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February 26, 1985


The opinion of the court was delivered by: Aspen, District Judge:


Geraldine Cannon wants to be a physician. She applied ten years ago to seven Illinois medical schools, and each of them rejected her. Still determined to become a doctor, Cannon sued all of these schools in federal court to gain admission. Her ten-year journey through the federal judiciary has taken her through several district courts, the Seventh Circuit and the Supreme Court. Every suit she brought was ultimately dismissed for one reason or another. Cannon is here again. This time she has sued all seven medical schools in one action, alleging different theories of recovery than before, but alleging the same underlying facts as before. The seven defendants, experiencing deja vu, have moved to dismiss the case under the doctrine of res judicata. For the reasons spelled out below, we grant the motions to dismiss.


The undisputed history of Cannon's quest has been detailed in earlier opinions. 559 F.2d 1063 (7th Cir. 1976); 710 F.2d 351 (7th Cir. 1983). We will only summarize this history here.

In late 1974 Cannon applied for admission to the 1975 entering class of every medical school in Illinois, each of which is a named defendant in this suit. Every school rejected her application. She was a 39-year old nurse at the time. As a matter of policy, each of these schools either rejected or disfavored applicants over 30.

In the summer of 1975, Cannon sued two of these schools, the University of Chicago ("Chicago"), No. 75 C 2724, and Northwestern University ("Northwestern"), No. 75 C 2402. She alleged, among other things, sex discrimination in violation of Title IX of the Education Amendments of 1972, 20 U.S.C. § 1681 et seq., age discrimination in violation of the Age Discrimination in Employment Act, 29 U.S.C. § 621 et seq., and violations of constitutional rights under 42 U.S.C. § 1983. Her theory was that the school's age criteria exerted a disparate impact on women applicants, who were more likely to be older than male applicants because of decisions to bear and raise children.*fn1 The district court dismissed the complaint for failure to state a claim upon which relief could be granted. 406 F. Supp. 1257 (N.D.Ill. 1976) (Hoffman, J.) The most relevant part of the decision was that Title IX contained no private right of action.*fn2 406 F. Supp. at 1259. The Seventh Circuit affirmed. 559 F.2d 1063 (1976). The Supreme Court reversed, holding that Title IX created an implied right of action. 441 U.S. 677, 99 S.Ct. 1946, 60 L.Ed.2d 560 (1979). The case was remanded for consideration of the Title IX claim only. In an oral order dated May 23, 1980, the district court again dismissed the case under Fed.R.Civ.P. 12(b)(6), this time holding that Title IX redresses intentional sex discrimination only, and that Cannon had failed to state a claim of intentional discrimination. The Seventh Circuit affirmed, 648 F.2d 1104 (1981), and the Supreme Court denied certiorari. 460 U.S. 1013, 103 S.Ct. 1254, 75 L.Ed.2d 482 (1983). Her avenues of appeal exhausted, Cannon returned to the district court to seek post-judgment relief under Fed.R.Civ.P. 60. This Court*fn3 denied her motion. She did not appeal.

Cannon sued the remaining five schools in one action filed on November 29, 1979. No. 79 C 5009. She sought monetary and injunctive relief under Title IX and also sued the two state universities under 42 U.S.C. § 1983. She had no better luck with this suit. On October 13, 1981, Judge Robson dismissed the complaint for failure to state a claim. The Court held that the doctrine of laches barred the suit as to all defendants except Chicago Medical School ("Chicago-Med"), which had not posed the defense. Leave was granted to file an amended complaint against Chicago-Med, but leave to amend was denied as to the other defendants. On June 15, 1982, Judge Robson modified the earlier order. Chicago-Med, too, was dismissed because of laches. The dismissal of the two state schools, University of Illinois ("Illinois") and Southern Illinois University ("SIU"), was vacated, but summary judgment was entered in favor of those two schools on the grounds of mootness. The Seventh Circuit affirmed, but on the grounds of laches as to all five schools. 710 F.2d 351 (7th Cir. 1983). Cannon's petition for a rehearing was denied, and she did not seek a writ of certiorari.

Cannon filed this suit on September 18, 1984, joining all seven schools as defendants. The material facts in the complaint are the same as those in the earlier cases: she challenges her rejections as being sex discrimination because of the age criteria. Cannon's legal theories now differ somewhat. The complaint contains two "counts," which both allege contract theories. Count I alleges that when Cannon applied to each of the schools and filed her application fee, she had contracted with them that they would consider her application according to their written policies, unless those policies violated public policy. Each defendant allegedly breached the contract by relying on the age criteria, which violated public policy.

Count II rests on a third-party beneficiary theory. Allegedly, when the federal government gave money to each school, each school agreed to comply with Title IX. Applicants for admission, including Cannon, were allegedly third party beneficiaries of this "contract." Each school breached its contract with the government when it allegedly violated Title IX in denying Cannon admission.

Cannon seeks injunctive relief and damages. The defendants have moved to dismiss, raising the defense of res judicata.


Before addressing the res judicata issue, we briefly discuss a threshold question concerning the Court's subject matter jurisdiction. Although neither side questioned our jurisdiction, it is of course proper, indeed required, that the Court raise any questions going to our jurisdiction over the case.

It appears that the well-pleaded complaint states two state law claims for breach of contract. While the causes of action are apparently grounded in state law,*fn4 the contract theories will inevitably depend on an interpretation of federal law, that is, whether "public policy," as expressed in Title IX, was offended by Cannon's rejection. Cannon alleges in her complaint that the suit "arises under" Title IX, thus giving this Court jurisdiction under 28 U.S.C. § 1331.*fn5 Our threshold question, then, is whether Cannon's contract claims do in fact "arise under" Title IX. This question is not simple, since the doctrine interpreting the meaning of "arising under" is a quagmire, to say the least. See generally 13B C. Wright, A. Miller & E. Cooper, Federal Practice & Procedure, § 3562 (1984).

Because state law creates Cannon's causes of action, her complaint fails Justice Holmes' threshold test that "a suit arises under the law that creates the cause of action." American Well Works Co. v. Layne & Bowler Co., 241 U.S. 257, 260, 36 S.Ct. 585, 586, 60 L.Ed. 987 (1916). But Justice Holmes' test defines cases which clearly fall within federal jurisdiction, it does not necessarily describe which cases are outside. See, e.g., Franchise Tax Bd. v. Construction Laborers, 463 U.S. 1, 103 S.Ct. 2841, 2846, 77 L.Ed.2d 420 (1983). A case may "arise under" federal law where the well-pleaded complaint reveals that the "vindication of a right under state law necessarily turn[s] on some construction of federal law." Id. at 9, 103 S.Ct. at 2846, citing Smith v. Kansas City Title & Trust Co., 255 U.S. 180, 41 S.C. 243, 65 L.Ed. 577 (1921); see also T.B. Harms Co. v. Eliscu, 339 ...

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