MARCUS, Circuit Judge:
Roderick Jackson appeals the dismissal of his complaint alleging that the Birmingham Board of Education (the "Board") retaliated against him in violation of Title IX of the Education Amendments of 1972 ("Title IX"), 20 U.S.C. § 1681 et seq., and the regulations implementing it. While employed by the Board as the coach of a girl's basketball team, Jackson complained about practices that he believed discriminated against his team in violation of Title IX. The school, he maintains, retaliated against him by removing him from his coaching position. The question before us is whether Title IX implies a private right of action in favor of individuals who, although not themselves the victims of gender discrimination, suffer retaliation because they have complained about gender discrimination suffered by others. After review of the text and structure of the statute, we can discern no congressional intent in Title IX to create by implication such a private cause of action. Accordingly, we affirm the dismissal of Jackson's complaint.
We review de novo an order granting a motion to dismiss the complaint, see McDonald v. S. Farm Bureau Life Ins. Co., 291 F.3d 718, 722 (11th Cir.2002), taking the facts alleged in the complaint as true and construing them in the light most favorable to the plaintiff. See Covad Communications Co. v. BellSouth Corp., 299 F.3d 1272, 1276 n. 2 (11th Cir.2002); Stephens v. Dep't of Health & Human Servs., 901 F.2d 1571, 1573 (11th Cir.1990) ("On a motion to dismiss, the facts stated in appellant's complaint and all reasonable inferences therefrom are taken as true."). "A motion to dismiss is only granted when the movant demonstrates `beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief.'" Harper v. Blockbuster Entm't Corp., 139 F.3d 1385, 1387 (11th Cir.1998) (quoting Conley v. Gibson, 355 U.S. 41, 45-46, 78 S.Ct. 99, 102, 2 L.Ed.2d 80 (1957)).
According to his complaint, Jackson was hired by the Board as a physical education teacher and girls' basketball coach on or about August 1993. He was transferred to Ensley High School in August 1999, where his duties included coaching the girls' basketball team. While coaching at Ensley, Jackson came to believe that the girls' team was denied equal funding and equal access to sports facilities and equipment. He complained to his supervisors about the apparent differential treatment and, shortly thereafter, he began receiving negative work evaluations. Jackson was ultimately relieved of his coaching duties in May 2001, but remains employed as a tenured physical education teacher.
We assume for purposes of this appeal that the Board retaliated against Jackson for complaining about perceived Title IX violations. The only question before us
Section 901 of Title IX, with certain exceptions not at issue here, provides 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...." 20 U.S.C. § 1681(a).
In section 902, Congress created and authorized an elaborate administrative enforcement scheme for Title IX. See Davis v. Monroe County Bd. of Educ., 526 U.S. 629, 638-39, 119 S.Ct. 1661, 1669, 143 L.Ed.2d 839 (1999).
There are a number of procedural requirements that must be met, however, before an agency may cut off funding. First, an agency must attempt to obtain voluntary compliance with the requirements it has imposed to enforce § 901: "no ... action shall be taken until the department or agency concerned has advised the appropriate person or persons of the failure to comply with the requirement and has determined that compliance cannot be secured by voluntary means." Id. Second, if an agency fails to obtain voluntary compliance, it must hold a hearing regarding any alleged regulatory violation, because only a "recipient as to whom there has been an express finding on the record, after opportunity for hearing, of a failure to comply with" a regulation enacted pursuant to § 902 may have its funding cut off. Id. Third, even after making an "express finding" of noncompliance, an agency may not cut off funding unless it files "a full written report" to "the committees of the House and Senate having legislative jurisdiction over the program or activity involved" and waits "until thirty days have elapsed after the filing of such report." Id.
Using the authority vested in it by § 902, the Department of Education promulgated 34 C.F.R. § 100.7(e),
34 C.F.R. § 100.7(e) (emphasis added).
Jackson urges that a private right of action ought to be implied in his favor from the statute and, more particularly, from 34 C.F.R. § 100.7(e). We are unpersuaded. For the reasons we make clear below, we hold that neither Title IX itself nor 34 C.F.R. § 100.7(e) implies a private right of action for retaliation in Jackson's favor.
Our analysis of Jackson's claim is governed in substantial measure by the Supreme Court's recent decision in Alexander v. Sandoval, 532 U.S. 275, 121 S.Ct. 1511, 149 L.Ed.2d 517 (2001), which we explicate fully for three reasons. First, Sandoval distills and clarifies the approach we are obliged to follow in determining whether to imply a private right of action from a statute.
In Sandoval, the Supreme Court held that Title VI does not imply a right of action for private litigants to sue recipients of federal funds for "disparate impact" violations. See Sandoval, 532 U.S. at 293, 121 S.Ct. at 1523. At issue in Sandoval was the claim that the Alabama Department of Public Safety's policy of administering all tests for drivers' licenses in English only has a discriminatory effect on racial minorities. Section 601 of Title VI provides that "[n]o person in the United States shall, on the ground of race, color, or national origin, be excluded from participation in, be denied the benefits of, or be subjected to discrimination under any program or activity receiving Federal financial assistance." 42 U.S.C. § 2000d. Recognizing that Title VI itself reaches only acts of intentional discrimination, see Alexander v. Choate, 469 U.S. 287, 293, 105 S.Ct. 712, 716, 83 L.Ed.2d 661 (1985), the plaintiff in Sandoval alleged that Alabama's restriction violated 28 C.F.R. § 42.104(b)(2), a Department of Justice regulation promulgated pursuant to § 602 of Title VI,
The Court in Sandoval held that, although a private cause of action exists to
In reaching this decision, the Supreme Court stressed that legislative intent is the only basis upon which a private right of action may be inferred:
Id. at 286-87, 121 S.Ct. at 1519-1520 (citations and quotations omitted and emphasis added); see also Gonzaga University v. Doe, 536 U.S. 273, 122 S.Ct. 2268, 2276, 153 L.Ed.2d 309 (2002) (The inquiry "simply require[s] a determination as to whether or not Congress intended to confer individual rights upon a class of beneficiaries.").
Sandoval also clearly delimits the sources that are relevant to our search for legislative intent. First and foremost, we look to the statutory text for "`rights-creating' language." Sandoval, 532 U.S. at 288, 121 S.Ct. at 1521; see also Gonzaga University, 122 S.Ct. at 2275 n. 3 ("Where a statute does not include this sort of explicit `right- or duty-creating language' we rarely impute to Congress an intent to create a private right of action."); Cannon, 441 U.S. at 690 n. 13, 99 S.Ct. at 1954 n. 13 ("Not surprisingly, the right- or duty-creating language of the statute has generally been the most accurate indicator of the propriety of implication of a cause of action."). "Rights-creating language" is language "explicitly conferr[ing] a right directly on a class of persons that include[s] the plaintiff in [a] case," Cannon, 441 U.S. at 690 n. 13, 99 S.Ct. at 1954 n. 13, or language identifying "the class for whose especial benefit the statute was enacted." Tex. & Pac. Ry. Co. v. Rigsby, 241 U.S. 33, 39, 36 S.Ct. 482, 484, 60 L.Ed. 874 (1916), quoted in Cannon, 441 U.S. at 689 n. 10, 99 S.Ct. at 1953 n. 10. By contrast, "statutory language customarily found in criminal statutes ... and other laws enacted for the protection of the general public," or a statute written "simply as a ban on discriminatory conduct by recipients of federal funds," provides "far less reason to infer a private remedy in favor of individual persons." Cannon, 441 U.S. at 690-93, 99 S.Ct. at 1954-55.
Second, we examine the statutory structure within which the provision in question is embedded. If the statutory structure provides a discernible enforcement mechanism, Sandoval teaches that we ought not imply a private right of action because "[t]he express provision of one method of enforcing a substantive rule suggests that Congress intended to preclude others."
Third, if (and only if) statutory text and structure have not conclusively resolved whether a private right of action should be implied, we turn to the legislative history and context within which a statute was passed. See Sandoval, 532 U.S. at 288, 121 S.Ct. at 1520 ("In determining whether statutes create private rights of action, as in interpreting statutes generally, legal context matters only to the extent it clarifies text.") (citation omitted).
Relying exclusively on the text and structure of Title VI, see Sandoval, 532 U.S. at 288, 121 S.Ct. at 1520 ("We ... begin (and find that we can end) our search for Congress's intent with the text and structure of Title VI."), the Court in Sandoval concluded that Title VI implies no private right to sue for actions not motivated by discriminatory intent that result in a disparate impact. See id. at 293, 121 S.Ct. at 1523. Examining § 601, the Court determined that it does not imply a private right of action for disparate impact claims, because, as noted above, "§ 601 prohibits only intentional discrimination." Id. at 280, 121 S.Ct. at 1516.
The Court turned next to § 602, which, like § 902 of Title IX, authorizes federal agencies "to effectuate the provisions of [§ 601] ... by issuing rules, regulations, or orders of general applicability." 42 U.S.C. § 2000d-1. The Court concluded that this provision does not imply a private right of action. It first observed that "`rights-creating' language ... is completely absent from § 602." Sandoval, 532 U.S. at 288, 121 S.Ct. at 1521. Indeed, "[f]ar from displaying congressional intent to create new rights, § 602 limits agencies to `effectuat[ing]' rights already created by
Id. (quoting California v. Sierra Club, 451 U.S. 287, 294, 101 S.Ct. 1775, 1779, 68 L.Ed.2d 101 (1981)); see also Touche Ross & Co. v. Redington, 442 U.S. 560, 576, 99 S.Ct. 2479, 2489, 61 L.Ed.2d 82 (1979) ("The question whether Congress ... intended to create a private right of action [is] definitely answered in the negative" where a "statute by its terms grants no private rights to any identifiable class[.]"). The Court thus concluded that, "[s]o far as we can tell, this authorizing portion of § 602 reveals no congressional intent to create a private right of action." Sandoval, 532 U.S. at 289, 121 S.Ct. at 1521.
The Court also found that "the methods § 602 ... provide[s] for enforcing its authorized regulations ... suggest" an intent not to create a private right of action. Id. Section 602 provides for extensive administrative enforcement, as well as "elaborate restrictions" of that enforcement, which "tend[s] to contradict a congressional intent to create privately enforceable rights through § 602 itself." Id. at 290, 121 S.Ct. at 1521. In fact, the Court continued, "[t]he express provision of one method of enforcing a substantive rule suggests that Congress intended to preclude others." Id. at 290, 121 S.Ct. at 1522.
Having determined that § 601 does not imply a private right of action for disparate impact claims and that § 602 does not imply any private right of action at all, the Court concluded that the regulations promulgated by agencies with the power granted to them by § 602 to enforce the provisions of § 601 also cannot be the basis of an implied private right of action for disparate impact claims:
Id. at 291, 121 S.Ct. at 1522 (citations and quotations omitted); see also Touche Ross,
With this template in front of us, we turn to Jackson's contention that Title IX, in conjunction with 34 C.F.R. § 100.7(e), implies a private right of action to remedy the type of retaliation he claims to have suffered.
As noted above, Title IX does not expressly provide any private right of action. See supra at 1335. In Cannon v. Univ. of Chicago, 441 U.S. 677, 688-89, 99 S.Ct. 1946, 1953, 60 L.Ed.2d 560 (1979), however, the Supreme Court held that Title IX implies a private right of action in favor of direct victims of gender discrimination. A woman who was denied admission by two medical schools brought suit against the schools under Title IX, alleging that their admissions policies discriminated against women. Carefully applying the four-part test set out in Cort v. Ash, 422 U.S. 66, 78, 95 S.Ct. 2080, 2088, 45 L.Ed.2d 26 (1975), see supra note 5,
The Supreme Court has plainly receded from the four-part Cort analysis that animated Cannon, focusing instead only on congressional intent to create a private right of action. See supra note 5. But the Court has not overturned the specific holding of Cannon, and so a direct victim of gender discrimination still may pursue a private right of action under Title IX to remedy the discrimination she has suffered.
In Cannon, however, the Supreme Court had no occasion to address the questions before us today: whether Title IX implies a private right of action to redress retaliation resulting from Title IX complaints or whether individuals other than direct victims of gender discrimination have any private rights under Title IX at all. Nor has any subsequent decision of the Supreme Court or this Court resolved these questions. We therefore face the basic question of whether to imply a private right of action and a private remedy for retaliation in favor of an individual who is not himself a direct victim of gender discrimination. After reading Title IX in the manner required by Sandoval, we can find nothing in the language or structure of Title IX creating a private cause of action for retaliation, let alone a private cause of action for retaliation against individuals other than direct victims of gender discrimination.
We begin with the text of § 901. See supra at 1340. Section 901 aims to prevent and redress gender discrimination and does so by requiring 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." 20 U.S.C. § 1681(a); see also Cannon, 441 U.S. at 704, 99 S.Ct. at 1961. Nothing in the text indicates any congressional concern with retaliation that might be visited on those who complain of Title IX violations. Indeed, the statute makes no mention of retaliation at all.
Section 902 of Title IX, see supra note 2, does not vary our conclusion that Congress did not intend Title IX to prohibit retaliation. Section 902, like its twin § 602, is devoid of "rights-creating" language of any kind — whether against gender discrimination, retaliation, or any other kind of harm. Instead, again like § 602, it explicitly directs and authorizes federal agencies to regulate recipients of federal funding to effectuate the anti-discrimination provisions of § 901. As detailed above, see supra at 1336-37, it provides an enforcement mechanism — the cessation of federal funding — and imposes "elaborate restrictions on agency enforcement." Sandoval, 532 U.S. at 290, 121 S.Ct. at 1521. These restrictions include requirements that agencies first attempt to attain voluntary compliance, that agencies hold a hearing and make express findings of noncompliance before cutting off funding, and that agencies provide Congress thirty days to consider any proposed funding cut off. See 20 U.S.C. § 1682. That § 902 is thus concerned exclusively with the power of federal agencies to regulate recipients of federal funds renders its focus, like § 602's, "twice removed" from any consideration of what harm Title IX is meant to remedy. Sandoval, 532 U.S. at 289, 121 S.Ct. at 1521. Section 902 plainly does not disclose any congressional intent to imply a private right of action of any kind, let alone against retaliation.
Moreover, as Sandoval teaches, Section 902's provision of an administrative enforcement mechanism, coupled with § 903's provision of judicial review, strongly counsels against inferring a private right of action against retaliation, because "[t]he express provision of one method of enforcing a substantive rule suggests that Congress intended to preclude others." Sandoval, 532 U.S. at 290, 121 S.Ct. at 1521-22.
We conclude, much like the Supreme Court did in Sandoval, that nothing in the text or structure of §§ 901 and 902 yields the conclusion that Congress intended to imply a private cause of action for retaliation. While we "have a measure of latitude to shape a sensible remedial scheme that best comports with the statute" when determining the scope of a judicially implied right and the remedies it makes available, Gebser v. Lago Vista Indep. Sch. Dist., 524 U.S. 274, 284, 118 S.Ct. 1989, 1996, 141 L.Ed.2d 277 (1998), we are not free to craft a right that there is no evidence Congress intended to create. See id. ("[W]e generally examine the relevant statute to ensure that we do not fashion the scope of an implied right in a manner at odds with the statutory structure and purpose."); see also Sandoval, 532 U.S. at 286, 121 S.Ct. at 1519 ("Statutory intent ... is determinative."); Gebser, 524 U.S. at 285, 118 S.Ct. at 1997 (We must "`attempt to infer'" from all available indicia
Nor does 34 C.F.R. § 100.7(e)'s prohibition on retaliation, see supra at 1337, imply such a private right of action or create a private remedy. It is true, as Jackson asserts, that § 100.7(e) identifies a class to which it extends its protection: "any individual" retaliated against for "complain[ing], testif[ying], assist[ing], or participat[ing] in any manner in an investigation, proceeding or hearing" undertaken to enforce Title IX. This regulatory identification of a protected class cannot be taken, however, as "rights-creating," for the simple reason that "[l]anguage in a regulation ... may not create a right that Congress has not." Sandoval, 532 U.S. at 291, 121 S.Ct. at 1522. Quite simply, if Congress did not enact a statute creating a private cause of action, we cannot find its intent to do so in this regulation. Because Congress has not created a right through Title IX to redress harms resulting from retaliation, 34 C.F.R. § 100.7(e) may not be read to create one either.
Moreover, even if Title IX did aim to prevent and remedy retaliation for complaining about gender discrimination, Jackson is plainly is not within the class meant to be protected by Title IX. As Cannon held, § 901 identifies victims of gender discrimination as the class it aims to benefit, and so implies a private right of action in their favor. Nowhere in the text, however, is any mention made of individuals other than victims of gender discrimination. Gender discrimination affects not only its direct victims, but also those who care for, instruct, or are affiliated with them — parents, teachers, coaches, friends, significant others, and coworkers. Congress could easily have provided some protection or form of relief to these other interested individuals had it chosen to do so — especially for a harm as plainly predictable
We thus hold that Title IX does not imply a private right of action in favor of individuals who, although not themselves the victims of gender discrimination, suffer retaliation because they have complained about gender discrimination suffered by others.
422 U.S. at 78, 95 S.Ct. at 2088 (quoting Texas & Pac. Ry. Co. v. Rigsby, 241 U.S. 33, 39, 36 S.Ct. 482, 484, 60 L.Ed. 874 (1916)) (additional citations omitted). Since the late 1970's, the Court has gradually receded from reliance on three of these four factors, focusing more and more exclusively on legislative intent alone. See, e.g., Transamerica Mortgage Advisors, Inc. v. Lewis, 444 U.S. 11, 15-16, 100 S.Ct. 242, 245, 62 L.Ed.2d 146 (1979) ("While some opinions of the Court have placed considerable emphasis upon the desirability of implying private rights of action in order to provide remedies thought to effectuate the purposes of a given statute, what must ultimately be determined is whether Congress intended to create the private remedy asserted ....") (citations omitted); Touche Ross & Co. v. Redington, 442 U.S. 560, 575, 99 S.Ct. 2479, 2489, 61 L.Ed.2d 82 (1979) (the "central inquiry" is "whether Congress intended to create, either expressly or by implication, a private cause of action"); Thompson v. Thompson, 484 U.S. 174, 179, 108 S.Ct. 513, 516, 98 L.Ed.2d 512 (1988) ("The intent of Congress remains the ultimate issue...."). Sandoval is the culmination of this trend, announcing that "[s]tatutory intent ... is determinative." 532 U.S. at 286, 121 S.Ct. at 1519; see also Gonzaga Univ. v. Doe, 536 U.S. 273, 122 S.Ct. 2268, 2276-77, 153 L.Ed.2d 309 (2002) (applying Sandoval mode of analysis). The other three Cort factors remain relevant only insofar as they provide evidence of Congress's intent. See Thompson, 484 U.S. at 189, 108 S.Ct. at 521 (Scalia, J., concurring in the judgment) (The Court has "convert[ed] one of [the Cort test's] four factors (congressional intent) into the determinative factor, with the other three merely indicative of its presence or absence.") (emphasis in original).
The Department of Transportation has promulgated an identical regulation. See 49 C.F.R. § 21.5(b)(2).
Under the third Cort factor, the Court gleaned from Title IX's legislative history that it was enacted to promote "two related, but nevertheless somewhat different, objectives:" "to avoid the use of federal resources to support discriminatory practices" and "to provide individual citizens effective protection against those practices." Cannon, 441 U.S. at 704, 99 S.Ct. at 1961; see also id. at 704 n. 36, 99 S.Ct. at 1961 n. 36 (discussing legislative history of Title IX); Gebser v. Lago Vista Indep. Sch. Dist., 524 U.S. 274, 286, 118 S.Ct. 1989, 1997, 141 L.Ed.2d 277 (1998). The Court observed that the first of these objectives is "generally served by the statutory procedure for the termination of federal financial support for institutions engaged in discriminatory practices" set forth in § 902. Cannon, 441 U.S. at 704, 99 S.Ct. at 1961. Cutting off federal funding is, however, a "severe" remedy of "last resort" that "often may not provide an appropriate means of accomplishing the second purpose...." Id. at 704-705 & n. 38, 99 S.Ct. at 1961-62 & n. 38. The Court thus concluded that "[t]he award of individual relief to a private litigant who has prosecuted her own suit is not only sensible but is also fully consistent with — and in some cases even necessary to — the orderly enforcement of the statute." Id. at 705-06, 99 S.Ct. at 1962.
Finding the fourth Cort factor also favored implying a private right of action, the Court in Cannon concluded that "all of [the Cort factors] support the same result. Not only the words and history of Title IX, but also its subject matter and underlying purposes, counsel implication of a cause of action in favor of private victims of discrimination." Id. at 709, 99 S.Ct. at 1964 (emphasis added).
After Sandoval, we believe the reasoning in Lowrey is unpersuasive. Accordingly, we do not follow Lowrey, either in its exclusive reliance on 34 C.F.R. § 100.7(e) to imply a private right of action, see Sandoval, 532 U.S. at 291, 121 S.Ct. at 1522 ("[I]t is most certainly incorrect to say that language in a regulation can conjure up a private cause of action that has not been authorized by Congress."), or in its application of the Cort factors that gives short shrift to legislative intent. See Sandoval, 532 U.S. at 286-87, 121 S.Ct. at 1519-1520 ("Statutory intent ... is determinative.").