The Dissent in the North Haven Case

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A natural reading of these words would limit the statute's scope to discrimination againstthose who are enrolled in, or who are denied thebenefits of, programs or activities receiving federal funding.

It tortures the language chosen by Congress toconclude that not only teachers andadministrators, but also secretaries and janitors... are ... subject to discrimination under an education program or activity.

To justify such a reading of a statute, thelegislative history must show unambiguouslythat Congress did intend what it failed to state.The Court's elaborate exposition of the historyof Title IX falls far short of this standard.

The Dissent

Justice Powell, with whom The Chief Justice and Justice Rehnquist join, dissenting.

Title IX of the Education Amendments of 1972, 20 U.S.C. 1681 et seq., prohibits discrimination on the basis of sex in education programs and activities receiving federal funds. In 1975, the Department of Health, Education, and Welfare (HEW) [

  • ] promulgated regulations prohibiting discrimination on the basis of gender in employment by fund recipients. [
  • ] Today, the Court upholds the validity of these regulations, relying on the statutory language, its legislative history, and several postenactment events. Because I believe the Court's interpretation is neither consistent with the statutory language nor supported by its legislative history, I dissent.


Although the Court begins with the language of the statute, it quotes the relevant language in its entirety only in the opening paragraphs of the opinion. In the section considering the statute's meaning, the Court quotes two words of the statute and paraphrases the rest, thereby suggesting an interpretation actually at odds with the language used in the statute. Thus, according to the Court, "[s]ection 901's broad directive that 'no person' may be discriminated against on the basis of gender appears, on its face, to include employees as well as students." This is not what the statutory language provides.

In relevant part, the statute states:

"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. ..." Education Amendments of 1972, 901(a), 20 U.S.C. 1681(a).

A natural reading of these words would limit the statute's scope to discrimination against those who are enrolled in, or who are denied the benefits of, programs or activities receiving federal funding. It tortures the language chosen by Congress to conclude that not only teachers and administrators, but also secretaries and janitors, who are discriminated against on the basis of sex in employment, are thereby (i) denied participation in a program or activity, (ii) denied the benefits of a program or activity, or (iii) subject to discrimination under an education program or activity. Moreover, Congress made no reference whatever to employers or employees in Title IX, in sharp contrast to quite explicit language in other statutes regulating employment practices.[

  • ]

It is noteworthy that not one of the other five courts of appeals to consider the question before us reached the conclusion that HEW's interpretation is supported by the statutory language. The issue was presented initially to the Court of Appeals for the First Circuit in Islesboro School Committee v. Califano, [

  • ], and that decision has been followed by most other courts of appeals to consider the question. There, the court concluded that "[t]he language of Section 901, 20 U.S.C. 1681, on its face, is aimed at the beneficiaries of the federal monies, i.e., either students attending institutions receiving federal funds or teachers engaged in special research being funded by the United States government." The court went on to point out that this reading of "the plain language of the statute is buttressed by an examination of the specific exemptions mentioned in the statute," all of which relate to students, not employees. [
  • ]

In the next appellate decision, Romeo Community Schools v. HEW, [

  • ], the Court of Appeals for the Sixth Circuit also rejected the interpretation of the statute now relied on by this Court, noting that "as actually written, the statute is not nearly so broad. The words 'no person' are modified by later language which clearly limits their meaning." [
  • ] The court concluded that the statute "reaches only those types of disparate treatment" that involve discrimination against program beneficiaries.[
  • ] [
  • ]

II (A)

The Court acknowledges, as it must, that 901 of Title IX "does not expressly include ... employees." But it finds a strong negative inference in the fact that 901 does not "exclude employees from its scope." [

  • ] The Court then turns to the legislative history for evidence as to whether or not 901 was meant to prohibit employment discrimination. [
  • ] I agree with the several courts of appeals that have concluded unequivocally that the statutory language cannot fairly be read to proscribe employee discrimination. Only rarely may legislative history be relied upon to read into a statute operative language that Congress itself did not include. To justify such a reading of a statute, the legislative history must show clearly and unambiguously that Congress did intend what it failed to state.[
  • ] The Court's elaborate exposition of the history of Title IX falls far short of this standard.

Title IX originated in a floor amendment sponsored by Senator Bayh to Senate Bill, S 659, 92nd Cong., 2d Sess. (1972). The amendment was intended to close loopholes in earlier civil-rights legislation; three problem areas had been identified in hearings by a special House Committee in 1970. ... Title VII of the Civil Rights Act of 1964, though generally barring employment discrimination on the basis of sex, race, religion, or national origin, did not apply to discrimination "with respect to employment of individuals to perform work connected with the educational activities of [educational] institutions." [

  • ] And the Equal Pay Act of 1963 banned discrimination in wages on the basis of sex, [
  • ], but it did not apply to administrative, executive, or professional workers, including teachers. [
  • ] Finally, Title VI of the Civil Rights Act of 1964, 42 U.S.C. 2000d, barred discrimination on the basis of "race, color, or national origin," but not sex, in any federally funded programs and activities.

The Bayh floor amendment, introduced in 1972, [

  • ], closed these loopholes. Section 1005 amended Title VII to cover employment discrimination in educational institutions. [
  • ] Sections 1009-1010 amended the Equal Pay Act so that discrimination in pay on the basis of sex was barred, even for teachers and other professionals. [
  • ] And 1001-1003 created a new Title IX banning discrimination on the basis of sex in federally funded educational programs and activities, thus effectively extending Title VI's prohibition to sex discrimination in such programs.

Since the amendments to Title VII and the Equal Pay Act explicitly covered discrimination in employment in educational institutions, there was no need to include 1001-1003 of the Bayh amendment to proscribe such discrimination. Instead, Title IX presumably was enacted, as its language clearly indicates, to bar discrimination against beneficiaries of federally funded educational programs and activities. This interpretation of Title IX is confirmed by the fact that it was modeled after Title VI, a statute limited in its scope to discrimination against beneficiaries of federally funded programs, not general employment practices of fund recipients.[

  • ] [
  • ] And, as this Court noted in Cannon v. University of Chicago, [
  • ], when Congress passed Title IX, it expected the new provision to be interpreted consistently with Title VI, which had been its model. ...

II (C)

In concluding that the legislative history indicates Title IX was intended to extend to employment discrimination, the Court is forced to rely primarily on the statements of a single Senator. The first statement is ambiguous. Senator Bayh did state that faculty employment would be covered by his amendment after mentioning the sections enacting Title IX but prior to any mention of those amending Title VII and the Equal Pay Act. Immediately thereafter, however, he stated that Title IX's enforcement powers paralleled those in Title VI. Yet Title VI has never provided for fund termination to redress discrimination in employment.

Next, the Court quotes Bayh's statements that (i) he regarded "sections 1001-1005" as "[c]entral to [his] amendment" and (ii) "[t]his portion of the amendment covers discrimination in all areas," including employment. But, 1005 of the Bayh amendment is the section amending Title VII and thus 1001-1005 cover employment discrimination regardless of whether Title IX does.[

  • ] Moreover, the Court uses an ellipsis rather than include the following words from the second Bayh statement:

"Discrimination against the beneficiar-ies of federally assisted programs and activities is already prohibited by Title VI of the 1964 Civil Rights Act, but unfortunately the prohibition does not apply to discrimination on the basis of sex. In order to close this loophole, my amendment sets forth prohibition and enforcement provisions which generally parallel the provisions of Title VI." [

  • ]

Thus, for a second time, Bayh indicated to the Senate that he regarded Title IX of his amendment as parallel to Title VI rather than as a substantial departure from Title VI.

In the third Bayh statement, the Senator was responding to a question from Senator Pell regarding Title IX, and the Court assumes that each sentence in that response refers to Title IX. But, as the Court of Appeals for the First Circuit noted in Islesboro:

"A fair reading both of the colloquy ..., as well as the discussion immediately preceding and following the above-quoted passage, indicates that Senator Bayh divided his analysis into three sections, two of which were specifically aimed at students (admissions and services), the third at employees (employment). While Senator Bayh's response was more extended than it needed to be for a direct answer to Senator Pell's question, we think HEW's reading is strained. We think this particularly in light of the fact that the discussion was an oral one and thus not as precise as a response in written form. ..." [

  • ]

Rather than supporting the Court's view, the legislative history accords with the natural reading of the statute. Title IX prohibits discrimination only against beneficiaries of federally funded programs and activities, not all employment discrimination by recipients of federal funds. Title IX is modeled after Title VI, which is explicitly so limited--and to the extent statements of Senator Bayh can be read to the contrary, they are ambiguous.[

  • ]

As indicated above, when critical words, in this case "employment discrimination," are absent from a statute and its meaning is otherwise clear, reliance on legislative history to add omitted words is rarely appropriate. Only when legislative history gives clear and unequivocal guidance as to Congressional intent should a court presume to add what Congress failed to include. And, however else one might describe the legislative history relied upon by the Court today, it is neither clear nor unequivocal.


As the sole issue before us is the meaning of 901(a) of Title IX, I repeat the relevant language:

"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. ..." 901(a).

The Court acknowledges that, in view of the lack of support for its position in this language, it must look to the legislative history for evidence as to whether or not 901 was meant to prohibit employment discrimination. Although the Court examines at length the truncated legislative history, it ignores other factors highly relevant to congressional intent: (i) whether the ambiguity easily could have been avoided by the legislative draftsman; (ii) whether Congress had prior experience and a certain amount of expertise in legislating with respect to this particular subject; and (iii) whether existing legislation clearly and adequately proscribed and provided remedies for the conduct in question. When these factors are considered, there is no justification for reading sex employment discrimination language into 901.

If there had been such an intent, no competent legislative draftsman would have written 901 as above set forth. The draftsman would have been guided, of course, by the employment-discrimination language in Title VII and the Equal Pay Act, language specifically addressing this problem. Moreover, although these other statutes had been enacted by an earlier Congress, at the time Title IX was being drafted and considered, Title VII and the Equal Pay Act also were amended to proscribe explicitly employment discrimination in educational institutions on the basis of sex. Congress hardly would have enacted a third statute addressing this problem, but, in contrast to the other two, use language ambiguous at best.

In addition, a comparison of the provisions of Title VII and Title IX suggests that Congress would not have enacted the inconsistent provisions of the latter with respect to remedies and procedures. Title VII is a comprehensive anti-discrimination statute with carefully prescribed procedures for conciliation by the EEOC, federal-court remedies available within certain time limits, and certain specified forms of relief, designed to make whole the victims of illegal discrimination and available unless discriminatory conduct falls within one of several exceptions. [

  • ] This thoughtfully structured approach is in sharp contrast to Title IX, which contains only one extreme remedy, fund termination, apparently now available at the request of any female employee who can prove discrimination in employment in a federally funded program or activity. This cutoff of funds, at the expense of innocent beneficiaries of the funded program, will not remedy the injustice to the employee. Indeed, Title IX does not authorize a single action, such as employment, reemployment, or promotion, to rectify employment discrimination. And Title IX, unlike Title VII, has no time limits for action, no conciliation provisions, and no guidance as to procedure.[
  • ] [
  • ] The Solicitor General conceded at oral argument that appropriate relief for the two employees who initiated this suit was available under Title VII.[
  • ] [
  • ]

Finally, Congress delegated the administration of Title IX to the Department of Health, Education, and Welfare. In contrast, Title VII and the Equal Pay Act are administered by the Department of Labor and EEOC. It is most unlikely that Congress would intend not only duplicate substantive legislation but also enforcement of these provisions by different departments of government with different enforcement powers, areas of expertise, and enforcement methods.[

  • ] The District Court in Romeo Community Schools v. HEW, [
  • ], correctly observed:

"These governmental agencies, particularly the EEOC, were established specifically for the purpose of regulating discrimination in employment practices. These agencies have the expertise and their enabling legislation has provided them with the investigative and enforcement machinery necessary to compel compliance with regulations against sex discrimination in employment. HEW does not have similar enforcement authority." [

  • ]

Even the Solicitor General, in the brief on behalf of the federal respondents in this case, acknowledges what the Romeo court thought was self evident:

"The Department of Education has only limited expertise in employment matters. Its view is that employment cases are better resolved under Title VII of the Civil Rights Act of 1964, which provides more appropriate remedies for such cases." [

  • ]

In sum, the Court's decision today, finding an unarticulated intent on the part of Congress, is predicated on five perceptions of congressional action that I am unable to share: (i) that Congress neglectfully or forgetfully failed to include language in 901 with respect to discrimination that would have made clear its intent; (ii) that Congress enacted a third statute proscribing sex discrimination in employment in educational institutions in the absence of any showing of a need for such duplicative legislation; (iii) that Congress failed to include in the third statute appropriate procedural and remedial provisions relevant to employment discrimination; (iv) that it vested the authority to enforce the third statute in HEW, a department that even the Solicitor General concedes lacks the experience and the qualifications to oversee and enforce employment legislation; and (v) finally, that in Title IX, it gave a new "remedy" for sex discrimination in employment, but did not make that remedy available to those discriminated against on the basis of race.

In response to this dissent, the Court states that the factors considered in this Part III, summarized above, "are not relevant" to "ascertaining legislative intent." If this were a "plain language" case, this statement probably would be unobjectionable. But the Court recognizes that its position cannot be sustained solely by the plain language of the statute, and it therefore relies heavily on ambiguous and muddled oral statements made on the floor of the Senate. In these circumstances, it defies reason to say that a court should not consider what reasonable legislators surely would have considered. Where ambiguity exists it is not "irrelevant," to the process of ascertaining the intention of Congress, to consider specifically other statutes on the same subject. Nor must a court shun common sense in resolving ambiguities.[

  • ]

The Court acknowledges that the post-enactment events it discusses only "lend credence" to its interpretation of the statute.

I agree with the Court that employees who directly participate in a federal program, i.e., teachers who receive federal grants, are, of course, protected by Title IX. Respondents Elaine Dove and Linda Potz were not, however, participants in any grant program or in any other federally funded program or activity. Elaine Dove was a teacher and Linda Potz a guidance counselor. Both alleged only discrimination in employment.

The Court today not only finds this point unconvincing, but concludes that the "absence of a specific exclusion for employment among the list of exceptions tends to support the Court of Appeal's conclusion" that Title IX does protect employees. I am unable to follow this reasoning. The absence of employment-related exceptions may not be conclusive proof that employment is not within the scope of the statute. But I fail to see how that absence affirmatively indicates that the statute was intended to apply to employees. Indeed, if Congress did intend to cover employees, it is anomalous that it did not provide exceptions similar to those in Title VII. For example, Title VII does not proscribe bona fide seniority plans, [

  • ].

The most dependable sources of legislative intent are the reports of the responsible committees. Because Title IX is the result of a floor amendment, there is no explanation if its meaning in reports from the relevant House and Senate Committees.

Vol. 01, Issue 35

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