Thursday, April 05, 2007

Title IX Implied Right of Action Extends to Suits Against OCR

Hockey dads in Minnesota complained to the Department of Education's Office for Civil Rights that the Minnesota state interscholastic athletic association discriminated against female hockey players by holding the girls' state tournament in a facility inferior to the boys'. When OCR ignored their complaints, their daughters sued OCR. The hockey players complained that by not ordering the athletic association to equalize the tournament facilities, the agency allowed federal funds--those awarded to the athletic association's member schools--to be used to discriminate on the basis of sex, in violation of Title IX.

OCR moved to dismiss the hockey players' claim, arguing that the private right of action under Title IX, acknowledged by the Supreme Court in Cannon v. University of Chicago, only gives individuals a right to sue educational institutions, not a right to sue OCR.

In Cannon, the Court noted that a private lawsuit directly against the the discriminating funding recipients is a less disruptive means of obtaining relief than than a private suit against the agency to compel the agency to enforcement. OCR argued that this statement is evidence that the Court did not intend to extend the the private right of action to include suits against OCR.

But the federal district court judge in Minnesota disagreed and denied the motion to dismiss. He reasoned that the Cannon Court's apparent concern about suits to compel OCR to terminate the federal funding of a school (or association of schools) that violates Title IX does not apply to suits in which the agency itself is accused of violating Title IX.

While I am all in favor of construing rights of action broadly, I'm not sure I find this reasoning persuasive. How is it less disruptive to the agency to be sued directly for a Title IX violation than to be sued to compel enforcement of someone else's Title IX violation? This seems especially unlikely, given the presumption (rebuttable though it may be) that an agency's decision not to take enforcement action is not reviewable by the courts?

The decision is: Cobb v. U.S. Dep't of Educ. Office for Civil Rights, 2007 WL 951688 (D. Minn. Mar. 28, 2007).


Anonymous said...

The process of filing an agency action with the Office of Civil Rights to investigate allegations of discrimination in federally funded public school institutions, and potentially enforce compliance with such institutions, has taken a dramatic political right turn in the last six years. Data shows there has been a consistent and dramatic strategic change in push-back employed by the U.S. Department of Education, Office of Civil Rights to discourage, dismiss, delay, and deny bona-fide discrimination complaints and in doing so, systematically eliminating OCR’s burden to enforce federal Title IX law. My two complaints to OCR have been no exception. OCR case resolution data shows a dramatic and startling shift in either internal OCR policy or "Bushy" political influence that has gradually eroded the rights of U.S citizens to seek and receive fair and consistent treatment when bringing Title IX civil rights complaints to the attention of the Office of Civil Rights. Further, OCR has tactically shifted the burden to the complainants to procure evidence and investigation before OCR will investigate discrimination complaints, thus creating a 500% reduction since 1999 in complaint resolutions involving OCR corrective action.

EBuz said...

A 500% reduction -- wow.