Tax, Spend, and Prevent Discrimination: Why Title IX’s Passage Under the Spending Clause Holds the Answer to a Quarter-Century Long Circuit Split

Title VII of the Civil Rights Act of 1964 and Title IX of the Education Amendments of 1972 both strive to reduce and eliminate discrimination on the basis of sex. While Title VII governs almost all employers in the United States, Title IX similarly governs almost all educational institutions. Of course, educational institutions employ scores of Americans and are thus bound to both Titles’ dictates. While the Supreme Court has explicitly held that Title IX protects both students and employees, the United States Circuit Courts have split over whether an aggrieved employee of a Title IX institution may remediate a sex discrimination claim under Title IX or whether she must do so under Title VII instead.

The choice of remedial scheme is particularly important in this context, because prior to filing suit under Title VII, litigants must jump through various administrative hoops, sometimes requiring lengthy waits. Title IX includes no such requirement. This difference, coupled with varying types of claims under each Title, as well as available damages, might prompt a litigant to choose Title IX over Title VII. Importantly, the two Titles create different types of legal duties on covered entities. While Title VII’s duty is more tort-like, Title IX’s much more closely resembles contract duty. In answering the circuit split’s questions, the courts have largely ignored the claims’ differences in kind.

This Note considers the effect of these different duties on the question implicated in the circuit split and is the first scholarship related to this circuit split to address these key distinctions. It examines where these duties come from and why they differ. Furthermore, it suggests that our legal system is already well-equipped to handle cases that concern multiple independent legal duties arising from a singular set of facts. Moreover, it establishes Congress’s deep concern with sex discrimination in schools, concern that finds support through social science research establishing discrimination’s harm on not just employees, but students as well. Based on this research, this Note argues that eligible employees complaining of sex discrimination should be allowed to choose their remedial avenue, Title VII or Title IX, or to bring both claims concurrently.