency. At the same time, the Supreme Court recognized but did not address the second issue raised by GMU, i.e., whether an implied private cause of action against the States is inconsistent with the clear statement rule in Pennhurst State School & Hospital v. Halderman, 451 U.S. 1, 10, 101 S.Ct. 1531, 67 L.Ed.2d 694 (1981).

Pursuant to Federal Rule of Civil Procedure 12(b)(1), GMU has moved to dismiss Count II of the Complaint, which alleges retaliation in violation of Title IX, arguing that the Supreme Court's holding in Sandoval, by extension, bars enforcement by Ms. Litman of the anti-retaliation regulation passed pursuant to Title IX. Thus, GMU argues, the Court lacks subject matter jurisdiction over the retaliation claim. Ms. Litman has not filed a brief in opposition. GMU opposes Ms. Litman's Motion to Amend her Complaint.

II.

The federal courts have original subject matter jurisdiction over any civil action "authorized by law to be commenced by any person ... [t]o recover damages or to secure equitable or other relief under any Act of Congress providing for the protection of civil rights...." 28 U.S.C. § 1343(a)(4). A Rule 12(b)(1) motion to dismiss "raises the question of the federal court's subject matter jurisdiction over the action." 5A Charles A. Wright and Arthur R. Miller, Federal Practice and Procedure 2d § 1350 at 194 (1990). A party may raise the defense of the court's lack of subject matter jurisdiction at any time. See Capron v. Van Noorden, 6 U.S. (2 Cranch) 126, 2 L.Ed. 229 (1804); Fed. R.Civ.P. 12(h)(3). If, upon the suggestion of a party or sua sponte, the court determines that it lacks subject matter jurisdiction, it "shall dismiss the action." Fed. R.Civ.P. 12(h)(3).

The plaintiff has the burden of proving that subject matter jurisdiction exists. See Richmond, Fredericksburg & Potomac R. Co. v. United States, 945 F.2d 765, 768 (4th Cir.1991); Wright and Miller, § 1350 at 226. The court should grant the Rule 12(b)(1) motion to dismiss "only if the material jurisdictional facts are not in dispute and the moving party is entitled to prevail as a matter of law." Id. In passing on a motion to dismiss under Rule 12(b)(1), "the complaint will be construed broadly and liberally, ... but argumentative inferences favorable to the pleader will not be drawn." Wright and Miller, § 1350 at 218-19.

III.

Like Title VI of the Civil Rights Act of 1964, which prohibits race discrimination, Title IX was passed pursuant to the Spending Clause. See Gebser v. Lago Vista Indep. School Dist., 524 U.S. 274, 286-88, 118 S.Ct. 1989, 141 L.Ed.2d 277 (1998). The Supreme Court has held that there is an implied right of action to enforce the substantive guarantees of Spending Clause legislation. See Cannon, 441 U.S. at 694-99, 99 S.Ct. 1946. Congress intended that Title IX would be interpreted and enforced in the same manner as Title VI. Cannon, 441 U.S. at 696, 99 S.Ct. 1946. As is discussed below, the Secretary of Education has prohibited retaliation for filing a complaint of gender discrimination under Title IX.

In Sandoval, the Supreme Court considered whether the private right of action to enforce substantive guarantees in Title VI extended to disparate impact regulations promulgated pursuant to statutory authority. At issue in Sandoval was a state policy that driver's license examinations be administered in English. The source of the right being enforced proved to be an essential factor in whether an individual could enforce it: was the right found in the statute itself, or was it created by regulation (albeit a regulation authorized by statute and that effectuated the statutory rights)?

Key to the Supreme Court's analysis were analytical principles that prohibit courts from implying a private right of action that Congress has not permitted. As the Court stated:

Like substantive federal law itself, private rights of action to enforce federal law must be created by Congress.... The judicial task is to interpret the statute Congress has passed to determine whether it displays an intent to create not just a private right but also a private remedy.... Statutory intent on this latter point is determinative.... Without it, a cause of action does not exist and courts may not create one, no matter how desirable that might be as a policy matter, or how compatible with the statute.

Sandoval, 531 U.S. at ___, 532 U.S. at ___, 121 S.Ct. at 1519 (citations omitted). The Court continued, "[w]e therefore begin (and find that we can end) our search for Congress's intent with the text and structure of Title VI." Id. at 1520. Only the substantive rights contained in the statute itself can be enforced through a private right of action; rights created by agency regulation cannot. Id. at 1521. Thus, in Section 601 of Title VI, 42 U.S.C. § 2000d, which decrees that "[n]o person ... shall ... be subjected to discrimination" by a recipient of federal funding, the Court found specific, rights-creating language enforceable by a private right of action.³ Id. By contrast, Section 602 provides that "[e]ach Federal department and agency ... is authorized and directed to effectuate the provisions of [§ 601]." Id.; 42 U.S.C. § 2000d-1. Pursuant to section 602, both the United States Department of Justice and the Department of Transportation promulgated regulations that forbade funding recipients from engaging in any activity having a disparate impact on racial groups. Id. at 1515; 28 C.F.R. § 42 .104(b)(2); 49 C.F.R. § 21.5(b)(2). Because section 601 prohibits only intentional discrimination,⁴ the Court concluded that the right to be free from disparate impact discrimination was solely a product of agency regulation, not the statute itself. Id. at 1517. Again, courts are not free to infer a private right of action to enforce a right not created by Congress. See, e.g., Massachusetts Mut. Life Ins. Co. v. Russell, 473 U.S. 134, 145, 148, 105 S.Ct. 3085, 87 L.Ed.2d 96 (1985). The Court therefore held that there is no private right of action, under Title VI, to challenge an activity that has a disparate impact on a racial group. Id. at 1523.

As noted above, Title VI and Title IX were both enacted pursuant to Congress's Spending Clause powers, share a similar statutory structure, and are often interpreted in a similar manner. See Gebser, 524 U.S. at 286-88, 118 S.Ct. 1989. Paralleling the structure of Title VI, Title IX contains a provision that creates the substantive right to be free from discrimination "on the basis of sex," 20 U.S.C. § 1681,⁵ as well as a provision empowering federal agencies to "effectuate" the terms of section 1681, 20 U.S.C. § 1682.⁶ Pursuant to the latter provision, regulations enacted in the Title VI context were incorporated by the Department of Education into Title IX. See 34 C.F.R. § 106.71. One of those regulations bars a recipient of federal funding from retaliating against a person who complains of gender discrimination in violation of Title IX. See 34 C.F.R. § 100.7(e).⁷ The Fourth Circuit has recognized that the prohibition against retaliation is the product of a regulation, not contained in the statute itself. Se...