The opinion of the court was delivered by: Aspen, District Judge:
MEMORANDUM OPINION AND ORDER
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
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 ...