CHRISTINE FRANKLIN, PETITIONER V. GWINNETT COUNTY SCHOOL DISTRICT AND WILLIAM PRESCOTT No. 90-918 In The Supreme Court Of The United States October Term, 1990 On Petition For A Writ Of Certiorari To The United States Court Of Appeals For The Eleventh Circuit Brief For The United States As Amicus Curiae This brief is filed in response to the Court's order inviting the Solicitor General to express the views of the United States. TABLE OF CONTENTS Question Presented Statement Discussion Conclusion QUESTION PRESENTED Whether a private party may recover compensatory damages for an allegedly intentional violation of Title IX of the Education Amendments of 1972, 20 U.S.C. 1681 et seq. STATEMENT From 1986 to 1988, petitioner Christine Franklin was a student at North Gwinnett High School in Gwinnett County, Georgia. Respondent Gwinnett County School District operates North Gwinnett High School. In this action, petitioner seeks damages from the School District for allegedly intentional violations of Title IX of the Education Amendments of 1972, 20 U.S.C. 1681 et seq. The court of appeals affirmed the dismissal of the complaint for failure to state a claim, holding that a private plaintiff may not recover legal damages under Title IX. 1. The complaint alleges that petitioner was the victim of persistent sexual advances by a former teacher at Gwinnett High School, Andrew Hill. Hill befriended petitioner in the Fall of 1986, when she was a student in Hill's ninth-grade economics class. /1/ Over the course of the 1986-87 school year, the complaint alleges, Hill directed his conversations with petitioner toward intimate, sexual topics; made various suggestive sexual remarks; kissed petitioner in the school parking lot after she confronted him with rumors that the two were engaged in a sexual relationship; and suggested that petitioner get together with him on a weekend when his wife was out of town. When school resumed after the summer recess, the complaint continues, Hill often approached petitioner between classes, walked with her throughout the school, and excused her from other teachers' classes in order to converse with her. On three occasions, petitioner alleges, Hill had petitioner excused from class, took her to his office or the press box of the school stadium, and engaged in sexual intercourse with her. Compl. Paragraphs 8-13, 17, 21-22, 25-27; Pet. 9-11. The complaint also alleges that other teachers and school authorities became aware of Hill's advances toward petitioner and other female students, but failed to take corrective action. By October 1986, according to the complaint, rumors regarding sexual activity between petitioner and Hill spread throughout the student body and the faculty, and petitioner's boyfriend told respondent William Prescott, the school's band director, that Hill was asking petitioner personal questions. In October 1987, two students advised an assistant principal of personal comments Hill had made to one of them and spoke of "involvement" between Hill and petitioner; the complaint alleges that the assistant principal admonished the students rather than acting on their information. Later, petitioner alleges, another female student complained to a teacher that Hill had made intimate, personal inquiries of her. After the student documented the charge, it was relayed to a guidance counselor, an assistant principal, and ultimately the principal. The principal reported that he had spoken to Hill about the matter. Compl. Paragraphs 14, 19-20, 23-24, 29-31. In February 1988, petitioner told the school's guidance counselor of her sexual activity with Hill, and the guidance counselor in turn advised the principal. The school district began an investigation. After the investigation began, according to the complaint, Prescott urged petitioner to drop the charges. The school district closed the investigation when Hill resigned. Compl. Paragraphs 33-35, 37. Based on these allegations, the complaint asserts two causes of action. Count I alleges that the school district intentionally discriminated against petitioner on account of her sex in violation of Title IX. In support of this claim, the complaint asserts that the school district is a recipient of federal assistance; that Hill's acts "unreasonably interfered with (petitioner's) ability to attend high school and perform her studies and activities" and "created an intimidating, hostile, offensive, and abusive school environment"; that the school district had actual knowledge of Hill's advances toward petitioner and his harassment of two other female students; and that responsible officials intentionally failed to take action against Hill. Compl. Paragraphs 39-50. Among other forms of relief, Count I seeks "compensatory, special, (and) general * * * damages" from the school district. Id. at Paragraph 51. Count II alleges that Hill and Prescott "willfully and intentionally violated (Title IX) by using their position of authority to force (petitioner) to drop the investigation" and that "(b)y failing to reprimand or otherwise discipline Dr. Prescott, (the school district) * * * condoned and ratified the conduct of Dr. Prescott and is responsible therefor." Compl. Paragraphs 55-56. This count also seeks compensatory damages from the school district, as well as from respondent Prescott. Id. at Paragraph 57. /2/ 2. The district court granted respondents' motion to dismiss the complaint for failure to state a claim. Pet. App. 15-21. In response to the motion, petitioner conceded "that the only real issue * * * is whether compensatory relief is available under Title IX." Id. at 17. The court held that it was bound to deny compensatory damages by a former Fifth Circuit decision, Drayden v. Needville Indep. School Dist., 642 F.2d 129 (1981). Pet. App. 17, 18-19. Drayden held that the "private right of action allowed under Title VI (of the Civil Rights Act of 1964, 42 U.S.C. 2000d et seq.) encompasses no more than an attempt to have any discriminatory activity ceased." 642 F.2d at 133. Finding that Drayden was applicable to actions under Title IX and that it had not been modified or limited, the court "decline(d) to enlarge on the existing remedies available under" Title IX. Pet. App. 19. /3/ 3. The court of appeals affirmed. Pet. App. 1-14. The court stated that "it is undisputed that an implied private right of action exists under Title IX." Id. at 5 (citing Cannon v. University of Chicago, 441 U.S. 677 (1979)). Nevertheless, the court continued, "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," and, "(c)onsequently, the existence of a cause of action by no means assures a right to an unlimited array of remedies." Pet. App. 5-6 (internal quotation marks omitted). Like the district court, the court of appeals found that Drayden was "binding precedent" unless overruled by Guardians Ass'n v. Civil Service Comm'n, 463 U.S. 582 (1983), a divided decision applying Title VI to a claim of unintentional discrimination. Pet. App. 6. The court rejected petitioner's contention that Guardians Ass'n implicitly overruled Drayden. While Guardians Ass'n "precludes a cause of action for compensatory damages for unintentional discrimination," the court of appeals explained, "the various opinions of a majority of the Justices simply leave() open the question whether compensatory damages for intentional discrimination may be sought." Pet. App. 9. On that question, the court found "important guidance" in Justice White's opinion in Guardians Ass'n, which suggested that only limited remedies should be implied for violations of statutes enacted pursuant to the Spending Clause. Pet. App. 9-10. Ruling that Title IX is Spending Clause legislation, the court stated that it would "proceed with extreme care when * * * asked to find a right to compensatory relief, where Congress has not expressly provided such a remedy as a part of the statutory scheme, where the Supreme Court has not spoken clearly, and where binding precedent in this circuit is contrary." Id. at 11. The court of appeals concluded that "(b)ecause * * * the Supreme Court has not overruled Drayden either explicitly or implicitly," it was "bound to follow Drayden's mandate that damages are unavailable under Title VI and IX." Id. at 12. The court also rejected petitioner's contention that Title VII analysis should be applied to the case. Ibid. Judge Johnson concurred specially. In his view, since Guardians Ass'n did not overrule Drayden, "Drayden alone (was) dispositive of this case," and it was unnecessary "to address the issues of whether Title VI and IX are grounded solely in the Spending Clause or whether Title VII analysis should apply to an action under Title VI or Title IX." Pet. App. 14. DISCUSSION In our view, the court of appeals was correct in its conclusion that Title IX does not impliedly authorize a private plaintiff to recover compensatory legal damages, even if the plaintiff alleges an intentional violation of the statute. We believe, nevertheless, that further review of this case is warranted. There is a square conflict among the courts of appeals on the availability of compensatory damages for allegedly intentional violations of Title IX. More broadly, this Court's decisions, particularly the divided decision in Guardians Ass'n, have spawned uncertainty regarding the scope of the remedies available to private parties under Title IX and two closely related statutes, Title VI of the Civil Rights Act of 1964 and Section 504 of the Rehabilitation Act of 1973, 29 U.S.C. 794. This case provides an opportunity to resolve the conflict among the courts of appeals on the question presented and to clarify the scope of private rights of action under Title IX and other similar statutes. 1. Title IX does not confer an express right of action on private parties who allege that they have been the victims of sex discrimination in educational programs receiving federal funding. In Cannon v. University of Chicago, supra, the Court held that private parties may bring lawsuits to enforce Title IX. Declaratory relief and two equitable remedies -- prospective injunctive relief mandating compliance with the law and equitable "make-whole" relief, such as backpay, designed to restore withheld benefits or to complement prospective injunctive relief -- are often sought in such cases. This case concerns a fourth form of relief, legal damages. /4/ Petitioner's complaint seeks "compensatory, special, (and) * * * general damages" (Compl. Paragraph 51) of the sort customarily sought in an action in tort. The court of appeals held this legal remedy unavailable under Title IX. a. Section 901(a) of Title IX, 20 U.S.C. 1681(a), provides, with exceptions not relevant here: No 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 * * *. Sections 902 and 903 of the Act, 20 U.S.C. 1682-1683, provide, respectively, for administrative enforcement of this prohibition and for judicial review of agency enforcement actions. Title IX was "patterned after Title VI of the Civil Rights Act of 1964." Cannon v. University of Chicago, 441 U.S. at 694. Title VI contains equivalent provisions prohibiting discrimination based on race, color, or national origin in programs receiving federal financial assistance. Similarly, Section 504(a) of the Rehabilitation Act, 29 U.S.C. 794(a), prohibits discrimination in federally financed programs and activities against an "otherwise qualified individual with handicaps * * * solely by reason of her or his handicap." Under Section 505(a)(2) of the Rehabilitation Act, 29 U.S.C. 794a (a)(2), "(t)he remedies, procedures, and rights set forth in title VI * * * shall be available to any person aggrieved by" a violation of Section 504. /5/ This Court has construed Title IX, Title VI, and Section 504 to provide substantially the same remedies to private parties. Cannon v. University of Chicago, 441 U.S. at 694-696; Consolidated Rail Corp. v. Darrone, 465 U.S. 624, 626, 630 & n.9 (1984). See also United States Dep't of Transp. v. Paralyzed Veterans of America, 477 U.S. 597, 600 n.4 (1986); Alexander v. Choate, 469 U.S. 287, 292-293 & n.7, 294-295 & n.11 (1985). b. Title IX and Title VI do not confer any express remedies on private parties, and the Rehabilitation Act incorporates the remedial scheme created by Title VI without specifying what relief is available. In Cannon v. University of Chicago, 441 U.S. at 689, however, the Court held that Title IX authorized a female applicant for admission to two medical schools "to pursue her claim that (those schools) rejected her application on the basis of her sex." In reaching that conclusion, the Court determined that Congress intended, in Title IX, to create the same private right of action that lower courts had previously recognized under Title VI. The Court's subsequent decisions in Guardians Ass'n and Consolidated Rail Corp. v. Darrone, 465 U.S. at 630 & n.9, recognize private rights of action under Title VI and the Rehabilitation Act. This Court's decisions have not, however, settled the separate question of what types of relief are authorized in the implied private actions under these statues. In Cannon, the plaintiff's complaint requested declaratory, injunctive, and monetary relief, see Cannon v. University of Chicago, 406 F. Supp. 1257, 1258 (N.D. Ill. 1976), but this Court was not called upon to determine what remedies the statute authorized. In Pennhurst State School v. Halderman, 451 U.S. 1, 29 (1981), the Court stated that recognition of a private right of action under a federal funding statute -- in that case, the Developmentally Disabled Assistance and Bill of Rights Act, 42 U.S.C. 6000 et seq. -- does not automatically entitle a plaintiff to a remedy in damages. Even if such a cause of action exists, the Court noted, the relief available to private parties "may well be limited to enjoining the Federal Government from providing funds to" a State that has violated the Act. 451 U.S. at 29-30. c. The Court's deeply divided decision in Guardians Ass'n added to the uncertainty regarding the remedies available to private parties under statutes prohibiting discrimination in federally funded programs. /6/ In Guardians Ass'n, black and Hispanic police officers challenged written examinations administered by the New York City Civil Service Commission for purposes of Police Department appointments. The district court concluded that although the plaintiffs failed to prove that defendants had acted with discriminatory intent, the tests had a disparate impact upon minority recruits and were not job-related. Guardians Ass'n v. Civil Service Comm'n, 431 F. Supp. 526, 538-539 (S.D.N.Y 1977). The district court held that those findings established a violation of Title VI and that a private right of action was available for such a violation; the court awarded the plaintiffs equitable remedies, including constructive seniority, backpay, interest, and certain back benefits. Guardians Ass'n v. Civil Service Comm'n, 466 F. Supp. 1273, 1281-1287 (S.D.N.Y. 1979). The court of appeals reversed. Two members of the panel held that discriminatory intent is required for a violation of Title VI; the third concurred on the ground that "compensatory relief" of the sort ordered by the district court is unavailable under Title VI. Guardians Ass'n v. Civil Servtice Comm'n, 633 F.2d 232, 255-256 & n.43, 270, 274-275 (2d Cir. 1980). This Court affirmed the judgment, but seven separate opinions expressed divergent views on whether Title VI (or regulations implementing that statute) prohibit unintentional discrimination and what remedies are available to private parties. With respect to the scope of Title VI, two Justices (White and Marshall, JJ.) concluded that the statute itself prohibits unintentional discrimination, 463 U.S. at 589-590, 616-624; three others (Stevens, Brennan, and Blackmun, JJ.) determined that although the statute does not prohibit such discrimination, regulations doing so are enforceable, id. at 639-645; and four Justices (Burger, C.J., and Powell, Rehnquist, and O'Connor, JJ.) concluded that the statute does not prohibit unintentional discrimination and that regulations purporting to do so are invalid, id. at 610-611, 612-614. On the subject of remedies, two Members of the Court (Burger, C.J., and Powell, J.) concluded that no private cause of action exists under Title VI (and that violations of that statute may not be the subject of actions under 42 U.S.C. 1983). 463 U.S. at 608-610 & n.3. /7/ Two Justices (White and Rehnquist, JJ.) concluded that private parties may enforce Title VI, either directly or by means of an action under Section 1983, against a state or local agency receiving federal funds. But these Justices also determined that the relief in such actions is limited, at least in the case of an unintentional violation, to declaratory and prospective injunctive relief. Id. at 593-607. Four Justices (Marshall, Stevens, Brennan and Blackmun, JJ.) concluded that the relief awarded by the district court was available for a violation of Title VI and its implementing regulations, either directly or by virtue of Section 1983. 463 U.S. at 624-639. Finally, Justice O'Connor disagreed with "the limitations Justice White's opinion would place on the scope of equitable relief available to private litigants suing under Title VI" but expressly reversed "the question whether there is a private cause of action under Title VI for damages relief." 463 U.S. at 612 & n.1. A total of five Justices thus concluded that the equitable relief at issue in Guardians Ass'n was unavailable to the plaintiffs, but no ground for that disposition commanded a majority of the Court. d. In Consolidated Rail Corp. v. Darrone, 465 U.S. at 630-631, the Court briefly addressed the remedies available to private parties under the Rehabilitation Act. In the course of rejecting a contention that the case had become moot, the Court found it "clear" from the opinions in Guardians Ass'n that Section 504 of the Rehabilitation Act "authorizes a plaintiff who alleges intentinal discrimination to bring an equitable action for backpay." 465 U.S. at 630. The Court expressly reserved the question "of the extent to which money damages are available" under Section 504. 465 U.S. at 630. 2. The Court's decisions thus leave open the question whether legal damages -- the form of relief that petitioner seeks in the instant case -- are available for intentional violations of statutes prohibiting discrimination in federally funded programs. Moreover, Justice Powell's prediction that the Court's opinions in Guardians Ass'n would "further confuse rather than guide," 463 U.S. at 608 (Powell, J., concurring), has proven accurate. There is a conflict among the courts of appeals on the question whether private parties may recover legal damages for an allegedly intentional violation of Title IX. In Pfeiffer v. Marion Center Area School Dist., 917 F.2d 779, 787-789 (1990), the Third Circuit held that this form of relief is available to a private plaintiff. /8/ That ruling is in conflict with the court of appeals' decision in the instant case, and with several decisions predating Guardians Ass'n, see Cannon V. University of Health Sciences/The Chicago Medical School, 710 F.2d 351, 356 (7th Cir. 1983); Lieberman V. University of Chicago, 660 F.2d 1185 (7th Cir. 1981), cert. denied, 456 U.S. 937 (1982); Drayden V. Needville Indep. School Dist., 642 F.2d at 133. In recent years, moreover, there has been a substantial body of litigation, with mixed results, over whether damages are available under Title IX, /9/ Title VI, /10/ and the Rehabilitation Act. /11/ In our view, this Court's review is warranted to resolve the conflict among the courts of appeals as to the availability of legal damages under Title IX. This case would also provide the Court with an opportunity to clarify the principles governing the remedies available to private parties under other statutes prohibiting discrimination in federally funded programs. 3. In our view, the court of appeals was correct in its conclusion that Title IX does not authorize private parties to recover legal damages. The issue of what relief is available to private parties under a statute -- like the question whether any private right of action exists at all -- is "basically a matter of statutory construction," Transamerica Mortgage Advisors, Inc. v. Lewis, 444 U.S. 11, 15 (1979). Moreover, since Cannon, the Court's decisions have made clear that the focus of this analysis must be upon the language of the statute and other materials customarily employed in statutory construction. /12/ The relevant materials do not suggest that Congress intended to provide private litigants with a right to recover damages under Title IX. Moreover, the government's express remedy under Title IX is designed to secure compliance with the statute's prohibition on discrimination without unnecessarily diverting funds from federally financed educational programs; awards of damages to private parties would undercut the balance Congress struck between these objectives. a. The language of Title IX is silent on the nature of the relief that may be awarded to private parties. This is hardly surprising. After all, the statute is silent on the very existence of a private cause of action in the first place. Mindful of the interpretive difficulties occasioned by fleshing out a nonexistent statutory provision, we believe that the statute is not framed in terms suggesting that awards of damages are essential for effective enforcement. The statute prohibits three forms of discrimination in federally funded educational programs: "(n)o person shall, on the basis of sex, be excluded from participation in, be denied the benefits of, or be subjected to discrimination under" any such program. 20 U.S.C. 1681(a). It is entirely consistent with this language to limit the implied remedies available to private party to those necessary (1) to restore a plaintiff who has been wrongfully excluded from a federally assisted program to full participation, (2) to reverse any denial of benefits and to restore any benefits wrongfully withheld, and (3) to eliminate unlawful discrimination. b. The legislative history of Title IX suggests that Congress did not foresee that private parties would recover damages for violations of that statute. In Cannon, the Court found that "(t)he drafters of Title IX explicitly assumed that it would be interpreted and applied as Title VI had been during the preceding eight years," 441 U.S. at 696, and that prior court decisions "reflect(ed) (Congress's) intent with respect to Title IX," id. at 697-698. Significantly, in none of the cases to which the Court referred, see id. at 696 & nn.20-21, did the court sustain an award of legal damages for a violation of Title VI. /13/ Thus, if the Congress that enacted Title IX was guided by the "state of the law at the time the legislation was enacted," Merrill Lynch, Pierce, Fenner & Smith, Inc. v. Curran, 456 U.S. 353, 378 (1982), it would not have contemplated awards of legal damages based upon violations of the statute. Recognition of an implied right of action to recover legal damages for violations of Title IX would also give rise to a curious anomaly in the civil rights acts. In most cases, persons alleging that they have been victimized by employment discrimination on the basis of race, color, or national origin in federally funded programs may not bring an action under Title VI. See 42 U.S.C. 2000d-3. Their remedies under the 1964 Civil Rights Act lie under Title VII, which is limited to equitable relief. /14/ Under petitioner's theory, however, plaintiffs suing under Title IX for employment discrimination on the basis of sex in federally funded programs would be entitled to legal damages. See North Haven Bd. of Educ. V. Bell, 456 U.S. 512 (1982). Of two plaintiffs working side-by-side, the one who alleged discrimination on the basis of sex would be entitled to significantly broader relief than the one who alleged discrimination on the basis of race. That result should not be attributed to Congress. See Shuttleworth V. Broward County, 649 F. Supp. 35, 37 (S.D. Fla. 1986). /15/ In Cannon, the Court also relied on Section 718 of the Education Amendments of 1972, Pub. L. No. 92-318, 86 Stat. 369, as evidence that Congress intended to allow enforcement of Title IX by private parties. See 441 U.S. at 699-701 & nn.25-28. Section 718, which has since been repealed, authorized an award of attorneys' fees in an action under Title VI upon "a finding that the proceedings were necessary to bring about compliance" with the statute. That provision suggests that any private actions contemplated under Title VI (and thus under Title IX) were perceived as means of "bring(ing) about compliance" with the statute. That conception is consistent with the view that only equitable relief is available under Title VI and Title IX. /16/ c. Allowing private plaintiffs to obtain equitable relief, but not legal damages, would also accommodate the purposes of Title IX and those of the federal funding programs to which it applies. The fundamental purpose of federal assistance is to make additional funds available for educational programs. Indeed, Title IX itself was part of legislation designed to alleviate the "acute financial distress" of educational institutions. H.R. Rep. No. 554, 92d Cong., 2d Sess. 2 (1971); see 118 Cong. Rec. 20,306-20,309 (1972) (remarks of Rep. Perkins). At the same time, Title IX serves "to avoid the use of federal resources to support discriminatory practices" and "to provide individual citizens effective protection against those practices." Cannon V. University of Chicago, 441 U.S. at 704. Title IX does contain an express remedy, one that strikes a careful balance between the goals of enforcing Title IX and avoiding the unnecessary depletion of funds earmarked for educational programs. Federal agencies are authorized to enforce Title IX by terminating federal assistance or "by any other means authorized by law," but they may not commence enforcement proceedings until they have "advised the appropriate person or persons of the failure to comply with (Title IX) and (have) determined that compliance cannot be secured by voluntary means." 20 U.S.C. 1682. The evident purpose of this scheme is to secure compliance with the statute without unnecessarily diverting resources from educational programs to litigation. The same objectives should inform the scope of any private remedies under Title IX. Equitable relief -- including, when appropriate, such "make whole" relief as backpay -- serves to enforce compliance with the statute. Awards of legal damages to selected beneficiaries of federal financing programs, by contrast, would threaten "a potentially massive financial liability," Lieberman V. University of Chicago, 660 F.2d at 1188, while securing compliance only indirectly through deterrence. See, e.g., Bradford V. Iron County C-4 School Dist., 37 Empl. Prac. Dec (CCH) Paragraph 35,404, at 38,613-38,614 (E.D. Mo. 1984). /17/ In our view, the Congress that made the government's express remedy for a violation of Title IX contingent upon the failure of efforts to obtain voluntary compliance with the statute should not be presumed to have authorized private parties, by implication, to recover all damages proximately caused by a past violation. /18/ CONCLUSION The petiton for a writ of certiorari should be granted. Respectfully submitted. KENNETH W. STARR Solicitor General STUART M. GERSON Assistant Attorney General JOHN G. ROBERTS, JR. Deputy Solicitor General STEPHEN L. NIGHTINGALE Assistant to the Solicitor General ROBERT S. GREENSPAN JOHN P. SCHNITKER Attorneys MAY 1991 /1/ Because the courts below dismissed the action on the basis of the complaint, its allegations must be taken as true. See Conley v. Gibson, 355 U.S. 41 (1957). The statement in the petition provides more detail on petitioner's allegations than the complaint, but in our view the differences are not material. For the Court's convenience, we have lodged with the Clerk copies of the original complaint and an amendment which attaches a report by the Department of Education on the results of its investigation. /2/ Before commencing this action, petitioner filed a complaint with the Office of Civil Rights (OCR) of the United States Department of Education. After an investigation, the OCR concluded in December 1988 that the school district violated regulations implementing Title IX in three respects: (1) "(petitioner) was subjected, on the basis of sex, to verbal and physical conduct of a sexual nature by a (School) District employee which subjected her to different treatment and limited her enjoyment of an aid, benefit or service; i.e., an education in a nondiscriminatory environment"; (2) "the actions of two (School) District employees, (Hill and Prescott), served to intimidate (petitioner)" and "interfered with (her) right to complain about actions prohibited by Title IX; i.e., sexual harassment"; and (3) the school district failed to provide proper grievance procedures for resolving complaints of sexual harassment by students and employees. Amended Compl. Exh. A, at 1, 7-8. Based upon the school district's assurances that it would take action to correct the violations, however, the OCR concluded that the school district was "presently fulfilling its obligations with respect to Title IX" and closed the innvestigation. Id. at 1, 8. /3/ The district court also held, with respect to the claim against Prescott, that Title IX will not support a claim against an individual who is not recipient of federal funds. Pet. App. 20. The court of appeals found that petitioner had abandoned her claim against Prescott (id. at 12-13), and the petition does not seek further review of that determination. Likewise, the petition seeks no further review with respect to the complaint's requests for injunctive relief and punitive damages. As noted, the district court understood petitioner's opposition to the motion to dismiss to restrict petitioner's claim to compensatory damages, and the questions presented are limited to that form of relief. Pet. i. /4/ See Consolidated Rail Corp. V. Darrone, 465 U.S. 624, 630 (1984) (discussing availability of backpay under Rehabilitation Act, while reserving question of compensatory damages); Chauffeurs, Local No. 391 V. Terry, 110 S.Ct. 1339, 1347-1349 (1990) (discussing the distinction between equitable monetary relief that is "restitutionary" or "incidental to or intertwined with injunnctive relief" and legal damages); Concerned Tenants Ass'n V. Indian Trails Apartments, 496 F. Supp. 522, 526-527 (N.D. Ill. 1980) (all forms of equitable relief, but not legal damages, available for violations of Title VI). Because we understand petitioner's complaint to seek only legal damages, the propriety of distinguishing between various kinds of equitable relief need not be decided. Cf. Guardians Ass'n, 463 U.S. at 593-607 (opinion of White, J.). /5/ In addition, Section 303 of the Older American Act Amendments of 1975, 42 U.S.C. 6102, prohibits age discrimination in federally financed activities. Unlike Title VI, Title IX, and the Rehabilitation Act, however, the Older Americans Act Amendments expressly refer to actions for injunctive relief by "any interested person." 42 U.S.C. 6104(e). /6/ Given the nature of the enterprise in Guardians Ass'n, as in this case, it is perhaps not surprising that division and confusion have characterized the course of judicial decision. What the courts are asked to do is settle the specifics of a statutory cause of action -- an undertaking that should be the province of the legislature that enacted the statute. Here, however, it is the courts that implied the cause of action. Since Congress did not expressly provide a cause of action, it did not expressly address the specifics of the remedies available. The difficulty attending judicial attempts to do so should call into serious question the propriety of implying causes of action in the first place. See also n.12, infra. /7/ Petitioner's complaint does not seek relief under Section 1983; thus, this case does not present the question of what relief is available under that provision. /8/ The court reached that question by a circuitous route. After a trial, the district court found that the plaintiff, a student who alleged that her school board had violated Title IX by excluding her from the National Honor Society, had failed to establish discrimination prohibited by the statute. On appeal, the Third Circuit held that the district court had erroneously excluded certain evidence offered by the plaintiff; in the course of determining that a remand was required, it also decided the question whether Title IX authorized an award of compensatory damages, the only form of relief that was not moot. See 917 F.2d at 786-787. In view of the procedural posture of Pfeiffer, the respondents in this case urge that any conflict arising from that case is not "mature." Br. in Opp. 8, 18. However, the Third Circuit's ruling on the availability of damages under Title IX was essential, in the court's view, to its decision to remand the action. Thus, its ruling on that question is not dictum and should be regarded as binding in the Third Circuit. /9/ Compare Bagley V. Hoopes, No. 81-1126-Z (D. Mass. Aug. 6, 1985) (available on LEXIS, Genfed Library, Dist. File) ("The only remedies available to a private litigant under Title IX * * * are injunctive relief and attorneys fees, not compensatory damages."); Pruitt V. Illinois Township High School, No. 83 C 4346 (N.D. Ill. Jan. 20, 1984) (available on LEXIS, Genfed Library, Dist. File) (a proper Title IX claim "should not include a prayer for money damages"); Bougher V. University of Pittsburgh, 713 F. Supp. 139, 143 n.2 (W.D. Pa. 1989) (same), with Beehler V. Jeffes, 664 F. Supp. 931, 939-940 (M.D. Pa. 1986) ("money damages available for intentional violations of Title IX"). /10/ Compare Cone Corp. V. Florida Dep't of Transp., 921 F.2d 1190, 1201-1202 n.37 (11th Cir. 1991) (noting that court of appeals' decision in the instant case bars a claim for compensatory damages under Title VI); Moreno V. Texas Southern Univ., 573 F. Supp. 73, 76-77 (S.D. Tex. 1983) (compensatory damages not available under Title VI); Davis v. Spanish Coalition For Jobs, Inc., 676 F. Supp. 171 (N.D. Ill. 1988) (same), with Singh v. Superintending School Comm., 601 F. Supp. 865, 866-867 (D. Me. 1985) (compensatory damages available under Title VI or Section 1983); Paisey V. Vitale, 634 F. Supp. 741, 745 (S.D. Fla.) (characterizing Guardians as limited to claims of unintentional violations; compensatory damages may be available under Title VI), aff'd on other grounds, 807 F.2d 889, 895 n.8 (11th Cir. 1986). See also Concerned Tenants Ass'n v. Indian Trails Apartments, 496 F. Supp. 522, 526-527 (N.D. Ill. 1980) (holding before Guardians Ass'n that money damages are not available under Title VI). /11/ See Smith V. Robinson, 468 U.S. 992, 1020 n.24 (1984) ("There is some confusion among the Circuits as to the availability of a damages remedy under Section 504 (of the Rehabilitation Act). Without expressing an opinion on the matter, we note that courts generally agree that damages are available under Section 504."); Hurry V. Jones, 734 F.2d 879, 886 (1st Cir. 1984) ("(t)he question to what extent damages are recovered under Section 504 is still unanswered"); Neighborhood Action Coalition V. City of Canton, 882 F.2d 1012, (6th Cir. 1989) (reserving that question); Schroeder V. City of Chicago, 927 F.2d 957, 962 (7th Cir. 1991) (same). Compare Smith V. Barton, 914 F.2d 1330, 1337 (9th Cir. 1990) ("money damages are available in the Ninth Circuit for violations of section 504"); Moore V. Warwick Public School Dist. No. 29, 794 F.2d 322, 325 (8th Cir. 1986) ("individual plaintiffs have an implied private cause of action for damages under section 504"), with Doe V. Southeastern Univ., 732 F. Supp. 7, 9-10 (D.D.C. 1990) (no private right to recover damages under Section 504 of the Rehabilitation Act); Rhodes V. Charter Hosp., 730 F. Supp. 1383, 1385 (S.D. Miss. 1989) (same); Shuttleworth V. Broward County, 649 F. Supp. 35 (S.D. Fla. 1986) (same); Bradford V. Iron County C-4 School Dist., 37 Empl. Prac. Dec. (CCH) Paragraph 35,404, at 38,612-38,614 (E.D. Mo. 1984) (same); Sabo V. O'Bannon, 586 F. Supp. 1132, 1137-1138 (E.D. Pa. 1984) (no right to damages for unintentional violation). Cf. Byrne V. Board of Ed., 53 Fair Empl. Prac. Cas. (BNA) 551, 554 (E.D. Wis. 1989) (damages available under 42 U.S.C. 1983 for violation of Section 504). /12/ See, e.g., Northwest Airlines, Inc. V. Transport Workers Union, 451 U.S. 77, 94 (1981) ("unless this congressional intent (to create a private remedy) can be inferred from the language of the statute, the statutory structure, or some other source, the essential predicate for implication of a private remedy simply does not exist"); Middlesex County Sewerage Auth. V. National Sea Clammers Ass'n, 453 U.S. 1, 13 (1981) ("We look first, of course, to the statutory language, particularly to provisions made therein for enforcement and relief. Then we review the legislative history and other traditional aids of statutory interpretation to determine congressional intent."); Massachusetts Mutual Life Ins. Co. V. Russell, 473 U.S. 134, 147 (1985); Karahalios V. National Fed'n of Federal Employees, Local 1263, 489 U.S. 527, 532-533 (1989). In our view, the difficulty surrounding the question of available remedies is attributable in no small part to the fact that, pace Cannon, the text and structure of Title IX provide little support for a right of action under that statute. It is difficult, in the face of the express remedy conferred on the government and the statute's silence with respect to private parties, to discern the scope of the private right of action recognized in Cannon. The parties thus far have not questioned the vitality of Cannon in light of subsequent decisions of this Court. /13/ See Gautreaux V. Romney, 448 F.2d 731, 740-741 (7th Cir. 1971), later appeal, Gautreaux V. Chicago Housing Auth., 503 F.2d 930 (7th Cir. 1974), aff'd sub nom. Hills v. Gautreaux, 425 U.S. 284 (1976) (authorizing injunctive relief for housing discrimination); Alvarado V. El Paso Indep. School Dist., 445 F.2d 1011 (5th Cir. 1971) (reversing dismissal of school desegregation suit without addressing appropriate relief); Gautreaux v. Chicago Housing Auth., 436 F.2d 306 (7th Cir.) (granting injunctive relief), cert. denied, 402 U.S. 922 (1971); Shannon V. HUD, 436 F.2d 809, 822-823 (3d Cir. 1970) (authorizing declaratory and injunctive relief regarding location of a public housing project); Nashville I-40 Steering Comm. v. Ellington, 387 F.2d 179 (6th Cir. 1967) (affirming denial of preliminary injunction against highway construction project), cert. denied, 390 U.S. 921 (1968); Anderson V. San Francisco Unifed School Dist., 357 F. Supp. 248, 255 (N.D. Cal. 1972) (awarding injunctive and declaratory relief to remedy "reverse discrimination" in employment); Blackshear Residents Org. V. Housing Auth., 347 F. Supp. 1138, 1149-1150 (W.D. Tex. 1972) (awarding injunctive relief directed at segregated public housing); Hawthorne V. Kenbridge Recreation Ass'n, 341 F. Supp. 1382 (E.D. Va. 1972) (awarding injunctive relief directed at discrimination by private association receiving SBA loan); Southern Christian Leadership Conference, Inc. V. Connolly, 331 F. Supp. 940 (E.D. Mich. 1971) (denying motion to dismiss action for declaratory relief regarding discrimination in SBA loan program); Hicks V. Weaver, 302 F. Supp. 619 (E.D. La. 1969) (granting preliminary injunction against school segregation); Gautreaux V. Chicago Housing Auth., 296 F. Supp. 907, 914-915 (N.D. Ill. 1969) (granting injunctive relief directed at segregated housing); Rolfe V. County Bd. of Ed., 282 F. Supp. 192 (E.D. Tenn. 1966), aff'd, 391 F.2d 77 (6th Cir. 1968) (granting reinstatement and back pay for discrimination in employment); Gautreaux V. Chicago Housing Auth., 265 F. Supp. 582 (N.D. Ill. 1967) (denying motion to dismiss action challenging allegedly segregated public housing); Lemon V. Bossier Parish School Bd., 240 F. Supp. 709 (W.D. La. 1965), aff'd, 370 F.2d 847, 852 (5th Cir.) (granting injunctive relief against segregated school system), cert. denied, 388 U.S. 911 (1967). /14/ See B. Schlei & P. Grossman, Employment Discrimination Law 1452 & n.153 (2d ed. 1981); id. at 352 & n.85 (Supp. 1983-1985); C. Sullivan, M. Zimmer & R. Richards, Employment Discrimination Section 15.1, at 53-54 (2d ed. 1988). /15/ In fact, in 1972, the same Congress that enacted Title IX also extended Title VII to educational institutions, thereby creating an express remedy for employment discrimination in those institutions on the basis of race, sex, religion, or national origin. Equal Employment Opportunity Act of 1972, Pub. L. No. 92-261, Section 3,86 Stat. 103-104. It would be especially anomalous to suggest that Title IX created, by implication, a broader right to relief for employment discrimination in educational institutions on the basis of sex than Title VII created expressly. /16/ In 1976, Congress amended 42 U.S.C. 1988 to authorize awards of attorneys' fees in actions under Title VI and Title IX. However, the new grant of attorneys' fees in actions under Title IX does not bear on the intention of the earlier Congress that passed the statute creating any private right of action, and in any event nothing in the 1976 amendment suggests that legal damages are available under Title IX. /17/ An award of damages is different from an equitable "make whole" remedy because the latter remedy "merely requires the (defendant) to belatedly pay expenses that it should have paid all along and would have borne in the first instance had it (acted in accordance with the statute)." Burlington School Comm. V. Department of Educ., 471 U.S. 359, 370-371 (1985). /18/ As the court of appeals held, the Civil Rights Remedies Equalization Amendment of 1986 (Equalization Amendment), Pub. L. No. 99-506, Tit. X, Section 1003, 100 Stat. 1845 (codified at 42 U.S.C. 2000d-7), does not support a private damages remedy for violations of Title IX. The Equalization Amendment was enacted to withdraw Eleventh Amendment immunity recognized in Atascadero State Hosp. V. Scanlon, 473 U.S. 274 (1985). The statute does not confer or recognize any right to recover damages that would not otherwise exist; it merely makes States liable for "remedies * * * at law and equity * * * to the same extent as such remedies are available for such a violation in the suit against any public or private entity other than a State." 42 U.S.C. 2000d-7(a)(2). See S. Rep. No. 388, 99th Cong., 2d Sess. 27 (1986). In fact, in describing the legislation's intended effect, Senator Cranston, its sponsor, carefully reserved the question whether a damages remedy exists. He stated that "if a Federal suit for damages were generally available to enforce a civil rights law against a recipient of Federal funds -- and nothing in that law were to exempt the State from such a suit -- a Federal suit for damages would now be available against a State or a State agency." 132 Cong. Rec. 28,623 (1986) (emphasis added).