Appeal from the United States District Court for the Northern District of Illinois, Eastern Division. No. 79-C-3533 -- John Powers Crowley, judge .
Before Swygert, Senior Circuit Judge, Pell, Circuit Judge, and Campbell,*fn* Senior District Judge.
Plaintiff, Judy Lieberman, filed this lawsuit against the University of Chicago, its medical school (The Pritzker School of Medicine), the Dean of Students of the Division of Biological Sciences, and the Medical School Admissions Committee, claiming that she was denied admission to the medical school as a result of sexual discrimination in violation of Title IX of the Education Amendments of 1972, 20 U.S.C. § 1681(a).*fn1 In her complaint, plaintiff sought declaratory and injunctive relief as well as compensatory and punitive damages. Defendants' answer admits that the University of Chicago and its medical school receive federal financial assistance, but denies the allegations of discrimination.
Plaintiff had applied for admission to the 1977 entering class at the Pritzker School of Medicine. At that time she lived in Oak Park, Illinois with her husband and desired to remain in the Chicago area. Although placed on the "waiting list" at Pritzker, she was never offered admission and eventually accepted a place in the 1977 entering class at Harvard Medical School.*fn2 The plaintiff seeks compensatory damages for, inter alia, her moving expenses, pain and suffering, and loss of consortium.
The defendants moved for and obtained summary judgment. The District Court concluded that, based on the plaintiff's admitted intention to complete her medical education at Harvard, the request for injunctive relief was moot. The plaintiff does not attack that decision on appeal. However, the court also determined that the prayer for declaratory relief was moot, and that, as a matter of law, Title IX does not provide a damage remedy. The plaintiff appeals both of those decisions.
The issue of whether Title IX provides a damages remedy is conceded by the parties to be a question of first impression. The District Court based its decision on Cannon v. University of Chicago, 441 U.S. 677, 99 S. Ct. 1946, 60 L. Ed. 2d 560 (1979), (hereafter Cannon I) and both sides argue that case as compelling support for their positions. In Cannon I, the court held that Title IX contains an implied private right of action for an individual injured by a violation of 20 U.S.C. § 1681(a), and found injunctive relief appropriate. The question whether the plaintiff was entitled to damages was not addressed.*fn3 The Supreme Court has stated that:
the question whether a litigant has a "cause of action" is analytically distinct and prior to the question of what relief, if any, a litigant may be entitled to receive.*fn4 Davis v. Passman, 442 U.S. 228, 99 S. Ct. 2264, 2274, 60 L. Ed. 2d 846 (1979).
Therefore, while Cannon I is certainly an important source of guidance for the issue before this court, we do not perceive it as dispositive of the question presented.
The exhaustive analysis of the legislative history of Title IX contained in Cannon I provides a foundation for our inquiry here. The legislation had two objects, to avoid the use of federal funds to support discrimination and to provide individual citizens effective protection against such practices, Cannon I, 99 S. Ct. at 1961. Title IX was intended by Congress to be interpreted and applied as Title VI, upon which it was modeled,*fn5 Cannon I, 99 S. Ct. at 1957. Based on that premise this Court recently held, after a thorough analysis, that § 1681(a) only prohibits intentional discriminatory acts, Cannon v. University of Chicago, 648 F.2d 1104 (7th Cir., 1981) (hereafter Cannon II).
Our analysis of Title IX proceeds with the observation that it was part of a bill designed to assist institutions of higher education adjust to a situation of "acute financial distress," 2 U.S.Code Cong. & Admin.News 1972, pp. 2462, 2463. The legislation increased federal funding of higher education, both public and private, by expanding existing programs and initiating others, Ibid. Thus, Title IX, as an integral part of this legislative scheme,*fn6 must be deemed an exercise of Congress' Spending Power, that is, the imposition of the statutory prohibition is justified by the expenditure of federal funds, see Cannon I, 99 S. Ct. at 1963.
In Pennhurst State School and Hospital v. Halderman, 451 U.S. 1, 101 S. Ct. 1531, 67 L. Ed. 2d 694 (1981), the Court provided guidelines for construing implied rights and remedies in the context of funding legislation:
.... Legislation enacted pursuant to the Spending Power is much in the nature of a contract: in return for federal funds, the States agree to comply with federally imposed conditions. The legitimacy of Congress' power to legislate under the Spending Power thus rests on whether the State voluntarily and knowingly accepts the terms of the "contract." (citations omitted) 101 S. Ct. at 1539.
In order to ensure a "meeting of the minds," the conditions to be imposed by Congress must be stated in unambiguous terms. For that reason, the Court in Pennhurst declined to impose certain obligations on the defendants (and create concomitant rights to enforcement for the plaintiffs) despite suggestive language in the legislation. The Court buttressed its decision by noting that it would be inconsistent with the legislative intent of assisting the defendants to fund certain programs to impose additional financial obligations on them.
Both Title IX and its legislative history are silent as to the existence of a damage remedy for sexual discrimination. However, appellant argues that it is a small step from the implied private cause of action created in Cannon I to an implied remedy in damages. But the decision in Cannon I did not significantly alter the conditions upon which the recipients accepted federal funds. The injunctive relief authorized in Cannon I merely permits the courts to require the institutions to comply with one of the unambiguous terms of the agreement. While the Court did expand the class of plaintiffs who could enforce the "contract," the remedy created did not impose any additional burdens on the recipients of the funds.*fn7
However, the implication of a damages remedy would impose a potentially massive financial liability upon the institutions whose "acute financial distress" triggered the legislation.*fn8 Theoretically, this liability could exceed the amount of the federal funds received. In any event, this potential liability would be a significant factor which the recipients would need to consider before it could be said that they had exercised their choice "knowingly, cognizant of the consequences of their participation," Pennhurst, 101 S. Ct. at 1540. Therefore, as a matter of statutory construction, we must assume that if Congress had intended to create a remedy for damages it would have done so explicitly.*fn9
Appellant argues that the implication of a damages remedy would create an extremely effective means of enforcing § 1681. However, as noted previously, we do not perceive that remedy as entirely consistent with the legislative purpose. Furthermore, in light of the implied private cause of action for injunctive relief authorized by Cannon I, coupled with the provision for an award of attorneys' fees contained in 42 U.S.C. § 1988, aggrieved individuals have at least one effective means of enforcement. 20 U.S.C. § 1682 also provides means for federal administrative enforcement. Therefore, based upon the considerations discussed above, we consider it unwise to imply an additional remedy. If a damages remedy is to be created, it should be fashioned by Congress and not by the Courts, thus providing the institutions with ample notice and an opportunity to reconsider their acceptance of federal aid.*fn10
As to the request for declaratory relief, we agree with the District Court that that issue is moot, see Hansen v. Ahlgrimm, 520 F.2d 768 (7th Cir. 1975).
For the above-stated reasons, the judgment of the District Court is affirmed.
SWYGERT, Senior Circuit Judge, dissenting.
I respectfully dissent from a decision which only can be read as an evisceration of the ban against sex ...