Title IX's Invisible Ink

How the Supreme Court made up "student-on-student" harassment law

Walter Olson from the August/September 1999 issue

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In practice, it would seem, the dimensions of today's Title IX right to sue are whatever O'Connor, the Court's moderate swing vote, says they are. Sometimes, as in Gebser v. Lago Vista (1998), which like Davis was decided by a 5-to-4 vote, she sides with the conservatives. In that case, schools avoided liability for teacher misconduct they didn't know about or couldn't have fixed. Other times, as in Davis, O'Connor joins the liberals but seems to negotiate them down to a compromise position professedly reserving the right to sue for severe or egregious cases, given "the inevitability of student misconduct and the amount of litigation that would be invited" by going further (to quote her opinion in Davis). There is a word for this process of drafting via negotiated tradeoff: legislation.

But legislation from the bench differs in its outcomes from legislation emanating from the branch that the Founders happened to entrust with that function, namely Congress. When Congress is forced explicitly to consider establishing rights to sue, regulated parties usually put up a fight and score some defensive victories. As a result of such resistance, the Civil Rights Act of 1964 and most similar laws limit the type and amount of damages that can be awarded under their terms. When courts invent implied rights, on the other hand, they typically decline to adopt limits to the damages that can be claimed thereunder--courts mustn't be arbitrary, after all. The outrageous result is that advocates of these laws can obtain a right to sue that is more expansive and lucrative if they sneak it in after the fact by judicial fiat than if they openly ask for it during congressional consideration.

As happens so often in the capital's perennial shell game, shifting the pea of responsibility from the more to the less politically accountable of the institutional walnuts enables both branches to evade constitutional limits on their power. Congress, eager for popularity, gets to endorse feel-good propositions (we're against discrimination) while handing off the unpleasant particulars (by the way, you might get sued under this law) to a branch more insulated from angry constituents.

In turn, as Justice Lewis Powell observed, the courts obtain a great deal of new power, and in particular are "free to reach a result different from that which the normal play of political forces would have produced." It's hard to escape the conclusion Powell himself drew: Liberal creation of implied rights of action "cannot be squared with the doctrine of the separation of powers."

Justice Antonin Scalia reached a similar conclusion in his concurrence in Thompson v. Thompson (1988). The costs of requiring Congress to be explicit about issues of such moment, he noted, are at most slight. The costs of the guessing game over claims of implied rights, experience has now shown, are severe and continuing. The safer course, as well as the more constitutional, would be for the Court to announce that rights to sue will not henceforth be derived from statutory silence, thus giving Congress an unmistakable signal that it must reshoulder its proper responsibility. "If a change is to be made," Scalia wrote, "we should get out of the business of implied private rights of action altogether."