# Franklin v. Gwinnett County Public Schools (503 U.S. 60)

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## Concurring Opinion

    Scalia
Supreme Court of the United States
503 U.S. 60
Franklin v. Gwinnett County Public Schools
Certiorari to the United States Court of Appeals for the Eleventh Circuit
No. 90-918 Argued: December 11, 1991 --- Decided: February 26, 1992
Petitioner Franklin, a student in a high school operated by respondent school district, filed an action for damages in Federal District Court under Title IX of the Education Amendments of 1972, alleging, inter alia, that she had been subjected to continual sexual harassment and abuse by a teacher, Andrew Hill. After the complaint was filed, Hill resigned on the condition that all matters pending against him be dropped, and the school thereupon closed its investigation. The District Court subsequently dismissed the complaint on the ground that Title IX does not authorize an award of damages, and the Court of Appeals affirmed.
Held: A damages remedy is available for an action brought to enforce Title IX. Pp. 65–76.
(a) Title IX is enforceable through an implied right of action. Cannon v. University of Chicago, 441 U.S. 677. P. 65.
(b) The longstanding general rule is that absent clear direction to the contrary by Congress, the federal courts have the power to award any appropriate relief in a cognizable cause of action brought pursuant to a federal statute. See, e. g., Bell v. Hood, 327 U.S. 678, 684; Davis v. Passman, 442 U.S. 228, 246–247. Pp. 65–68.
(c) This Court's adherence to the general rule has not eroded since Bell. See, e. g., J. I. Case Co. v. Borak, 377 U.S. 426, 433–435. In declaring that "the question of who may enforce a statutory right is fundamentally different from the question of who may enforce a [constitutionally protected] right," Davis, 442 U.S., at 241, was not limiting the traditional presumption in favor of all appropriate relief to actions claiming constitutional violations. Rather it was merely attempting to decide whether a litigant had a "cause of action," a question that is analytically distinct from, and prior to, the one at issue: what relief, if any a litigant is entitled to receive, see id., at 239. Nor did Guardians Assn. v. Civil Service Comm'n of New York City, 463 U.S. 582, and Consolidated Rail Corporation v. Darrone, 465 U.S. 624, erode the traditional presumption. In fact, those cases support it, since a clear majority in Guardians expressed the view that damages were available in an action seeking remedies for an intentional violation of a statute [p. 61] closely analogous to Title IX, while a unanimous Court in Darrone held that another such statute authorized the award of backpay. Pp. 68–71.
(d) Congress did not intend to limit the remedies available in a Title IX suit. Because the Cannon Court inferred a cause of action upon concluding that Title IX supported no express right of action, the silence of the pre-Cannon statutory text and legislative history on the issue of available remedies is neither surprising nor enlightening. Rather, the appropriate inquiry for the pre-Cannon period is the state of the law when Congress passed Title IX. Since, at that time, the traditional presumption in favor of all available remedies was firmly established, and this Court had recently found implied rights of action in six cases and approved a damages remedy in three of them, the lack of any legislative intent to abandon the traditional presumption is amply demonstrated. For the post-Cannon period, when Congress was legislating with full cognizance of that decision, analysis of the text and history of the two statutes enacted to amend Title IX—the Civil Rights Remedies Equalization Amendment of 1986 and the Civil Rights Restoration Act of 1987—establishes that Congress validated Cannon 's holding and made no effort to alter the traditional presumption. Pp. 71–73.
(e) The argument that a damages award would unduly expand the federal courts' power into a sphere properly reserved to the Executive and Legislative Branches in violation of separation of powers principles misconceives the difference between a cause of action and a remedy. Unlike the finding of a cause of action, which authorizes a court to hear a case or controversy, the discretion to award appropriate relief involves no such increase in judicial power and, in fact, historically has been thought necessary to provide an important safeguard against legislative and executive abuses and to insure an independent Judiciary. Moreover, selective adjudication of the sort advocated here would harm separation of powers by giving judges the power to render inutile causes of action authorized by Congress through a decision that no remedy is available. Pp. 73–74.
(f) Also rejected is the contention that the normal presumption in favor of all appropriate remedies should not apply because Title IX was enacted pursuant to Congress' Spending Clause power. The Court's observation in Pennhurst State School and Hospital v. Halderman, 451 U.S. 1, 28–29, that remedies are limited under Spending Clause statutes when the alleged violation is unintentional is based on the theory that an entity receiving federal funds lacks notice that it will be liable for damages for such a violation, see id., at 17. This notice problem does not arise in a case such as the present, where intentional discrimination is alleged and is proscribed by the statute in question. Moreover, the notion that Spending Clause statutes do not authorize monetary awards [p. 62] for intentional violations is belied by the unanimous holding in Darrone, supra, at 628. Pp. 74–75.
(g) The assertion that Title IX remedies should nevertheless be limited to backpay and prospective relief diverges from this Court's traditional approach to deciding what remedies are available for violation of a federal right. Both suggested remedies are equitable in nature, and it is axiomatic that a court should determine the adequacy of damages at law before resorting to equitable relief. Moreover, both suggested remedies are clearly inadequate in that they would provide Franklin no relief: backpay because she was a student when the alleged discrimination occurred, and prospective relief because she no longer attends school in respondent system and Hill no longer teaches there. Pp. 75–76.
911 F.2d 617, reversed and remanded.
White, J., delivered the opinion of the Court, in which Blackmun, Stevens, O'Connor, Kennedy, and Souter, JJ., joined. Scalia, J., filed an opinion concurring in the judgment, in which Rehnquist, C. J., and Thomas, J., joined, post, p. 76.
Joel I. Klein argued the cause for petitioner. With him on the briefs were Richard G. Taranto and Michael Weinstock.
Albert M. Pearson III argued the cause for respondents. With him on the brief were Frank C. Bedinger III and E. Victoria Sweeny.
Stephen L. Nightingale argued the cause for the United States as amicus curiae urging affirmance. With him on the brief were Solicitor General Starr, Assistant Attorney General Gerson, Deputy Solicitor General Roberts, and John P. Schnitker.

#### Notes

* ↑ . Briefs of amici curiae urging reversal were filed for the National Women's Law Center et al. by Marcia D. Greenberger; and for the Lawyers' Committee for Civil Rights Under Law by William T. Lake, William H. Brown III, Herbert M. Wachtell, Norman Redlich, and Thomas J. Henderson.
Peter J. Kadzik and Arlene B. Mayerson filed a brief for the American Council of the Blind et al. as amici curiae.
This work is in the public domain in the United States because it is a work of the United States federal government (see 17 U.S.C. 105).
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