Warren E. Burger: We'll hear arguments next in 77-926, Cannon against the University of Chicago. Mr. Cannon.
John M. Cannon: Mr. Chief Justice, may it please the Court. This case presents as a matter of first impression the issue of whether Title IX of the Education Amendments 1972 maybe enforced in a federal civil action the particular case involves in the application to medical school which allegedly was denied on the basis of sex. Title IX provides impertinent part no person in the United States shall on the basis of sex be excluded from any education program receiving federal financial assistance. At Bedrock, this case asked the question in words of this Court from Allen versus the State Board of Elections whether that sweeping promise of Congress is to be merely an empty promise. The current operating plan of the Department of Health, Education and Welfare's office for civil rights contemplates a predicted backlog of 3570 civil rights complaints including 889 which includes allegations of sex discrimination. Title IX applies to approximately 97,000 institutions, a number of participants according to HEW is approximately 55 million. As of September 30, 1976, HEW had asked 20,318 school districts and colleges to file compliance statements. By the following March, 1977, only 6742 had done so. The enforcement task is enormous, much more enormous than that faced by the Attorney General with respect to election laws and considered by this Court in the Allen case. In fact, HEW has declared itself it has no hope of making a complete enforcement job for this spread of concern. Now HEW in its brief to me, made the most significant point of any other briefs including our own and that is that Congress clearly contemplated that voluntary compliance would be the primary means for enforcements not only of Title IX but of its predecessor legislation Title VI subsequent legislation dealing with handicap and age discrimination.
Warren E. Burger: If HEW sees a violation here do you have any hypothesis to suggest why HEW has not proceeded to enforce the statute as you construe the statute?
John M. Cannon: Yes, I -- two things, I -- obviously, there was some confusion between the District 5 office in Chicago and the National Office. The National Office in the opinion which is attached to the petition for certiorari has long maintained the position and particularly with respect to Title IX since September of 1974 that there is a private right of action to enforce Title IX whereas the District office went into the Federal District Court and denied the existence of the private right of action and said they were proceeding. And indeed there is in the appendix a copy of my correspondence with the United States attorney in Chicago that indicated the regional director plan to conduct this particular investigation during the first half of January 1976.
Warren E. Burger: Would you agree that the Congress has given HEW a lethal weapon to deal with these problems?
John M. Cannon: Quite frankly Your Honor, the Carnegie Foundation characterized it as the atomic bomb and I think it's perhaps too lethal in the sense that we referred in our reply brief to -- going through the fund-cutoff procedures with HEW as playing Russian roulette with an institution. Too many of our wonderful institutions of higher learning and other federally assisted organizations are dependent for anything like their current mode of operation on federal funds. Putting the federal funds at risk is one thing that can be avoided by judicial action and HEW pointed that out in the --
Warren E. Burger: Well, Congress -- you're making a very good argument that the Congress should have affirmatively, clearly and unequivocally provided for a private action as an alternative but is that an argument that we should weigh?
John M. Cannon: Well, in considering why they may not have done that, I would point out that legislating in that particular area gets very touchy particularly with the background being Title VI. And consider the fact that this Court probably would not have tolerated and Congress was quite well aware that it would not tolerate a reverse of that provision. And historically, there has not been an expressed authorization for federal jurisdiction to remedy what is at Bedrock constitutional violations by federal authorities and in this case as well as Title VI, it's the utilization of federal funds to support discriminatory activity which may well be and in many cases clearly was recognized as constitutional violations so that the absence of a provision is not really new. In fact, the greatest powers of this Court tracing back in the private right of action to some recent cases with Bivens and Bell versus Hood but more deeply through Marbury and all the way back to the King's bench that where there is a legal right provided unless there is a legal remedy, that it's not much of a right and that of course is our basic question. Is this an empty promise or will it be enforced and for the present, it simply must be enforced by the courts or it's not going to be enforced at all. HEW, the one to do the enforcing has told us so and the facts are quite clear. Moreover, even if HEW could conceivably somehow get around to this enormous number of cases, the regulations that they have promulgated and by the time Title IX came along and followed with the other legislation, these regulations were in existence and known to counties.
William J. Brennan, Jr.: How many of them are there do you suppose? How many cases are you talking about?
John M. Cannon: Cases, the current predicted backlog on the civil rights area for office of civil rights is the 3570 predicted as of this October with 889 involving allegations of sex discrimination.
William J. Brennan, Jr.: So if you're talking about private enforcement, I suppose you're talking about the possibilities of that many cases plus a lot others that would -- which would never get into the HEW at all.
John M. Cannon: Right. 55 million participants is the figure of the extreme potential and hopefully --
William J. Brennan, Jr.: We could easily handle those.
John M. Cannon: Not at all. It is the immediacy of the judicial action as HEW pointed out. Many institutions like all of us would like to go on our own way and not consider something, be accused of a violation of civil rights. It's not a pleasant thing to contemplate. But to take it seriously and provide meaningful internal procedures, immediate outside enforcement by an independent agency be it a Court or HEW is necessary. But at least for this time, unless the courts can step in and provide immediate supervision, there cannot be enforcement of the sweeping language of Congress. And when the Court considers the fundamental rights that are covered by that promise, I would suggest to the Court that neither the judiciary nor the executive or the Congress itself has anymore important business than enforcing of social justice among our own citizens.
Warren E. Burger: Now, you've spoken of these numbers, that 55 million figure of course is pretty staggering but 3500 isn't all that staggering. That's roughly a hundred cases per districts, federal district although they would not be evenly spread of course. Did I say a hundred, I meant to say 300, about 300 cases per district. That's just a little bit over the case load for one district judge on average case load figures. So it isn't quite staggering as the 55 million potential, is it?
John M. Cannon: Absolutely and it's really, as HEW pointed out in their brief, the availability of the judicial remedy that is going to lead to meaningful internal compliance procedures. And whether one views the procedure as primarily aimed at providing outside judgement on the internal affairs. And any judicial review being de novo or under a standard of clearly wrong or some other such standard, the importance is its immediacy. A district judge just like an agency is going to be influenced by the quality of the internal investigation, the internal record that's made on considering the matters at issue. Thank you.
Warren E. Burger: Mr. Solicitor General.
Speaker: Mr. Chief Justice, may it please the Court. The Government's position in this matter is essentially that presented by my Brother just a few moments ago that we have a statute that requires the construction of this Court to determine whether it was -- whether it affords a private remedy against a private party that is a recipient of federal funds in the education area. We argue that three years before the statute was enacted, namely in 1969 in Allen versus the State Board of Election, this Court was confronted with the necessity of construing a similar statute. That statute provided no person shall be denied the right to vote for failure to comply with a newly covered enactment that the statute consisted of. That of course required the preclearance of changes in election laws. And there was an elaborate scheme of enforcement which ultimately required the Attorney General to bring an action in -- with the restricted venue to the District of Columbia to see whether the election change required preclearance to see that it didn't offend the objectives of the statute. Now in a case with as complicated, an administrative procedure for enforcement even requiring the bringing of the action by the attorney general in a particular venue, this Court nevertheless looking at the language, no person shall be denied the right to vote for failure to comply found an intent on the part of the Congress not only to create a private right in an individual but also to afford him a remedy in the federal courts.
William H. Rehnquist: General McCree, what do you suppose would be the basis of federal jurisdiction in the case such as this against the University of Chicago where you don't have any state action?
Speaker: The funding, the federal funding of the agency, I believe the Federal Government has the authority -- the Congress has the authority to determine how its funding will be expanded by a recipient.
William H. Rehnquist: No doubt of that but what statutory provision would confer jurisdiction on the federal courts. I would suppose 1343 would do it in the case of a federal -- of a state university but what about a private university?
Speaker: Well, 1343 Section 4 which isn't restricted to a state, the action -- our action under the color of a state right would be the jurisdictional basis for it. And if Title IX was found to create a private cause of action, 13434 would afford jurisdiction for federal court to entertain it. And that's the crux of our argument that Section 9 does create a private cause of action against a private recipient of federal funds. And if it does jurisdiction lies and the Court should've heard the matter.
Potter Stewart: How about 1331?
Speaker: Well, 1331 is a general federal question statute and 1331 would --
Potter Stewart: $10,000 or more (Voice Overlap) --
Speaker: -- require a monet -- jurisdictional amount and 13434 is -- has been construed as not requiring it.
Potter Stewart: Has that jurisdiction --
Speaker: And so we would look to that of whether Mrs. Cannon would have -- could show the jurisdictional amount is problematic. She didn't attempt to. Her action is clearly under 13434.
Byron R. White: Would you think -- do you think Title IX would be construed to be a civil rights statute?
Speaker: I would say that Title IX should clearly be construed to be a civil right statute. As a matter of fact, the legislative history indicates that Title IX was originally contemplated as an amendment to the Civil Rights Act of 1964. But later was enacted as part of the Education Amendments of 1972 but its clear language that no person shall on the basis of sex be denied participation in or be -- or deny the benefits of or be discriminated against in any federally financed education program clearly is the kind of language the Congress has used when it has intended to confer a private right of action to remedy a deprivation of civil rights. Senator Birch Bayh who was the sponsor of Title IX in the Senate, clearly stated that the purpose of Title IX was to eradicate the years of discrimination against particularly women but it wasn't limited to women against persons on the basis of sex. So I think 13433 would certainly -- its requirement of it being a civil rights statute would certainly be satisfied in that respect.
Speaker: You make enforce through --
Speaker: 634, I beg your pardon and thank you for correcting me. We submit that the Congress on the basis of the construction given to language which commences no person shall be denied a specific right has reason to and does in fact utilize that language when it intends to create a private right and to create a private remedy. We suggest that because in a series of Civil Rights Acts whenever the Congress has intended they're not to be a private right of action, it is expressly stated that the administrative remedy will be exclusive and --
Byron R. White: (Voice Overlap) some other sections of the Civil Rights Act when they wanted a private cause of action, they provided for it.
Speaker: That is correct if the Court please but it is done so for a specific purpose of showing a limitation on the private cause of action that was created. For example in Title II of the Civil Rights Act of 1964 concerned with public accommodations, there was the expressed grant of a private action but it was specifically limited and restricted similarly in Title VII which was the employment, the qual employment opportunities part of the Civil Rights Act of 1964. There was the express grant of a private act but specifically limited to require the utilization of state facilities for processing claims of this sort and then subsequently the federal agency that was set up and requiring certain time limits to be followed.
Byron R. White: And you think that if Congress had expressly provided for a private cause of action under this section, it wouldn't have limited it or conditioned it upon exhausting administrative remedies or anything like that?
Speaker: I can only suggest that the Congress did not do so and when it enacted Title VI of the Civil Rights Act of 1964, it also did not do so. And of course, Title VI --
Byron R. White: Well, that's a -- that is somewhat of a bootstrap.
Speaker: It may very well be but the Congress has a clear pattern here of using the language --
Byron R. White: Yes, it's maybe clear one way or the other.
Speaker: I think that so. I think that explains why we're here this morning.
Byron R. White: Exactly, I know.
Speaker: But Congress apparently has relied upon this language formula to create a private cause of action when it intends to do this. Now on the other hand, the Congress has used other kinds of language formulae when it has intended to do it. For example, the Congress should have said -- could have said that no educational institution shall -- or any educational institution that discriminates on the basis of sex will not receive federal funding. And in such an instance, I would be hard put to argue that someone who felt discriminated against could find from that a private right created in him and a federal remedy to vindicate that right. But here, the language consistently runs through the series of civil rights actions which are intended to remedy against discrimination on the basis of race, on the basis of sex, on the basis of age, on the basis of physical handicaps. This language no person shall be discriminated against. And when it intended to give a restricted right of action, it so expressed itself as it did in Title II and in Title VII, when it intended to have no private cause of action despite the use of that language. It has expressly stated that the administrative remedy will be exclusive as it did in Title III of the Older American Amendments of 1975 but when it did neither, it appears that the Congress intended then for the recipient of this right to be afforded a federal remedy.
Lewis F. Powell, Jr.: Mr. Solicitor General, what import if any do you attach to Senator Keating's inability to get a private right of action included in the original Title VI?
Speaker: Well, I think that's the most difficult part of my argument here and all I can suggest was that the -- he knew too, however, that if this language formula was used that he need not win his effort for an expression but an expressed grant. And the Congress did use this linguistic formula even though he was unable to get there. If the Congress had intended not to grant a private remedy then it would not have concluded nearly with rebuffing Senator Keating it would seem to me but it would've expressed the contrary or would've utilized contrary language as we can see it did in this other statutes. This Court of course address the -- this whole matter of determining when a -- when there should be an extension of a civil remedy to a person injured by another's breach of a right granted in the case of Cort versus Ash in 1975 and suggested for questions that must be answered and I would like to consider those for a few minutes. The first one of course is whether the plaintiff is one of the class for whose special benefit the statute was created. I think its irrefutable here that Mrs. Cannon is one of the class for whose special benefit the statute was created. I think we can conclude without argument that she was a person who was to have received a federal right and that she did indeed receive it. I argued as I we do on our brief on page 46 in the following pages that the use of the language has been consistent in this respect. The second question of course is whether there is any indication of legislative intent to create a private remedy or not. Now of course if there was convincing evidence of intent, we wouldn't even apply the Cort versus Ash formula if there was unmistakable evidence that there was no intent that would conclude our discussion and if there was unmistakable evidence, there was intent, it would as well. Here, we have to conclude that the evidence is ambivalent. Nevertheless, we suggest that such evidence does exist, does favor the finding that the legislature intended to do it. I suggested before the consistency of the language and I direct the Court's attention also to the fact that there were lower court cases granting a private remedy in Title VI after which Title IX was adopted at the time the Congress adopted Title IX. Now, whether the Congress was acutely and actually aware of those decisions, I can't argue but I certainly can suggest that they were there for the Congress' direction. But even if we concede that the second point that of legislative intent is ambivalent, we proceed to the third point, is it consistent with the underlying purpose to imply a remedy. I suggest that the answer here is a compelling yes. My Brother has indicated the problem of the -- of numbers that would make it difficult for persons whose rights were offended to get a private remedy. I would also add that the cutoff isn't a remedy for Mrs. Cannon and if the Government should cutoff the funds, she and many persons like here would still be without a remedy. Also in the case of a single grant, single federal grant with nothing in the way of sustaining funds contemplated, there would be no need for a cutoff. And yet she would be without any administrative remedy at all because there isn't anything the administrative agency could do for her. And finally, whether this is a right traditionally relegated to state law, I suggest that this is uniquely federal because federal funds are involved and the Federal Government has a right to be free from discrimination or to see that its funds are not employed to discriminate. I would conclude by saying that private litigation is an indispensable compliment of the Government action if the goals of Title IX, freedom from discrimination on the basis of sex are to be achieved. Thank you.
Lewis F. Powell, Jr.: Mr. Solicitor General, may I come back a moment to the distinction you make between Title VII and Title IX with respect to Congress in Title VII having impose limitations on the use of the private remedy.
Speaker: Yes sir.
Lewis F. Powell, Jr.: What puzzles me is why Congress should have taken a different view if it did in Title IX in view of the capacity of the private remedy to disrupt education and the freedom of faculties to choose student bodies. In this case for example, there were some 2,000 applicants whose academic credential were superior to the plaintiff in this case so that I suppose if they had chosen to bring individual suits, there could have been 2000 additional suits. The disruption to the colleges would be vastly greater one would think than the disruption to private industry as result of claims under Title VII. What policy considerations could've motivated Congress to make the distinction you draw?
Speaker: Mr. Justice Powell, I believe there are two answers to the question. The first one is Title VII, the employment case was an area under which the Congress has not ventured before and the basis for its jurisdiction there was the Commerce Clause. And it was extending some previously understood concepts of the Commerce Clause and therefore I thought it should closely restrict their private remedy as it explored this new area of extending federal power. Here under Title IX, there is absolutely no question about the power of the Congress to control the spending of federal funds. And so it need not have felt as queasy about proceeding -- about forwarding a private remedy there. I think the second answer is --
Lewis F. Powell, Jr.: Mr. -- may I comment on your first answer. In view of the decisions of this Court under the Fair Labor Standards Act, how could Congress had been queasy about its power under the Commerce Clause to enact Title VII?
Speaker: Well --
Lewis F. Powell, Jr.: Window washers had been held to be engaged in interstate commerce.
Speaker: But the Congress had not done so in the -- in any discrimination areas. This was his first venture in that field.
Lewis F. Powell, Jr.: Does that make a difference?
Speaker: Well, I would think it would. I would think the Fair Labor Standards Act rationale was the impact of just economic factors on the commerce and here, the nation at the time Title VII was enacted was finally addressing some unfinished business of eliminating discrimination based on race and there were reservations about it. And --
Lewis F. Powell, Jr.: You had a second reason and I interrupted you.
Speaker: I would suggest that the second reason is unawareness that although Title VI had been lost since 1964, there had been no disruption of educational programs across the nation as the question suggested might result if 2000 students who ranked below the particular applicant brought a case. My experience -- my observation has been that Title VI has not resulted in an inundation of the courts by -- on the basis of persons who believe themselves aggrieved because of race. And I don't think the same thing would happen under Title IX on the basis of sex and I think the Congress was probably aware of that. If --
William J. Brennan, Jr.: General McCree before you sit down. I'm curios about one thing. In the Government's brief on page 21, there's a reference to the Lau case and to my concurring opinion in it, the brief reads the relevant portion of that opinion not joined by any other member of the court states. I don't know who wrote the brief but I think that statement is incorrect. There was another member of the court who joined me.
Speaker: I apologize for the -- I apologize for the error and I appreciate the Courts going into my brief.
William J. Brennan, Jr.: I read it twice to be sure what I was saying was correct.
Speaker: I'll try not to have that happen again Mr. Justice. Thank you.
Warren E. Burger: Thank you Mr. Solicitor General. Mr. Bernstein.
Stuart Bernstein: Mr. Chief Justice, may it please the Court. The -- it's been applied in the arguments of petitioner and the Solicitor General that Title VI and Title IX are to be interpreted together. We may recall that Title VI was a subject to some consideration by the Court in the Bakke case. It is our position that Section 1 of each of these Titles states a policy and that Section 2 creates a very elaborate enforcement procedure and that that enforcement procedure is exclusive. We think that examining the terms of the statute on their face reveals this. We think the setting of Title VI in the Civil Rights Act of 1964 where other Titles did contain specific provision for private remedy confirms the intent which appears from the face of it. But most important we think the legislative debates which gave flesh to what appears on the face of the statute confirm the assertions that we have made in our brief. Now, throughout this litigation, we have constantly referred to the legislative debates, what was said, what exchanges we have on the floor of the Senate and the House and up until last Thursday, we have had no response to this from the petitioner. Last Thursday a brief was filed, a reply brief which sets out some excerpts from the legislative debates which purport to make a point that the first section of Title VI and by implication Title IX is independent of the enforcement procedure under Section 2 of each of these Titles and that therefore the implication is that a part of that right of action could be implied even though there was no expressed provision. Since I could not anticipate these references nor will I have a further opportunity to respond, I would like to start my argument with the reference to these arguments by -- in the petitioner's reply brief and show that they completely is -- or misstated when I say that advisably, it certainly do not support the position asserted. The first exchange described in the reply brief is one between Senator Talmadge and Senator Humphrey.
Byron R. White: You're speaking -- the reply brief of the --
Stuart Bernstein: Yes sir I am.
Byron R. White: -- of the federal respondents?
Stuart Bernstein: No, of the petitioner --
Byron R. White: Okay.
Stuart Bernstein: -- Mr. Justice White.
Potter Stewart: Filed January 4th?
Stuart Bernstein: Yes sir. No, filed last Thursday, whatever date that was --
Potter Stewart: (Voice Overlap) it was January 4th --
Stuart Bernstein: -- and I'll refer to page 14 of that brief.
Potter Stewart: Alright.
Stuart Bernstein: By the exchange between Senator Talmadge and Senator Humphrey has described and it concludes with the following quotation which is set out in the brief. And it says Senator Talmadge continued, the people have the authority to go to courts --
John Paul Stevens: Mr. Bernstein I'm sorry --
Stuart Bernstein: Yes sir.
John Paul Stevens: -- what page of the reply brief on the --
Stuart Bernstein: I'm sorry. Page 14 Mr. Justice Stevens. It says that Senator Talmadge continued, I'm quoting, "The people have the authority to go to Court, in the Senator admits they have that right". And Senator Humphrey is quoted as responding, "Yes". Now the implication of this is that they have the right to go to Court under Section 1, Title VI and Title IX. Well, not so. This was the culmination of a long statement by Senator Talmadge opposing the Civil Rights Act in its entirety in Title VI in particular. And the point he was making that there was a preexisting right under 1983 for a right of action against the state action where discrimination was alleged whether there was or was not federal funding and his point was that the -- this Act which gave the power to the executive to cut off federal funding was totally unnecessary. It was very oppressive and had the seeds for destruction of local government “that I quote where he said just about that. When enhanced to the extent there was a legitimate governmental interest in this matter, it was already covered under 1983. And it was in this context that he made the point, the people have the authority to go to court and the Senator admits they have that right. He was speaking of the then existing state of the law not with the bill which was being considered and Senator Humphrey responded, "Yes, they do". And then Senator Talmadge which sort of sums up the point he was trying to make said, "Why does not the Senator relying on the Court's authority instead of giving arbitrary capricious wholesale punitive power to some federal bureaucrat to starve entire cities, towns, states and regions at one fell swoop". He simply didn't like Title VI at all and he was simply urging on the Senate that they not adopt it in its entirety. Senator Humphrey responded and I'm reading now from the Congressional Record 110, page 5246 which is not included on the reply brief. Senator Humphrey replied, but we develop here what I call the legislative history. I wish to make it clear that Section 602, second section is a limitation on the enforcement of the law set out in Section 601 of Title VI to those agencies affected by Title VI. Now that exchange disturbed Senator Case because he thought that that statement could be implied as limiting the preexisting rights under 1983. So Senator Case got into the Act and he said to Senator Humphrey, I'm disturbed about that limitation language. I don't want this statute to take away preexisting rights. And that's when the exchange culminated in the two quotations you find in the bottom of page 14. Now, you'll see that there are dots indicating omissions from those quotations. Now, the dots are very significant, to the heart of this case but they have been omitted. I'd like to fill the dots in if I may. Senator Case says and I'm quoting from what's in the brief, “For myself, I would not be satisfied if this language in Section 602 is intended to limit existing rights of individuals under the constitution or to limit the rights expressed in Section 601 in any substantial sense…” alright, here is what the dots say. Federal departments or agencies with authority to disperse loans, grants or to make contracts in order to eliminate discrimination in programs in which those contracts, loans or grants are involved must proceed in the fashion stated. With that I agree and then he goes on. “That is the intent. However, it is not intended to limit the rights of individuals if they have any way of enforcing their rights apart from the provisions of the bill. Apart from the provisions of the bill by way of suit or any other procedure, the provision of the bill is not intended to cut down any rights that exist”. That was the thrust of the discussion which is set out here on page 14. And then Senator Humphrey responded as it was set out here. "I thoroughly agree with the Senator insofar as the individual is concerned…” Then you see dots again. Now, here's what the dots say, “As a citizen of the United States, he has his full constitutional rights. He has his full -- he has his right to go to court and institute suit and whatever may be provided in the law and in the constitution". They were talking about existing law not what the bill would do and the implication of the reply brief that somehow this was intended to enlarge these rights or the change of existing law is completely foreclosed by the discussion I have alluded to. Now, there was one more --
William J. Brennan, Jr.: Doesn't that boil down Mr. Bernstein to suggesting that they were not opposed to a private right of action though.
Stuart Bernstein: Well, sir if you anticipate me because Senator Keating then immediately chimed in. That he said --
William J. Brennan, Jr.: Talking about his own bill.
Stuart Bernstein: Pardon?
William J. Brennan, Jr.: Talked about his own bill.
Stuart Bernstein: Well, no, he's -- he comes right along and he said that he understood the point that Senator Case was making and he was glad he got it cleared up but he had another problem. His problem was that the bill did not provide a private right of action for the individual and here is what he says under Sections -- under Section 603, that's the judicial review section. A state or political subdivision of a state or an agency of either which has denied funds because of discrimination -- because discrimination is taking place is given the right of action in Court but there is no correlative right in the citizen. He is not talking about his bill, he's talking about this bill. It's before them for consideration. If funds are granted to discriminatory projects by public officials, the citizen who is denied the benefits of the project has no correlative right to bring a suit in Court and he should have. And that's why he find the bill objectionable but they never did change the bill Your Honor. Now, clearly, he would like to have had a private right of action but what he said it isn't in there and I don't like it and he never got it in. Now three weeks --
Warren E. Burger: You say that negates any idea that Congress submitted it because they thought it was unnecessary and already in there.
Stuart Bernstein: Yes sir. Sir, I submit there is no other conclusion to be drawn but that they wanted to get it in, it wasn't in there and he didn't like the fact that it was in there.
Thurgood Marshall: Did Senator Case introduced --
Stuart Bernstein: Pardon?
Thurgood Marshall: -- an amendment -- did Senator Case introduce an amendment along that line?
Stuart Bernstein: Well, if he did sir, I'm not aware of it.
Warren E. Burger: Senator Keating did, did he not?
Stuart Bernstein: Senator Keat -- well, what Senator Keating did was ask the Department of Justice of drafting the bills to include such a provision and they did not.
John Paul Stevens: But was that earlier Mr. Bernstein?
Stuart Bernstein: That was earlier.
John Paul Stevens: Yes.
Stuart Bernstein: But three weeks later then the -- I'm -- what I quoted occurred on March 13, 1964, three weeks later. I believe was on April 1st, Senator Keating again took the floor and it was during the course of Senator Ribicoff's analysis of Title VI and it was there Justice Stevens that you find a quotation which was set out in your concurring opinion. And during the course of that, Senator Keating got the floor from Senator Ribicoff and he said, and I have to read this because I think this is also quite critical. As Senator Ribicoff has pointed out, both he and I felt that the original Title -- this incidentally is quoted on page 24 of our brief, may it please the Court. As Senator Ribicoff has pointed out, both he and I felt the original Title VI proposal was objectionable and that it emphasized the cutting off of federal funds rather than the ending of discrimination. We favor a provision allowing the administrator to institute a civil action to eliminate the discrimination and we favored judicial review of the determination to withhold federal funds. Parenthetically, while we favor the inclusion of the right to sue on the part of the agency, the state or the facility which has deprived the federal funds, we also favored the inclusion of a provision granting the right to sue to the person suffering from discrimination. This was not included in the bill. Now I submit sir --
John Paul Stevens: So he says, this was not included in the bill, he means the Department of Justice didn't include it in its bill.
Stuart Bernstein: That's correct. Well, the bill -- it's hard to describe it, that whose bill it was by this time but this was the bill now before -- under consideration. It was asked that a provision be included. The provision was not included and as Mr. Justice White has pointed out in his concurring opinion in Bakke, there were other references by other Senators to the same failure to have a provisional (Voice Overlap) --
John Paul Stevens: Yes, but the request by Senator Keating was to Department of Justice. There was no formal amendment introduced by Senator Keating or any bill proposed.
Stuart Bernstein: That's correct. But clearly the Senate knew by this exchange that they try to get one in and that it wasn't in and he was decrying it, the lack of it.
Thurgood Marshall: I don't see how you can consistently say they had try to get it in when they didn't propose an amendment.
Stuart Bernstein: Well, certainly if (Voice Overlap) --
Thurgood Marshall: They assumed that they --
Stuart Bernstein: Yes sir.
Thurgood Marshall: -- knew they could propose an amendment or why didn't they just talk?
Stuart Bernstein: Well, I suppose all of the congressional debates are just talk sir and that's --
Thurgood Marshall: On -- but when they put an amendment, it's no longer talk.
Stuart Bernstein: Well, what he is saying is he tried to get it and he didn't get it and I don't see how we could --
Thurgood Marshall: Well, why didn't he -- why did he -- did he ever make an explanation as to why he didn't offer an amendment?
Stuart Bernstein: I don't know except his concluding statement which I didn't read where he said both the Senator from Connecticut --
Warren E. Burger: What page?
Stuart Bernstein: Pardon?
Warren E. Burger: What page?
Stuart Bernstein: Oh, I'm reading in -- on page 24 of our brief where he completes the statement before the Senate where he says, however, both the Senator from Connecticut and I are grateful that our other suggestions were adopted by the Justice Department. I assume that he felt that he wasn't going to get it and he abided at that point. But clearly, he expressed the point of view that he wanted it in and he wasn't in there. And what --
William J. Brennan, Jr.: May I ask Mr. --
Stuart Bernstein: Yes sir.
William J. Brennan, Jr.: Your comments go to Title VI only or to Title VI or to Title IX.
Stuart Bernstein: No sir -- and Title IX sir because --
William J. Brennan, Jr.: But I gather -- your comments to the extent they address Title VI disagree with Mr. Justice Stevens' conclusions in Bakke?
Stuart Bernstein: Yes sir.
William J. Brennan, Jr.: I see. You think that was wrong?
Stuart Bernstein: Yes. You have -- make it difficult for me to be (Voice Overlap) to my response --
William J. Brennan, Jr.: Lest you must (Inaudible)
Stuart Bernstein: Yes, I think it was wrong.
William J. Brennan, Jr.: Of course you do. And you think Mr. Justice White's concurring opinion had the better of it.
Stuart Bernstein: I think so. I think that --
Byron R. White: But even if that were true that -- if the Congress came along and enacted Title IX, there could be a different provision in Title IX.
Stuart Bernstein: It could be.
Byron R. White: There could be a different legislative history in Title IX or there could be the existing legal environment could be such that you had to assume Congress knew what the law was or what the lower courts set the law was.
Stuart Bernstein: That's correct. That's correct and we've addressed that of course in our briefs Your Honor. I think all of us have agreed -- all the petitioners, Solicitor General all the amici in this case. There are many of them. We all agree that the legislative history of Title VI carries over to Title IX and Senator Bayh so said when he introduced Title IX. He says, “We're doing the same thing we did under Title IX provides the same procedures, the same regulations that have worked so well under Title VI”.
Byron R. White: (Voice Overlap) the courts had already sent what they thought that Title VI did even if you might disagree with what some lower court said. What if the lower courts had held this and the Senator when he was talking had those cases specifically in line?
Stuart Bernstein: Well, as the Court of Appeals pointed out below, there was no indication that any Senator or any legislator was aware of anyone of these cases that had been referred to in their briefs. Further as we have repeatedly asserted here, these cases at most were equivocal on the point because the jurisdictional basis was not necessarily Title VI itself.
Byron R. White: And I take it that it also in the legislature viewed Title IX, there were some Senators who expressly addressed the question and said, it should -- this shouldn't be -- we are not indicating that there is a private cause of action.
Stuart Bernstein: There is an implication that there is such a thing but I haven't found. We have a rather carefully calm and I'll -- in all candor. I must say we haven't found that reference (Voice Overlap) --
William J. Brennan, Jr.: Isn't it more accurate to say what they said was we don't intend to change the law whatever it is now?
Stuart Bernstein: That's -- this is the thrust of the law. Whatever the law -- it was -- whatever they did in 1964 in Title VI, that was the thrust of what Senator Bayh said when he introduced the bill. I haven't set out --
William J. Brennan, Jr.: Nothing of the colloquy that Congressman Railsback in that Judge Bauer referred to.
Stuart Bernstein: Oh, that referred not to the adoption of Title IX but to the Civil Rights attorney's award --
William J. Brennan, Jr.: Oh, that's --
Stuart Bernstein: -- which occurred just last year while this case was in the Court of Appeals on a hearing. It was an entirely different matter. What we submit is that apart from the clearer construction of the statute and apart from its setting in the Civil Rights Act of ‘64 that the legislative history which I have referred to here clearly supports our side if you apply the second test of Cort v. Ash namely, was there an attempt of Congress to deny or create? And Senator Keating says there was an intent to deny and he decried the -- that (Voice Overlap)
William J. Brennan, Jr.: Well, is that fair Mr. Bernstein. He said there was a failure to create and he was unhappy that there was a failure to create. Is that quite the same as the statute that says there shall be no other remedy except the one we've expressly provided?
Stuart Bernstein: Well Your Honor, I --
William J. Brennan, Jr.: There's no exclusivity provision in the statute.
Stuart Bernstein: I suppose we have trouble on how we read the words but what he says that the citizen who denies the benefits has no right to bring the suit in Court. I think he is saying that there is no right to bring a suit in court. He is not --
William J. Brennan, Jr.: Under the bill. No right expressly provided upon the --
Stuart Bernstein: On the bill of their passing. That's the bill they ultimately passed. Now if he says that, I -- you know we can play with the words just to putting it positively or negatively but I think he says there is no right. I think he says it almost in high (Inaudible). I think to conclude this part of my presentation, I think that this clearly --thoroughly sets out that with respect to the second test and we accept the first and fourth as set out by Solicitor General. But the second test namely what is the intent of the Congress. I think it could be -- it could hardly be clearer. That really has nothing to do whether I think the University of Chicago would be overburdened if every disappointed applicant would run to the court or if Mrs. Cannon thinks it's unfair that she doesn't have her day in the Court. It's what the Congress say and I think they spoke fairly clear and I like to --
Warren E. Burger: You haven't mentioned --before you leave that, you haven mention the Congressman Celler, attorney, the Chairman of the Judiciary Committee of the House and certainly on top of this problem but he said over on page 25 of their brief --
Stuart Bernstein: Well sir, I --
Warren E. Burger: Now was he -- it was he bearing on six -- Title VI?
Stuart Bernstein: Excuse me sir.
Speaker: Yes.
Stuart Bernstein: Page 25.
Warren E. Burger: Page 25 of your brief, yes.
Stuart Bernstein: Yes, this is Titles -- Title VI. The difficulty is that there was a very little legislative history on Title IX other than its introduction by Senator Bayh and that's why all the legislative history referred to in the briefs here goes back to Title VI. And everybody agrees, in fact its claim that one was a photocopy of the other and we don't dispute that. We think that's quite right. If there is a private action under Title VI, there's one under your Title IX. But this was all under Title VI. I'd like to get to the third test of the Court we asked namely whether it's consistent with the underlying legislative scheme. And here, I'd like to pick up the reply brief of the -- the brief of the Solicitor General. You may recall Mr. Justice White made the point in his concurring opinion in Bakke that to permit a private right of action under the first section who had been affect to be -- to bypass the elaborate administrative procedure under Section 2.
Byron R. White: Yes, the difficulty as in this case, I was the only one who filed that --
Stuart Bernstein: Well sir, I recognize that I have that burden. I -- but I'm glad to have your support. I trust (Inaudible) -- I'm hoping that my eloquence can convince some other members of the Court. The Justice Department took issue with Mr. Justice White's statement that represented a bypass -- would represent a bypass of the administrative procedure and they said there's no inconsistency. Yet they said or let me point the fact out. Mrs. Cannon's complaint was filed with them in April of 1975 and they still haven't done, acted on it. They completed their on-sight investigations, University of Chicago, Northwestern University in June of 1976. At least they so advised here in June ‘76 on-sight investigations have been completed. The question she raises concerning age raises issues national in scope. They have to have national policy on it and they assure her they will act expeditiously as possible. That letter from HEW set was in appendix for the petition for certiorari. It's from HEW to Mrs. Cannon. That was 1976 and nothing has happened yet. What they said in their original brief to this Court was that if the Court should decide there is no private right of action then they will complete their investigation. Or if there is no inconsistency between the administrative and judicial procedure why wait until this Court acts. It should be irrelevant. They should have gone ahead and completed it. They explained in their reply brief something else. They say that, and I think I can quote the words exactly. They say that since the District Court, the Courts have decided there was no private right of action and since HEW couldn't itself resolve that question, it was going to defer further action pending the outcome of this case. Nobody asked HEW to decide that. That's not their function. Their function is not to decide whether there is a private right of action. Their function is to act on administrative complaints under Section 2. It is clear that what HEW was saying that if you decide there is a private right of action, we'll just wash your hands for this matter, we won't go any further. If they don't mean that, why have they waited?
Warren E. Burger: Is it reasonable to assume --
Stuart Bernstein: Why have they waited --
Warren E. Burger: Is it reasonable to assume Mr. Bernstein that had the HEW acted in 1976 that there could have been by this time judicial review of that administrative determination?
Stuart Bernstein: Yes of course Your Honor, that is of course true and I must express some concern and sympathy with Mrs. Cannon's place. I think it's unfair that she's had to wait this long. But its -- I think it's a doing of HEW and I say that in all candor and perhaps with a little anger. I think HEW has pulled itself on by its bootstraps. It has enacted and it says, you see, we can't act and therefore, we wanted --
Warren E. Burger: Are you suggesting that they're undertaking to compel this Court to decide the scope of their responsibility instead of deciding it themselves?
Stuart Bernstein: Well, I think the responsibility is clear. They -- nobody can say they haven't suggested that they have no authority under Section 2 to proceed. I don't think they need this Court to tell them that. That's clear. I think what they're saying is that if this Court says you can go to Court then we don't proceed and that's the bypass that Justice White was talking about. It's inevitable. We got another dilemma. Let's suppose they do proceed two ways, administratively and judicially. It comes up in court under one standard of review. It comes up through the administrative agency and judicial review under the APA standard review which is entirely different so you can -- the conception of it at least, the same court can decide the same question under different standards and come out different ways. The dilemma is simply unavoidable. It seems to me if the Court please that there is no way you can give credit to the elaborate scheme under Section 2 of each of the statutes if you allow an independent private right of action. Judicial review is another matter. So I submit that this clearly sets forth the answer to the third Cort v. Ash test. Now the Government makes one other point in its reply brief. It -- I think it was lecturing me but I'm not quite sure about my failure to perceive the difference between primary jurisdiction and exhaustion of remedies. And they are -- they go to great detail to explain that in circumstances like this where they are in court on our Title VI case. They may under the appropriate circumstance ask the Court to defer action while they complete the administrative process and they say that's the doctrine of primary jurisdiction. That's what they're talking about in the -- it seem particularly upset by my statement that I was confused about their course of conduct in various cases that we cited in our brief. The unfortunate part of the Government's position is that they in fact in the Terry versus Methodist Hospital of Gary case which we refer to in our brief, they themselves filed the motion to dismiss for failure to -- for lack of subject matter jurisdiction because of lack of exhaustion. The very point we're trying to make they themselves made but now they denied that. Well, they withdrew that motion subsequently but they withdrew it not because they felt the exhaustion doctrine was improper but because they wanted as they explained in the later document, they wanted to facilitate settlement. So they themselves had adopted the exhaustion argument if the Court please. So we're not doing anything noble here that seems to me it's inevitable that you do that if you're to make any sense out of the statute, otherwise you will have a shamus. Well under -- I think this is the essence of my case because what I'm really talking about is what Congress intended and not what Mr. Cannon wants or what I want. It's ultimately what the Congress said. A few minor things, I -- they weren't touched upon but I've -- they are in the briefs and that is the reason of managements to the age discrimination act which now provides for a specific right of action with exhaustion. And we made the point in our brief that this manifested an attempt that when Congress means they have a right of action under these kinds of statutes, it knows how to say so clearly.
William H. Rehnquist: But that's a different Congress than the one that enacted Title IX.
Stuart Bernstein: I understand sir. If you forget, I'm dong this in the defensive posture. They said that I can't read the amendment that way because the amendment implies a preexisting right. I simply wanted to call to your attention of the conference report which we haven't had a chance to do before because there was a difference between the House and the Senate on that issue where the conference report says as follows. The House Bill amended the Age Discrimination Act of 1975 by specifically providing for a private right of action for a violation of the Act. I'm responding to the point I make that that really wasn't what was done and I point to the conference report to say that that was done. I agree that actions of subsequent legislatures are not very significant in trying to shed light on what proceeded.
William H. Rehnquist: That really only proves that this particular Congress knew how to create a prior cause of action not necessarily that the proceeding it wanted.
Stuart Bernstein: Alright sir. I accept that. I -- I've -- If it please the Court, I think that is the essence of our position. In summary, it is again not -- oh, I'm sorry but I want to think I have to refer to. Solicitor General said in his reply brief that if -- going to court is really not a very serious problem. All you have to do is have the judge ask the question, for example Mrs. Cannon, was she kept out because of her age or for some other reason? And once you answer that question, that's easy. I have the impression that whoever wrote that brief for the Solicitor had never tried a case. If it was that easy, we would not be here. We would have done just that. It's a little more complicated than that. What our concern is you see, is the date -- they put -- the posing of the admissions committee. Mr. Cannon already filed a notice in the District Court to take the deposition of Dean Ceithaml who is the chairman of the admissions committee at the University of Chicago Medical School. Well, what will lead the (Inaudible) about? Well, why wasn't -- why wasn't Mrs. Cannon acceptable? How about these other 2000 that you say would better be heard and were turned down? How about the 104 you accepted. We have 5500 people that we can have a discovery about. He has full discovery available. He's already served the notice to discover all that we have unheard including any references that we've got through her applications that is references from third parties. All of that's available and that is what's involved. It isn't simply a matter of the university coming in and saying, “Mr. Judge, we didn't admit this lady because of her grades”. Mr. Cannon wouldn't be satisfied with that and he'd be a bad lawyer if he was. He wants to know why and we're subject to that and I submit to you. You put an admissions committee to that once and you're not going to do this again. They're going to make their decisions on strict grades and nothing else because then you can't get at them. And that's what they're worried about and that's what we're worried about and that's why we say in our brief that at the bottom, this is an academic freedom issue because this Court has said, you've cited the Harvard admissions program where diversity is a desirable factor in student bodies. We set out our admissions program which is aimed to the same end --
William H. Rehnquist: Well --
Stuart Bernstein: -- but if you submit us to this kind of Court proceeding, its -- you were not going to have any.
William H. Rehnquist: Well, how do you get academic freedom? Are you suggesting that there is some sort of constitutional right that favors you because “academic freedom” is involved?
Stuart Bernstein: No sir, I really don't. I'm picking up the point that was made repeatedly in Bakke by -- with great concern.
William H. Rehnquist: By Justice Powell's opinion.
Stuart Bernstein: By Justice Powell and I believe by Justice Blackmun Justice Blackmun.
Harry A. Blackmun: Mr. Bernstein, I'm a little puzzled by the argument.
Stuart Bernstein: Yes sir.
Harry A. Blackmun: The burden remains on the plaintiff does it not and if the members of the admissions committee each testified that they relied on neutral factors such as grades and judgment the like, how does she sustain her burden, she doesn't sustain it just because she's female?
Stuart Bernstein: Yes, that's when the case is over Your Honor.
Harry A. Blackmun: Pardon me?
Stuart Bernstein: That's when the case -- that's how the case ends but it's getting from the beginning -- from the complaint of that stage --
Harry A. Blackmun: It's to see -- if you say she has a --
Stuart Bernstein: -- that's the discovery -- yes sir.
Harry A. Blackmun: If you say she has a cause of action, has the right to take a half a dozen deposition.
Stuart Bernstein: Oh sure. But that begs the question.
Harry A. Blackmun: But does that bankrupt the university?
Stuart Bernstein: What it does, it exposes the university to this kind of thing by any number of disappointed applicants --
Harry A. Blackmun: Well, but first (Voice Overlap) --
Stuart Bernstein: Bankruptcy Your Honor is not the point.
Harry A. Blackmun: But does each disappointed applicant necessarily file a lawsuit after a whole string of other disappointed applicants to file lawsuits and lost. I mean is it probable just looking at it in a kind of an -- at large. Is it probable that all of these universities really are discriminating on the account of sex?
Stuart Bernstein: Well Your Honor, maybe I should have stayed out of this thicket to -- when they had the opportunity but having gotten into it, let me see if I can get out of it. What we are concerned about sir is that if you shift the arena, no matter how it comes out as I stated in our brief. We're not concerned about the ultimate merits of the case. We have not conceded the -- but for the question at all. But if you start the discovery route, if you start that route, you're going to have a chilling effect on the independence of the admissions committee. I think that's inevitable and Your Honors had sufficient trial experience I know. It's to know the problem of clients and the deposition procedure. It does have a chilling effect and this is our concern.
William H. Rehnquist: What do you mean by --
Stuart Bernstein: It's a multi (Voice Overlap) --
William H. Rehnquist: -- chilling effect?
Stuart Bernstein: Well, I really --
William H. Rehnquist: Granted you can say what do we mean by a chilling effect?
Stuart Bernstein: I think I was doing pretty well. I -- by chilling effect I mean is this, is that the concern of academics that they will have to justify their decisions in a court of law.
William H. Rehnquist: Well, but the -- if the petitioner is right, the Congress intended to chill admissions committee decisions based on sex.
Stuart Bernstein: Yes sir, I am sorry. I'm not -- I'm proceeding on the assumption now that in terms of the policies involved here that to the extent that that enters into that. There is a strong policy which would militate against the private right of action and that if this issue is going to be exported or to be explored fully --
William H. Rehnquist: Where does that policy come from?
Stuart Bernstein: The policy that I have enunciated about --
William H. Rehnquist: Yes.
Stuart Bernstein: Well, the policy comes from the fact that I think that if you implicate the judiciary in admissions decisions then you have a threatened academic freedom.
William H. Rehnquist: But you said a moment ago in response to my question that you didn't assert any constitutional claim based on academic freedom.
Stuart Bernstein: I'm speaking of academic freedom sir in the same sense that it was used by Justice Powell in Bakke. It -- I think it was a quasi constitutional right. I forget the (Voice Overlap) --
William H. Rehnquist: But what is a quasi constitutional right?
Stuart Bernstein: I'm waiting for the red light.
Warren E. Burger: I think perhaps we're asking you to define our terms with us.
Stuart Bernstein: Yes, well I enjoy this so I'd like to take a stand on --
William J. Brennan, Jr.: As I understand your argument Mr. Bernstein, you're saying that these people on the admissions committee are going to be chilled or more afraid of the suit by someone like the plaintiff in this case and they are afraid of having their funds cut off by the Federal Government --
Stuart Bernstein: No sir, (Inaudible) --
William J. Brennan, Jr.: -- if they engage in dubious discriminatory policy.
Stuart Bernstein: Yes sir, I have --
William J. Brennan, Jr.: Which is the more serious remedy?
Stuart Bernstein: I have the -- the fact of the matter is there has been no discrimination.
William J. Brennan, Jr.: Well, then --
Stuart Bernstein: The question is where do you establish that fact? That's (Inaudible) that's the issue.
William J. Brennan, Jr.: Well, they don't have to establish it, the plaintiff has to prove the contrary. And I just --
Stuart Bernstein: When we're --
William J. Brennan, Jr.: -- doesn't seem to me --
Stuart Bernstein: When we're (Voice Overlap) --
William J. Brennan, Jr.: -- that you're going to be scared to death of --
Stuart Bernstein: Sir?
William J. Brennan, Jr.: -- Mrs. Cannon but not worry at all about HEW cut off all your funds.
Stuart Bernstein: We're -- well, I can only repeat what I've said Your Honor that this case, we think -- we'll open the floodgates to a multiplicity of suits or the description of some 3500 things pending before HEW all of which could be shifted to the courts --
Speaker: How?
Stuart Bernstein: Certainly it's afraid of (Inaudible) I agree that not all of these --
John Paul Stevens: But your rule if it applies doesn't apply just the schools, it applies to hospitals and all sorts of other things, do they?
Stuart Bernstein: That's correct, that's correct of course.
John Paul Stevens: So this isn't the same -- its just an academic freedom issues, the question of what -- how to construe this statute?
Stuart Bernstein: Well, we're picking up academic freedom again Your Honor because academic freedom seemed to be a concern of this Court or at least the two of its members in the Bakke case. We are an academic institution, Northwestern University is an academic institution and we are concerned about the same matters of this Act about academic freedom.
Harry A. Blackmun: Let me say I am concerned about academic freedom now I'll speak to my Brothers in private a bit.
Warren E. Burger: Well, Mr. Bernstein --
Stuart Bernstein: Thank you.
Warren E. Burger: -- I took your reference. We've been making you skitter all over the lot here but going back to that colloquy that Mr. Justice Rehnquist. I took your suggestion about policy to mean that the legislative history you we're discussing earlier and which is reproduced in the briefs here indicates that as a matter of policy, Congress did not grant a private cause of action. This is the policy we're talking about.
Stuart Bernstein: That's right, that's correct.
Warren E. Burger: Yes.
Stuart Bernstein: Yes Your Honor. That's our -- the second Cort v. Ash test as to what the Congress would have. Yes sir. Thank you.
Warren E. Burger: Thank you gentlemen. The case is submitted.