called it's credited by the c g i me it's funded by the medicare through a funding that's called graduate medical education everybody called graduate medical education why is that because this is how the exceptions that congress has excluded from coverage of sex discrimination education and it that includes good educational institutions and not educational institutions have a pretty good after the grove city case the issue groups that it was is the funding that goes straight to a coup gram disaster that was institutional our coverage or does it mean that you can only get the coverage within the program at issue sixt y seven it's very explicitly says that there are state entities covered it there is schools covered and then there are private corporations covered and depending on the type of private corporation you will have different types of institution y coverage and so for an educational institution it's the entire thing for a public interest organization it's if you get any funding that your entire operations are covered under if i don't mind however however i am there's a third type of private corporation that could have any business purpose whatsoever a private business that has no public interest component and that is also covered by title nine under section eight nine sixty seven and  seven does it says that the federal funding does not directly have to go to the educational program issue that was the purpose of sixteen eighty seven it did not extend to limit the scope of institutions covered by title nine and presented doesn't it say sixteen eighty seven hey  a person of your clients because it is required by congress to proceed under title seven yes and there's nothing explicit in the television claim as well we have a wrongful termination retaliation in the same claim but we also wish to a lesser harassment claim we believe that the collars that were made during that day and afterwards are a separate and distinct from the should and i'll address shortly just want to make clear that that question is distinct from and shouldn't affect this court's decision on whether medical residency is covered by title nine and that question the plain language of the statute as well as the regulations issued by the agencies that administer title nine and their interpretation of those regulations leave no doubt that medical residency is an education program  statement by the health department of health and human services prior to our brief of course under our prisons rather itself america's deference i would note though that every hospital in the country that receives  medicare payments through the medicare program is required to sign an accusation of compliance that acknowledges that they are bound by the five civil rights statutes that are tied to federal financial assistance including title  am and that they agreed to comply with them so that statement exists and hospitals understand asked to the private read of action question it's  united states that reading the three cases together can franklin and north haven there really is can be no other conclusion but that title nine provides a private cause of action for employees of educational programs or activities can and tells us that there is a private cause of action under title nine which franklin tells us includes the remedy of damages and north few reasons first of all your honour's reference to six hundred eighty seven i think is important because a by the time six hundred eighty seven was enacted in the canon had already been decided north haven had already been decided if congress at that point wanted to make clear yes we acknowledge that those can and were taken and frankly didn't explicitly address this question but we think that you know you have to leave those cases together and to somehow limit the cause of action that can unrecognized would be to the court my name is robin locke nagel and i represent the air probably mostly catholic medical center you want us to lower her early dismissed those title nine claims in their entirety because as an employee of mercy vista school district and in that case justice o'connor very clearly that implied rights of action as we have under title nine are not to be read extensively in particular where they might bump up against other federal statutory schemes and gaps or is completely in line with another long line of supreme court cases under makes hundred eighty three which likewise say where you have a comprehensive statutory remedial scheme and on one here and you have me nine hundred eighty three which is undefined on the other hand the comprehensive remedios scheme for the e e o c it has filing deadlines it has exquisite statutory damages remedies it comprehensively occupies the field for employees and on the other hand you majority concurrent and dissenting opinions in each and every one commented that we're congress creates rights it is better left to congress to do if congress wants private rights it is better if congress case the coach had complained of sex discrimination on the athletic among the women's athletic program and he himself could not file  claim because he had not experienced employment discrimination based on his sex so in that claim without any remedy the supreme court says we will recognize and we will thrown out of the residency program by your client no the distinction here is the change had a remedy a clear and undisputed remedy under title seven which she needed a conscious choice not to pu position that a private hospital that employs residents had training during the course of their employment is not an education program directivity within the meaning of title night the statute is the civil rights restoration act and it's defined broadly not only under title nine but under three other civil rights statutes congress basically right across the board and said as to all four of the statutes educational by the way we were talking to the program or activity that received federal funding and us supreme court said we're only talking about the individual program to the conversation we're talking about all of the operations but when they adopted that definition you know they had several different categories of dependents to which it would apply and the boredom of the could arguably apply to mercy is the one that says a private entity principly impeached in the business of and then it has a string of education hospital social services parks and recreation and so forth but when you air the modifier education for purposes of argument as to deference would be a teacher as in the department of education which of course are the entities who are charged with implementing the statutory research says occupational training rather programmer activity at least back to the definition so it's talking about subject matter but the entity is defined as an entity that is principally engaged in education and  the interpretation departs from the underlying statutory underpinnings it is not entitle to chevron who are our deference there and again i just want to point out that this is the department of justice along with department of education and h h s barbequing about private rights of action we're not here because the chicest is saying we want to be able to enforce our regulation because of medical school behind her admission because of her sex but suppose jane brought an action against the client saying she was denied admission to the graduate residency program because of her sex discriminating against her on the basis of her sex play not entering into an employment contract with her for residency and that's the precise issue and i would say that that cause of action would be under title seven i would barbecue and submit that that would not be covered under title nine because it's covered under title seven but that's a closer case our case is even beyond that because it's simply a community hospital that employs residen it clearly has an educational component or a training component to the rest of the experience but it's defined by the employment contract and we say residents are hired to see and treat patients eighty percent of their time is exercising independent clinical judgment not under any supervision they're not in a classroom they are providing services valuable needed services to the community who comes into the hospital to get health care  point first of all as to the supreme court i do believe it's volved and i believe that the gaps or decision which was subsequent to those three initial decisions does express the concern about implying rights of action you know beyond their clear statutory underpinnings that's number one but i'd like to give a couple of examples from this case as to why i think that it's inappropriate and why the courts are hesitant to expand implied rights should be entitled to invoke the equitable doctrine of continuing violation to get around the statute of limitations she's me to get around the statue of limitations bar to my  hostile environment claim she's borrowing from title seven she wants the benefits of title seven without the restrictions title seven is a comprehensive remedial skiing it has filing deadlines it has administr process it has a civic damage limit it is rabbits and the danger of permitting a plaintiff on a case by case basis to come in and argue perks pension rights is that you don't have you know you don't have the checks in the checks changed and by theory in many cases following that was that it's not a matter of labels you have to do a functional analysis you have to see this clearly in the context of the title six the title says and all of the other remedies that are available to plaintiffs and you know canon opened the door to sex discrimination claims but i would submit what bill was trying to do was to drive a mack truck through that and not look at this as a  alice's that asks ok congress didn't create this rate of action we courts created this rate of action how do we interpret it you know way that is consistent with the statutory supervisor who was supervising misto we are representing a student in this program student who happens to be an employee a stewardess who is also an employee just like a work study student or a graduate graduate student who teaches a substantial amount of classes and is a graduate student at a university he teaches a substantial amount of classes there's a substantial amount of independent research publishes is not covered by title nine then a medical resident shouldn't be ther prove that money she had actual knowledge and deliberate indifference to her complaints and you know so it's all benefits or burdens it's a different statue with different requirements and you know because of that different you know different burden of proving that it's federal funding that's the reason for that under gaps there you know she doesn't have to go to be you see him why should she be you see is not trained to investigate education discrimination to write me a letter of recommendation he was talking on the phone to the next program and he didn't give me the you know he people are listed way instead of giving me a positive thing you know keep the issues there i lost good i lost my educational opportunity doesn't care will job i wasna the money i was getting pretty here at the fifty thousand dollars a year for a doctor working eighty hours is a living site then but is it a salary that a doctor would take as she