IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 94-60010

JOAN M. LAKOSKI, PH.D., ET AL.,

Plaintiffs,

JOAN M. LAKOSKI, PH.D.,

Plaintiff-Appellee,

Cross-Appellant,

versus

THOMAS M. JAMES, M.D., ET AL.,

Defendants,

THE UNIVERSITY OF TEXAS MEDICAL BRANCH

AT GALVESTON,

Defendant-Appellant,

Cross-Appellee,

Appeals from the United States District Court

for the Southern District of Texas

(October 3, 1995)

Before HIGGINBOTHAM, SMITH, and STEWART, Circuit Judges.

HIGGINBOTHAM, Circuit Judge:

Rather than seek redress under Title VII of the Civil Rights

Act of 1964, 42 U.S.C. § 2000e et seq., Dr. Joan Lakoski sued the

University of Texas Medical Branch at Galveston under Title IX of

the Education Amendments of 1972, 20 U.S.C. § 1681 et seq., and 42

U.S.C. § 1983, alleging that the U niversity intentionally2

discriminated against her on the basis of sex in denying her

tenure. After a jury trial, the district court granted judgment to

Lakoski and awarded her $150,000 in damages, plus attorneys' fees.

The University appeals, claiming that Title IX does not provide a

private right of action for employment discrimination either

directly or derivatively through 42 U.S.C. § 1983. Dr. Lakoski

cross-appeals the district court's remittitur of damages and fee

award. We have jurisdiction over this timely appeal from a final

judgment. 28 U.S.C. § 1291. We are persuaded that Title VII

afforded Dr. Lakoski the exclusive means of relief, and we reverse

and render judgment for the University.

I.

In 1984, Dr. Lakoski joined the University's faculty as a

tenure-track assistant professor in the Department of Pharmacology.

Under its tenure policy, the University reviewed junior faculty

members for tenure by the beginning of their eighth ye ar at the

latest. Lakoski sought and was denied promotion three times: in

1988, 1989, and 1990. In February 1991, the department's tenure

committee recommended that Dr. Lakoski not be considered for tenure

in the future . The University offered Lakoski another position

with a significant salary increase, but she reject ed the offer.

Cary Cooper, the departmental chairman, later informed Dr. Lakoski

that her 1991-1992 appointment was her last at the University.

Less than a month before her final appointment was to expire,

Dr. Lakos ki sued the University and three University officials,

alleging that the denial of tenure and her termination constituted3

intentional sex discrimination in violation of Title IX, 42 U.S.C.

§ 1983, and state tort law. Although Lakoski's complaint was not

c lear on this point, her § 1983 claims were evidently based upon

both the Fourteenth Amendment and Title IX. Significantly, Dr.

Lakoski did not file a charge with the Equal Employment Opportunity

Commission, nor did she plead that the Univer sity violated Title

VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq.

Upon filing the suit, Dr. Lakoski sou ght a preliminary

injunction preventing her scheduled termination. Under an

agreement with the University, Dr. Lakoski remained on the faculty

p ending the outcome of the trial. She later accepted a tenuretrack position at Pennsylvania State University.

The defendants moved to dismiss Lakoski's suit. The

individual defendants claimed qualified immunity and the University

argued that there was no implied private right of action under

Title IX for damages for employment discrimination. A magistrate

judge rejected both contenti ons but dismissed the § 1983 claims

against the University, noting that although the § 1983 claims

appear to be asserted only against the individual defendants,

"insofar as [Lakoski] asserts a § 1983 cause of action against

UTMB, that claim must be dismissed" because of the Eleventh

Amendment. The magistrate judge did not distinguish between a

§ 1983 claim based upon the Fourteenth Amendment and a § 1983 claim

based upon Title IX. The district court adopted the magistrate's

recommendations and dismissed Lakoski's § 19 8 3 claims without

elaboration.4

At trial, Lakoski presented evidence suggesting that the

University, in evaluating her for promotion and tenure, employed

standards by which male faculty members were not judged. The

University countered that it denied Lakoski tenure because of the

paucity of her peer-reviewed articles and her inability to sustain

collegial relationships in her department.

At the close of Lakoski's case, the district court dismissed

all the claims against the individual defendants, leaving only the

University to defend the Title IX claim and, apparently, the § 1983

claim based upon Title IX. Though not entirely clear, the record

indicates that the district court presented these two claims to the

jury as a joint claim, even though the earlier dismissal of

Lakoski's § 1983 claims had not explained whether the § 1983 claim

asserting rights secured by Title IX was included in the order of

dismissal. The jury found that the University intentionally

discriminated against Dr. Lakoski on the basis of sex and awarded

her damages of $250,000. The court later reduced the damages to

$150,000 plus attorneys' fees. The University now appeals the

resulting judgment, and Dr. Lakoski appeals the remittitur and fee

award.

II.

Critical to our resolution of this case is the fact that,

although Dr. Lakoski possessed a colorable claim of employment

discrimination in violation of Title VII, she chose not to pursue

the remedy made available by Title VII. Title VII provides an

administrative procedure in which an aggrieved individual must5

first pursue administrative remedies before seeking judicial

relief. S ee 42 U.S.C. § 2000e-5. Dr. Lakoski chose to circumvent

this procedure and immediately assert her rights under Title IX

both directly and derivatively through 42 U.S.C. § 1983.

We are not persuaded that Congress intended that Title IX

offer a bypass of the remedial process of Title VII. We hold that

Title VII provide s the exclusive remedy for individuals alleging

employment discrimination on the basis of sex in federally funded

educati onal institutions. We limit our holding to individuals

seeking money damages under Title IX directly or derivatively

through § 1983 for employment practices for which Title VII

provides a remedy, expressing no opinion whether Title VII excludes

suits seeking only declaratory or injunctive relief.

III.

Dr. Lakoski argues that Cannon v. University of Chicago , 441

U.S. 677, 99 S.Ct. 1946, 60 L.Ed.2d 560 (1979), North Haven Bd. of

Educ. v. Bell

, 456 U.S. 512, 102 S.Ct. 1912, 72 L.Ed.2d 299 (1982),

and Franklin v. Gwinnett County Pub. Schs.

, 503 U.S. 60, 112 S.Ct.

1 028, 117 L.Ed.2d 208 (1992), sum to an implied private right of

action for damages under Title IX for employment discrimination.

Cannon held that a woman denied admission to a federally funded

school because of her sex enjoys an implied private right of action

under Title IX. 441 U.S. at 709. B ell upheld federal regulations

issued under Title IX prohibiting employment discrimination on the

basis of sex at federally funded educational institutions. 456

U.S. at 530. Finally, F ranklin held that a student harassed by her6

teacher may seek money damages in a private suit for the violation

of Title IX. 503 U.S. at 63.

We must disagree with Dr. Lakoski's jurisprudential

arithmetic. Unlike Dr. Lakoski's suit, neither C annon nor Bell nor

Franklin required the Cou rt to address the relationship between

Title VII and Title IX. Both Cannon and Franklin involved claims

of prospective or current students at federally funded educational

institutions; neither involved a claim of employment discrimination

by an employee of those schools. B ell addressed Title IX's

prohibition of employment discrimination in a challenge to the

validity of administrative regulations terminating federal funding

of educational institutions that discriminated on the basis of sex

in their employment practices. B el l was not a claim by an

individual for money damages for discrimination. In Bell , unlike

here, a private remedy for aggrieved employees under Title VII did

not affect, much less undermine, the validity of regulations for

t erminating federal funding. 503 U.S. at 535 n.26. In short,

Cannon

, Bell , and Franklin all presented legal questions in which

Title VII hovered on the distant horizon, if it was implicated at

all. Here, Title VII occupies center stage.

Given the availability of a private remedy under Title VII for

aggrieved employees, we are unwilling to follow Dr. Lakoski's

beguilingly simpl e syllogism that C annon

, Bell

, and Franklin all

add up to an implie d private right of action for damages under

Title IX for employment discrimination. Doing so would disrupt a

carefully balanced remedial scheme for redressing employment1 See also Howard v. Board of Educ. of Sycamore Community

Unit Sch. Dist. No. 427

, 893 F.Supp. 808, 815 (N.D. Ill. 1995)

(holding that Title VII preempts Title IX employment discrimination

action).

7 discrimination by employers such as the University of Texas Medical

Branch. We are unwilling to do such violence to the

congressionally mandated procedures of Title VII. We hold that the

district court erred in submitting Dr. Lakoski's Title IX claim for

damages to the jury. 1

IV.

Confusing both Lakoski and the University, the district court

submitted to the jury Lakoski's § 1983 claim based upon Title IX as

well as her Title IX clai m, at least the record so suggests. If

true, the district court erred.

A.

Section 1983 encompasses claims based upon rights secured by

federal statutes as well as by the United States Constitution.

Maine v. Thiboutot , 448 U.S. 1, 4, 100 S.Ct. 2502, 65 L.Ed.2d 555

(1980). However, a statute may provide "remedial devices . . .

sufficiently comprehensive

. . . to demonstrate congression a l

intent to preclude the remedy of suits under § 1983." M i ddlesex

Cty. Sewerage Auth. v. National Sea Clammers Ass'n.

, 453 U.S. 1,

20, 101 S.Ct. 2615, 69 L.Ed.2d 435 (1981).

To determine whether Congress intended to foreclose the § 1983

remedy for rights created by a federal statute, courts look to the

remedial measures provided by the statute itself. S ee, e.g.

,

Alexander v. Chicago Park Dist.

, 773 F.2d 850, 856 (7th Cir. 1985)8

("Since Title VI provides its own remedial scheme, we hold that

private actions based on Title VI may not be brought under

§ 1983."), cert. denied

, 475 U.S. 1095, 106 S.Ct. 1492, 89 L.Ed.2d

894 (1986).

Title IX provides limited remedies for victims of employment

discrimination. Termination of federal funding is the sole remedy

expressly available for violations of Title IX. S ee 42 U.S.C.

§ 1682; 34 C.F.R. § 106.71; see also North Haven Bd. of Educ. v.

Bell

, 456 U.S. 512, 552, 102 S .Ct. 1912, 1934, 72 L.Ed.2d 299

(1982) (Powell, J., d issenting) (noting that Title IX "contains

only one extreme remedy, fund termination"); Dougherty Cty. School

Syste m v. Harris , 622 F.2d 735, 736 (5th Cir. 1980) (noting that

termin ation of funding is Title IX's "primary sanction"), c ert.

granted and judgment vacated

, 456 U.S. 986, 102 S.Ct. 2264, 73

L .Ed.2d 1280 (1982). We cannot say that Title IX provides a

remedial scheme suffi ciently comprehensive to indicate b y itself

that Congress intended to foreclose § 1983 suits based upon rights

created by Title IX.

We ought not, however, confine our inquiry into congressional

intent to the remedies afforded by Title IX. Congress chose a

variety of tools to remedy employment discrimination. Title IX's

prohibition of sex discrimination in federally funded educational

i nstitutions is part of a larger federal legislative scheme

designed to protect individuals from employment discrimination on

the basis of sex. C ompare 20 U.S.C. § 1681 et seq. (Title IX) with

42 U.S.C. § 2000e et seq. (Title VII) and 29 U.S.C. § 206(d) (Equal9

Pay Act). To focus exclusively on Title IX's remedies would ignore

this larger federal scheme and the remedies provided by it,

particularly those of Title VII.

B.

We are persuaded that Congress intended Title VII to exclude

a damage remedy under Title IX for individuals alleging employment

discrimination. In G reat American Federal Savings & Loan Ass'n v.

Novotny , 442 U.S. 366, 378, 99 S.Ct. 2345, 60 L.Ed.2d 957 (1979),

the Court held that Title VII preempts § 1985 actions alleging

violations of Title VII rights. Confronting a situation much like

the one before us, the Court noted that "[i]f a violation of Title

VII could be asserted through § 1985(3), a complainant could avoid

most if not all of [Title VII's] detailed and specific provisions

of the law [and]

. . . . could completely bypass the administrative

process, which plays such a crucial role in the scheme established

by Congress in Title VII. " Id. at 375, 376. In addition, the

C ourt in B rown v. General Servs. Admin.

, 425 U.S. 820, 835, 96

S.Ct. 1961, 48 L.Ed.2d 402 (1976), held that Title VII provides the

exclusive judicial remedy for federal employees' claims of

employment di scrimination. In B rown

, the Court expressly noted

that "[i]n a variety of contexts the Court has held that a

precisely drawn, detailed statute pre-empts more general remedies."

Id. at 834.

Drawing upon this body of Supreme Court precedent, we held in

Irby v. Sullivan , 737 F.2d 1418, 1428 (5th Cir. 1984), that Title

VII is the exclusive remedy for violations of rights created by10

Title VII itself. Following N ovotny

, we concluded that "unimpaired

effectiveness can be given to the plan put together by Congress in

T itle VII only by holding that deprivation of a right created by

Title VII cannot be the basis for a cause of action under § 1983."

Id. (citation, internal quotation marks, and alterations omitted);

see also Johnston v. Harris Cty. Flood Control Dist.

, 869 F.2d

1565, 1574 (5th Cir. 1989) (noting that "a violation of § 704(a) of

Title VII, alone, will not constitute an underlying statutory

violation for purposes of imposing liability under § 1983"), cert.

denied

, 493 U.S. 1019, 110 S.Ct. 1019, 107 L.Ed.2d 738 (1990).

Other circuits have agreed, holding that Title VII's comprehensive

remedial scheme precludes § 1983 suits based upon violations of

Title VII rights. S ee Day v. Wayne Cty. Bd. of Auditors

, 749 F.2d

1199, 1204 (6 th Cir. 1984); A lexander

, 773 F.2d at 856; Allen v.

Denver Pub. Sch. Bd.

, 928 F.2d 978, 982 (10th Cir. 1991). Indeed,

the "precisely drawn, detailed enforcement structure" of Title VII

provides the exclusive remedy for Title VII rights. P olson v.

Davis , 895 F.2d 705, 710 (10th Cir. 1990).

We recognize that the legislative history of the Equal

Employment Op portunity Act of 1972, which extended Title VII to

state and local governmental employee s such as Dr. Lakoski,

discloses that Congress did not intend Title VII to preempt § 1983

claims based upon rights al ready held by individuals, such as

constitutional rights. The House report accompanying the Act

stated:

In establishing the applicability of Title VII to State

and local employees, the Committee wish es to emphasize2 The minority report objected to the Act on the ground

that it did not make Title VII the exclusive remedy for employment

discrimination, noting that "[d]espite the enactment of title VII

of the Civil Rights Act, charges of discriminatory employment

conditions may still be brought u nder prior existing federal

statutes such as the National Labor Relations Act and the Civil

Rights Act of 1866." H.R. Rep. No. 238, 92d Cong., 1st Sess.

(1971), reprinted in 1972 U.S.C.C.A.N. 2137, 2175.

11 that the individual's right to file a civil action in his

own behalf, pursuant to the Civil Rights Act of 1870 and

1871, 42 U.S.C. §§ 1981 and 1983, is in no way

affected.

. . . Title VII was envisioned as an

independent statutory authority meant to provide an aggrieved individual with an additional remedy to redress

employment discrimination. Two recent court decisions

have affirmed this Committee's belief that the remedies

available to the individual under Title VII are coextensive with the individual's right to sue under the

provisions of the Civil Rights Act of 1866, 42 U.S.C.

§ 1981, and that the two procedures a ugment each other

and are not mutually exclusive. The bill, therefore, by

extending jurisdiction to State and local government

empl o yees does not affect existing rights that such

individuals have already been granted by previous

legislation.

H.R.Rep. No. 238, 92d Cong., 1st Sess. (1971), reprinted in 1972

U.S.C.C.A.N. 2137, 2154. 2

However, that Congress in extending Title VII's pro tective

umbrella to state and local governmental employees did not intend

Title VII t o preempt § 1983 suits based upon "rights that such

individuals have already been granted"

-- such as constitutional

rights -- says nothing about Congress' intent regarding Title IX.

Title IX did not exist at the time that the House report was

drafted nor at the time that the Equal Employment Opportunity Act

of 1972 was enacted. Reviewing the House Report, the Sixth Circuit

in Day v. Wayne County Bd. of Au ditors rejected the idea that

Congress intended, outside th e narrow confines of conduct that3 Compare 42 U.S.C. § 2000e-2(a)(1) (providing that it

shall be unlawful for employers, which include state and local

governments, "to fail or refuse to hire or to discharge any individual, or otherwise to discriminate against any individual

with respect to his compensation, terms, conditions, or privileges

of employment, because of such indi vidual's . . . sex") w ith 20

U.S.C. § 1681(a) (providing that "[n]o 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").

12 violated both Title VII and other, pre-existing federal rights, to

permit individuals to circumvent Title VII's procedures:

We believed the [House] committee referred to the right

to sue under § 1983 for constitutional violations or for

violation of statutes which protected such employees

before the enactment of the 1972 amendmen ts. Claims

under these existing laws were not affected; they could

be pursued along with claims under Title VII for the

purpose of obtaining additional remedies. However, we do

not read this language as expressing an intent that where

employer conduct violates only Title VII, which created

new rights and remedies for public employees, an aggrieved employee may sue under both Title VII and

§ 1983.

749 F.2d at 1204-05.

Congress enacted Title IX only months after exten ding Title

VII to state and local governmental employees. That Congress

intended to create a bypass of Title VII's administrative

pr ocedures so soon after its extension to state and local

governmental employees is an extraordinary proposition. Title IX's

similarity to Title VII belies the contention. Although phrased

differently, 3 both Title VII and Title IX protect individuals from

employment discrimination on the basis of sex. Any difference

between their prohibitions of sex discrimination is not compelled

by statutory language.13

The legislative history of the Education Amendment of 1972

also suggests that the Title IX right to be free from sex

discrimination in employment is no different from the Title VII

right. At the time that Congress began to consider the legislation

that would eventually become the Educatio n Amendments of 1972,

Title VII exempted educational institutions from its coverage. As

a consequence, the original House bill proposed amending Title VII

of the Civil Rights Act of 1964 to remove the exemption for

educational institutions. S ee H.R. 7248, 92d Cong., 1st Sess.

§ 1006 (1971). The House Report accompanying the Education

Amendments of 1972 explained:

One o f the single most important pieces of legislation

which has prompted the cause of equal employment

opportunity is Title VII of the Civil Rights Act of 1964

which prohibits discrimination in private employment

based on race, color, religion, sex or national origin.

The Act prohibits any practice by employers which would

tend to discriminate against an employee or prospective

employee on the bas is of that person's race, religion,

sex or national origin. Title VII, however, specifically

excludes ed ucational institutions from its terms. The

title would remove that exemption and bring those in

education under the equal employment provision.

H.R.Rep. No. 554, 92d Cong., 1st Sess. (1971), reprinted in 1972

U.S.C.C.A.N. 2462, 2512. The passage of the Equal Employment

Opportunity Act of 1972 , which removed Title VII's exemption for

educational institutions as well as extending Title VII's coverage

to state and local government employees, obviated the need for the

Education Amendments to close the loophole in Title VII. The final

bill enacted by Congress omitted the la nguage amending Title VII

but left the provision prohibiting sex discrimination in federally

funded educational institutions.14

The House report's reference to Title VII s uggests that, in

enacting Title IX, Congress chose two remedies for the same right,

not two rights addressing the same problem. Title VII provided

individuals with administrative and judicial redress for employment

discrimination, while Title IX empowered federal agencies that

provided funds to educational institutions to termina te that

funding upon the finding of employment discrimination. In other

words, Con gress intended to bolster the enforcement of the preexisting Title VII prohibition of sex discrimination in federally

funded educational institutions; Congress did not intend Title IX

to create a mechanism by which individuals could circumvent the

pre-existing Title VII remedies.

Administrative regulations also suggest that Title IX's

proscription of sex discrimination, when applied in the employment

context, does not differ from Title VII's. Department of Justice

regulations governing procedures for investigating charges of

employment discrimination brought under Title IX provide that "[i]n

any investigation, compliance review, hearing or other proceeding,

agencies shall consider title VII case law and EEOC Guidelines, 29

CFR parts 1604 through 1607, unless i napplicable, in determining

whether a recipient of Federal financial assistance has engaged in

an unlawful employment practice." 28 C.F.R. § 42.604 (1994). The

Equal Employment Opportunity Commission's regulations adopt an4 Regulations promulgated by agencies charged with

enforcing Title IX provide that "[t]he obligations imposed by

[Title IX] are independent of, and do not alter, obligations not to

discriminate on the basis of sex imposed by

. . . Title VII of the

Civil Rights Act of 1964." S ee 34 C.F.R. § 106.6(a); s ee also 7

C.F.R. § 15a.5(a); 10 C.F.R. § 1040.24(a); 45 C.F.R. § 86.6(a).

However, the reference to Title IX as "independent of" Title VII

indicates that the administrative finding of discrimination under

Title VII is not a prerequisite to such a finding under Title IX.

It does not indicate the entirely different proposition, which is

at issue in this case, that Title IX provides an alternative remedy

for unlawful employment practices already prohibited by Title VII.

5 Contrary to these decisions from other circuits, we

stated in Chance v. Rice Univ.

, 984 F.2d 151, 153 (5th Cir.), reh'g

denied

, 989 F.2d 179 (5th C ir. 1993), that Title IX claims of

employment discrimination are properly analyzed under the

intentional discrimination standard of Title VI, not Title VII.

However

, we later retreated from our statement in Chance that Title

VI principles govern Title IX claims of employment discrimination.

Chance v. R ice Univ. , 989 F.2d 179, 180 (5th Cir. 1993) (holding

that "we therefore need not decide whether [Chance's] claim should

have been analyzed under [the Title VII] standard").

15 identical view of Title IX's scope. S ee 29 C.F.R. § 1691.4

(1994). 4

Finally, other circuit courts have acknowledged t h at the

prohibitions of discrimination on the basis of sex of Title IX and

Title VII are the same. S ee Preston v. Commonwealth of Va. ex rel.

New River Community College

, 31 F.3d 203, 206 (4th Cir. 1994)

(holding that Title VII principles govern claims of emp loyment

discrimination under Title IX); Roberts v. Colorado S tate Bd. of

Agric.

, 998 F.2d 824, 832 (10th Cir.), cert. denied

, 114 S.Ct. 580,

126 L.Ed.2d 478 (1993); Lipsett v. University of Puerto Rico , 864

F.2d 881, 897 (1st Ci r. 1988); M abry v. State Bd. of Community

Colleges & Occupational Educ.

, 813 F.2d 311 (10th Cir.), cert.

denied , 484 U.S. 849, 108 S.Ct. 148, 98 L.Ed.2d 104 (1987). 516

Given this compelling evidence that Title IX prohibit s the

same employment practices proscribed by Title VII, we hold that

individuals seeking money damages for employment discrimination on

the basis of sex in federally funded educational institutions may

not assert Title IX either directly or derivatively through § 1983.

V.

Title VII offers valuable rights to victims of employment

discrimination. We are not persuaded that Congress offered Title

IX to employees of federally funded educational institutions so as

to provide a bypass to Title VII's administrative procedures. We

REVERSE the judgment of the district court and RENDER judgment for

the University. The cross-appeal is DISMISSED as moot.