Employment and higher education lawyers undoubtedly took note of the U.S. Supreme Court’s recent decision to review Crowther v. Board of Regents. At issue is whether employees of federally funded educational institutions have an implied private right of action to bring employment-related claims of sex discrimination under Title IX of the Education Amendments of 1972 (Title IX). The Court’s decision (likely coming about a year from now) could have knock-on effects beyond the traditional employment context and conceivably could have implications for how Title IX operates within the dynamic landscape of college athletics, specifically around athlete compensation under last year’s landmark settlement in House v. NCAA.
The Supreme Court took Crowther to resolve an 8-3 split in the federal circuit courts of appeal. The First, Second, Third, Fourth, Sixth, Eighth, Ninth, and Tenth Circuits have held that employees of Title IX-covered educational institutions may bring claims of employment-related sex discrimination under Title IX. The Fifth, Seventh, and Eleventh Circuits have held to the contrary, concluding that Title VII of the Civil Rights Act of 1964 (Title VII) provides the exclusive federal remedy for employment-related sex discrimination claims. In Crowther, the Eleventh Circuit based its ruling on two principal arguments: (i) that Title IX — created under the U.S. Constitution’s Spending Clause — does not reflect the legislative intent needed to create an implied...
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