Are Anti-Retaliation Regulations in Title VI or Title IX Enforceable in a Private Right of Action: Does Sandoval or Sullivan Control This Question?

Recently, the federal circuit courts of appeal have divided in addressing to what extent either Title VI of the Civil Rights Act of 1964 or Title IX of the Education Amendments of 1972 protects those who complain about racial or gender discrimination from retaliation by their employers or schools. Neither Title VI nor Title IX explicitly prohibits retaliation by recipients. However, various federal agencies have issued specific Title VI or IX regulations that explicitly prohibit retaliation by recipients. Title IX was modeled after Title VI . . ., which is parallel to Title IX except that it prohibits race discrimination, not sex discrimination, and applies in all programs receiving federal funds, not only in education programs. Because of the similarities between these two statutes, federal courts have often examined them together when interpreting the meaning of each. In 2003, in Peters v. Jenney, the Fourth Circuit held that Title VI\u27s prohibition against racial discrimination includes a right of action against retaliation. In light of the Supreme Court\u27s holding in Alexander v. Sandoval that Congress intended Title VI to prohibit only intentional discrimination, the Peters decision recognized a private cause of action only for those who allege that a recipient retaliated against them for complaining about intentional discrimination. Any person who is the victim of retaliation may file suit, not just minorities who are the victims of discrimination. By contrast, in Jackson v. Birmingham Board of Educ., the Eleventh Circuit in 2002 rejected any private right of action against retaliation because the text of Section 901 of Title IX does not explicitly provide for such a private cause of action for retaliation. Assuming arguendo that a private right of action existed to sue recipients for retaliation, the Eleventh Circuit observed that it would limit any such right to plaintiffs who are the victims of gender discrimination and would not allow those who merely allege that others have suffered gender discrimination, such as the male plaintiff in that case, to pursue a retaliation claim. The Jackson court followed dicta in Sandoval suggesting that only express statutory language may establish a private right of action. However, to the extent that the Sandoval decision suggested in dicta that rights of action must be express, its reasoning is contrary to the Court\u27s prior precedent and its own reasoning. The Sandoval decision itself acknowledged that regulations applying Section 601\u27s ban on intentional discrimination are covered by the cause of action to enforce that section. The Supreme Court granted certiorari in Jackson and the case was argued before the Court on November 30, 2004. This Article argues that both Title VI and Title IX implicitly authorize plaintiffs to file retaliation claims against recipients of federal funds. Since its 1969 decision in Sullivan v. Little Hunting Park, Inc., the Supreme Court has consistently recognized retaliation claims as vindicating the central anti-discrimination principles of comparable civil rights statutes, and, therefore, such suits are permissible even after Sandoval. Retaliation claims are rooted in both Title VI and Title IX\u27s central purpose of prohibiting intentional discrimination. Additionally, following the Chevron doctrine, the Fourth Circuit in Peters appropriately deferred to agency regulations interpreting Title VI and Title IX to prohibit retaliation. Although holding that Title VI regulations could not authorize a private right of action to enforce regulations prohibiting disparate impacts, the Sandoval Court recognized that these agency regulations were effective to the extent they vindicated Title VI\u27s core prohibition against intentional discrimination. Thus, courts may conclude that Title VI and IX implicitly allow plaintiffs to bring retaliation claims if their employer or school retaliates against them for complaining about intentional racial or gender discrimination because such suits are strongly consistent with the statutes\u27s primary purpose of prohibiting recipients from engaging in intentional discrimination