May 28, 2026 | Volume 33, Issue 13
This Report summarizes opinions issued on May 14 and 21, 2026 (Part I); and cases granted review on May 18, 2026 (Part II).
Opinions
Hamm v. Smith, 24-1238.
By a 5-4 vote, the Court dismissed the writ of certiorari as improvidently granted. The Court had rewritten the question presented to be “[w]hether and how courts may consider the cumulative effect of multiple IQ scores in assessing an Atkins claim.” The Court’s dismissal left in place the district court’s finding that petitioner Joseph Smith was intellectually disabled even though he scored 75, 74, 72, 78, and 74 on five IQ tests.
Smith was sentenced to death for the 1997 murder of Durk Van Dam. On federal habeas review, the district court vacated Smith’s death sentence after concluding he is intellectually disabled. See Atkins v. Virginia, 536 U.S. 304 (2002). Smith’s claim of intellectual disability depended in part on whether his IQ is 70 or below. The district court found that Smith’s IQ could be as low as 69 given the standard error of measurement for his lowest score of 72. The court then vacated the death sentence, and the Eleventh Circuit affirmed. The Supreme Court granted certiorari in 2024 and remanded, finding that the “Eleventh Circuit’s opinion is unclear” on its interpretation of the multiple IQ scores. Hamm v. Smith, 604 U.S. 1 (2024). On remand, the Eleventh Circuit clarified that it had used a “holistic approach to multiple IQ scores that considers the relevant evidence, including as appropriate any relevant expert testimony.” But the Eleventh Circuit also noted that it was applying a “clearly erroneous” standard to the district court’s review of the expert testimony on the “standard error of measurement” and found “the full record at least plausibly supports the district court’s findings.”
Justice Sotomayor, joined by Justice Jackson, concurred in the dismissal of the writ of certiorari. She found the case a poor vehicle to address the question written by the Court. Justice Sotomayor noted that “the parties offer to this Court a variety of approaches to assessing multiple IQ scores that States could adopt,” but “the litigation below did not focus on whether a precise methodology exists that courts must use” and there was no evidentiary record to review. She added that Alabama didn’t initially argue for a particular method to assess multiple scores. At the district court, each expert assessed the scores holistically and no expert “calculated a composite score, used the mean or median, examined the ‘overlap’ of the scores’ error ranges” or asserted that “using such methods was the most scientifically sound.” Justice Sotomayor criticized the desire in Justice Alito’s dissent to provide guidance, finding “no reason for this Court to leapfrog the experts, state courts, and federal lower courts to provide conclusive guidance at this level of detail in the first instance.”
Justice Thomas dissented, arguing that the Court should overturn Atkins, which he asserts is not justified by anything “in the text and history of the Eighth Amendment.”
Justice Alito filed a dissent joined by Justice Thomas and joined in all but Part II by Chief Justice Roberts and Justice Gorsuch. Justice Alito lamented that the Court’s failure to address a 70-IQ cutoff when a defendant has multiple test scores “has led to confusion and unsound analysis in lower courts.” He summarized the Court’s caselaw with three rules concerning IQ and Atkins claims. First, Atkins does not bar the execution of a defendant who fails to prove an IQ of 70 or lower. Second, when determining whether a defendant has met this 70-IQ threshold, a court may not treat any one score as dispositive without considering a confidence interval based on the test’s standard error of measurement. And third, courts may not use extrinsic, defendant-specific details to infer where his IQ falls within a given interval.
Justice Alito noted that the Court “has never explained when courts may treat multiple scores as cumulatively dispositive.” But he contended that “psychometric literature provides various methods” to find a “true” IQ, the states can use “any reasonably sound method” to do so, and “the Constitution does not require courts to adopt any one approach.” Justice Alito then highlighted three approaches from the American Psychiatric Association Handbook: (1) the “composite-score method,” (2) the “median value of scores,” and (3) determining the scores’ “central tendency.” He also criticized Justice Sotomayor’s concurrence for improperly shifting the burden to Alabama. In Part II, Justice Alito concluded that the Eleventh Circuit’s use of the “lower end” value of the confidence interval for Smith’s “lowest IQ score” to find an IQ under 70 was “illegitimate,” “unsound,” and “untenable.”
Montgomery v. Caribe Transport II, LLC, 24-1238.
The Court unanimously held that “a claim that one company negligently hired another to transport goods” is not preempted by the Federal Aviation Administration Authorization Act (FAAAA). 49 U.S.C. §14501.Although the statute generally preempts state laws related to the prices, routes, and services of the trucking industry, it contains a safety exception providing that the FAAAA “shall not restrict the safety regulatory authority of a State with respect to motor vehicles.” §14501(c)(2)(A). The Court ruled that the negligent-hiring claim fell within the safety exception.
Petitioner Shawn Montgomery was injured after being hit by a freight truck. He sued the driver, the driver’s employer (Caribe Transport), and the freight broker that hired Caribe Transport. The district court granted the freight broker’s motion for summary judgment. The Seventh Circuit affirmed, concluding that the claim was “related to” broker services because it sought to hold the broker liable for its selection of a motor carrier and thus fell under the FAAAA’s preemption provision. The court found that the safety exception did not apply. In an opinion by Justice Barrett, the Court reversed and remanded.
The Court noted that “[n]egligent-hiring claims impose a duty of reasonable care in employing a contractor for work carrying a risk of physical harm.” And the parties did not dispute that “common-law duties and standards of care form part of a State’s authority to regulate safety.” The question the Court faced, then, was whether a negligent-hiring claim is one “with respect to motor vehicles.” The Court concluded it is. After considering dictionary definitions of “with respect to,” and a prior preemption case, Dan’s City Used Cars, Inc. v. Pelkey, 569 U.S. 251 (2013) (holding “with respect to” means “concerns”), the Court ruled that “a claim is ‘with respect to motor vehicles’ if it ‘concerns’ or ‘regards’ the vehicles used in transportation.” The Court found application of that standard here to be “straightforward”: requiring freight brokers to “exercise ordinary care in selecting a carrier [] concerns motor vehicles—most obviously, the trucks that will transport the goods.”
The Court rejected various counterarguments raised by the freight broker and the United States. First, the safety exception does not swallow the general preemption rule; various state laws “related to motor carrier prices, routes, and services—such as how much a carrier may charge or which highways it may traverse—[] have no relationship to safety.” Next, the Court rejected an argument based on the statute’s lack of a safety exception in §14501(b), which preempts “intrastate” broker services. Justice Barrett conceded it was “not obvious why Congress included a safety exception in (c) but not in (b),” but concluded “[b]etter to live with the mystery than to rewrite the statute.”
Justice Kavanaugh filed a concurring opinion, which Justice Alito joined, asserting that the case was “closer than the Court’s opinion perhaps might suggest.” Justice Kavanaugh focused on two features of the FAAAA that support the brokers. First, “the Act mandates a minimum level of insurance coverage for trucking companies—but not for brokers. . . . The dichotomy between trucking companies and brokers suggests (at least to some extent) that Congress did not anticipate state tort suits against brokers for negligent selection.” Second, Justice Kavanaugh pointed to the anomaly that the FAAAA prohibits “state tort suits against brokers for arranging intrastate transportation” but “allows state tort suits against brokers for arranging interstate transportation.” When viewed under federalism principles, that “seems exactly backwards.” Justice Kavanaugh found those concerns outweighed by considerations on the other side of the ledger. First, “[g]iven that Congress in the FAA Authorization Act sought economic deregulation—not safety deregulation—it is hard to read the statute as written and conclude that Congress subtly sliced and diced state tort law so that trucking companies would be subject to state tort suits for accidents, but brokers would operate free of any such tort liability.” Second, he pointed to the lack of “meaningful safety-related regulation of brokers at the federal level.”
Jules v. Andre Balazs Properties, 25-83.
The Courtunanimously held that “a federal court that has previously stayed claims in a pending action under §3 of the Federal Arbitration Act (FAA), 9 U.S.C. §1 et seq., has jurisdiction to confirm or vacate a resulting arbitral award as to those claims under §9 and §10” where it possessed jurisdiction over the original claims. The FAA “authorizes a party to an arbitration agreement to seek several kinds of assistance from a federal court.” At the front end, §3 of the FAA directs federal courts to stay any lawsuit that involves an issue that is “referable to arbitration,” while §4 allows courts to compel arbitration if a party to an arbitration agreement refuses to arbitrate. During arbitration, federal courts may facilitate the proceedings. On the back end, courts may confirm an arbitration award under §9 or (in limited circumstances) vacate or modify it under §10 or §11. But the FAA does not itself create federal jurisdiction over every arbitration dispute that implicates it. Instead, a federal court must have an “‘independent jurisdictional basis’” for granting FAA relief. In Vaden v. Discover Bank, 556 U.S. 49 (2009), the Court held that §4 permits courts to assess jurisdiction in a “freestanding” arbitration action by “‘looking through’” a motion to compel arbitration to the underlying dispute. Then, in Badgerow v. Walters, 596 U.S. 1 (2022), the Court “held that Vaden’s look-through approach does not apply to freestanding motions to confirm or vacate arbitral awards under §9 or §10.”
Following his employment termination from the Chateau Marmont Hotel in Los Angeles, California in March 2020, Jules sued respondents in federal district court in New York, alleging discrimination under both federal and state law. Respondents moved to stay federal proceedings under §3 based upon an agreement Jules signed requiring arbitration of “any disputes related to his employment or termination.” In 2021, the district court held that the agreement covered Jules’s claims and stayed proceedings pending arbitration. In 2023, the arbitrator issued a final ruling against Jules on all claims and awarded $34,500 in sanctions to respondents based on Jules’s and his attorney’s misconduct. Respondents moved to confirm the award in district court under §9. Relying on Badgerow, Jules argued that the district court lacked jurisdiction to confirm the award because the §9 and §10 motions did not themselves present federal questions or satisfy the requirements for diversity jurisdiction. The district court disagreed and confirmed the arbitral award. The Second Circuit affirmed, finding Badgerow distinguishable on the basis that this case was not a freestanding action for “the sole purpose of vacating an arbitral award,” but instead started as a federal question suit before it was stayed pending arbitration. In an opinion by Justice Sotomayor, the Court affirmed.
The Court held that Badgerow did not control the outcome here because there, “the first (and only) thing that had occurred in federal court was the confirm-or-vacate dispute under §9 and §10.” Accordingly, “there were only two places a court could look to find federal jurisdiction: the face of the FAA motions, on the one hand, or the underlying dispute that ‘was not before’ the court, on the other.” By contrast, this case presents “an obvious third place to look for jurisdiction: the original claims themselves,” which clearly included claims presenting a federal question. The Court also pointed to Badgerow’s holding that “[j]urisdiction to decide [a] case includes jurisdiction to decide [a] motion” within that case. The Court reasoned here that “[b]ecause a federal court in this scenario has jurisdiction over the original claims and does not lose that jurisdiction while the case is stayed pending arbitration, it retains jurisdiction to determine whether the arbitral award resolving those claims is valid and should be confirmed.” This outcome is consistent with the supervisory role the FAA envisions for the courts through the stay process and their subsequent duty to confirm, modify, or vacate the arbitral award in order to resolve a plaintiff’s original claims.
The Court rejected several law and policy arguments presented by Jules. First, Jules argued that under Badgerow, “the FAA is a ‘reticulated’ framework whose ‘text,’ alone, governs federal jurisdiction over FAA disputes and requires an independent jurisdictional basis for all §9 and §10 motions.” The Court rejected this overreading of Badgerow, which addressed only the “highly unusual” look-through rule that does not apply here due to independent federal jurisdiction. Second, Jules asserted that §9 and §10 applications should be treated as entirely “new federal actions” for purposes of assessing jurisdiction. This argument, held the Court, ignores that §9 and §10 motions do not require service of process or new proceedings in all cases, and would undermine the whole point of the stay process, which is to “avoid [the] costs and complications” of “bring[ing] a new suit.” Finally, Jules contended that public policy disfavors allowing confirmation of the arbitral award in federal court so long as an underlying federal claim was asserted because it would encourage “useless” federal litigation that disrupts the “sensible division of labor” between state and federal courts. The Court dismissed the speculative and de minimis risk posed by these concerns and emphasized the countervailing policy concerns: retaining federal courts’ supervisory role envisioned by the FAA and avoiding “unnecessarily complex dual-track litigation” where confirm-or-vacate proceedings “commence in state court just as arbitrability appeals begin in federal court.”
Havana Docks Corp. v. Royal Caribbean Cruises, Ltd., 24-983.
By an 8-1 vote, the Court held that the Cuban Liberty and Democratic Solidarity (LIBERTAD) Act “imposes liability on four cruise lines that, between 2016 and 2019, used docks that the Cuban Government took from an American company in 1960,” even though that company’s property interest in the docks would have expired in 2004 absent the confiscation. After Fidel Castro seized power during the communist revolution in 1959, the new Cuban government forcibly took American-owned properties and enterprises in Cuba without compensation. In 1996, Congress enacted the LIBERTAD Act, 22 U.S.C. §6021 et seq, which in relevant part provided American victims of confiscation “with a judicial remedy in the courts of the United States.” §6081(11). Title III of the Act provides that any entity that “traffics in property which was confiscated by the Cuban Government on or after January 1, 1959, shall be liable to any United States national who owns the claim to such property.” §§6023(11), 6082(a)(1)(A). An entity that traffics in confiscated property is liable for “money damages” presumptively equal to the amount certified by the Foreign Claims Settlement Commission. §§6082(a)(1)(A)(i)(I), (2).
In 1928, the U.S.-based Havana Docks Corporation acquired from the Cuban Government a property interest in the development and operation of docks at the state-owned Port of Havana. This interest, known as a “usufructuary concession,” entitled the company to use, enjoy, and profit from the docks until 2004, and required the government to compensate it for the value of all works it had constructed in the event of early termination. In reliance on this agreement, Havana Docks completed a large terminal building and three piers at the port. Following the communist takeover, Castro decreed that his new government would seize all American “properties and enterprises located” in Cuba, targeting Havana Docks by name. Under the decree, armed government soldiers occupied and seized the docks in 1960 and confiscated “all” of Havana Docks’ “assets.” The Foreign Claims Settlement Commission confirmed that Havana Docks had a valid interest in the construction and operation of the docks, and that the Cuban government had “expropriated” its assets when “the facilities of the company were physically occupied.” It therefore certified about $9 million in losses, plus six percent annual interest. From 2016 to 2019, respondents—Royal Caribbean Cruises, Norwegian Cruise Line Holdings, Carnival Corporation, and MSC Cruises—transported nearly a million paid passengers to Cuba. In May 2019, Havana Docks filed lawsuits against these four cruise lines in the Southern District of Florida. The district court concluded that they had trafficked in confiscated property and awarded Havana Docks more than $100 million from each of the cruise lines via summary judgment. A divided panel of the Eleventh Circuit reversed, holding that the cruise lines had not trafficked in confiscated property to which Havana Docks owned a claim. That is because, had no expropriation occurred, “any property interest that Havana Docks had by virtue of th[e] concession ended” in 2004. In an opinion by Justice Thomas, the Court reversed and remanded.
The Court addressed the central issue of “whether the relevant ‘property which was confiscated’ must be Havana Docks’ property interest in the docks, or whether it could instead be the docks themselves.” The Court concluded that “Havana Docks is not required to establish that the cruise lines used its property interest”; “the cruise lines’ use of the docks is sufficient” under Title III. The Act’s definition of “property” itself―“real, personal, or mixed, and any present, future, or contingent right, security, or other interest therein, including any leasehold interest”―“makes clear that the Act imposes liability for trafficking in both the physical property and the property interests.” Thus, the “property which was confiscated” can refer to the physical docks themselves, which armed agents of the Cuban government “seiz[ed] . . . control of” when they occupied the docks by force and expelled Havana Docks’ agents. Applying this definition gives Havana Docks a cognizable claim for relief under Title III, since it is undisputed that the cruise lines “use[d]” or “engage[d] in commercial activity using” the docks and did so “without the authorization of” Havana Docks. §§6023(13)(A)(i), (ii), 6082(a)(1)(A). And the Commission’s prior certification that Havana Docks possessed a property interest at the time the docks were seized constitutes “conclusive proof” that they are the “United States national who owns the claim” to the confiscated property. §§6082(a)(1)(A), 6083(a)(1).
In reaching its conclusion, the Court rejected respondents’ argument that “[t]he Act demands a one-to-one correspondence between the property interest confiscated and the property interest trafficked.” It explained that this interpretation “would read out of the Act obvious ways in which people can traffic in confiscated property,” such as using stolen physical property without acquiring the aggrieved party’s specific interest in that property. Indeed, it is uncontested that the cruise lines would be liable to Havana Docks if they had used the confiscated docks prior to 2004, even though doing so would not technically be a use of the company’s usufructuary concession. The Court further declined to adopt the Eleventh Circuit’s “counterfactual analysis,” which sought to determine the parties’ respective interests “as if there had been no expropriation” by the Cuban government. The Court found this approach “difficult to understand and apply,” and concluded it would impermissibly “foreclose liability in cases where the text demands it.” Finally, the Court rejected the dissent’s contention that “the Cuban government did not confiscate the docks” because it already owned them and merely provided Havana Docks with a temporary concession. The Court explained that the Act defines “confiscat[ion]” to include the seizure of “ownership or control of property.” §6023(4)(A). Under the concession, Havana Docks controlled and possessed the terminal and piers, meaning that “[w]hen armed agents physically occupied the docks facilities, they seized control of the docks even if Cuba owned” them.
Justice Sotomayor wrote a concurring opinion joined by Justice Kavanaugh. She fully agreed with the Court’s conclusion on the question presented, but wrote separately to express concern with two issues related to Havana Docks’ claim under Title III. First, if the Act were indeed interpreted to allow separate monetary recovery―up to the full value of loss certified by the Commission―against each trafficker or instance of trafficking, it would likely violate the Due Process Clause by imposing penalties against individual defendants that are “so severe and oppressive as to be wholly disproportioned to the offense and obviously unreasonable.” Second, she emphasized that on remand the Eleventh Circuit should address the “significant question as to whether respondents’ conduct fell within a statutory exception to Title III liability for ‘transactions and uses of property incident to lawful travel to Cuba.’ §6023(13)(B)(iii).” She noted that this exception appears viable based on arguments that the federal government had “previously taken the position that these cruises were lawful and beneficial to both Cuba and the United States.”
Justice Kagan authored a dissenting opinion. She maintained that “Havana Docks’ claim should fail, because the cruise lines did not traffic in Havana Docks’ time-limited—and long-ago expired—concession.” While she agreed with the majority’s conclusion that the Act’s definition of property could include physical property where appropriate, the docks here could not have been the confiscated property because the Cuban government never relinquished ownership of them. Thus, although the structures at the port were “physically occup[ied],” the communist government could not seize something that “already belonged to Cuba.” Instead, the expropriation at issue was the government’s uncompensated termination of the usufructuary concession, i.e., Havana Docks’ property interest in the use of and profit from the docks. That property interest had both “spatial” and “temporal” limitations, meaning that the cruise lines could not have trafficked in confiscated property if their use of the docks fell outside the scope of Havana Docks’ possessory interest.
M & K Employee Solutions, LLC v. Trustees of IAM Nat’l Pension Fund, 23-1209.
The Employee Retirement Income Security Act of 1974 (ERISA) requires an employer withdrawing from an underfunded Multiemployer Pension Plan (MPP) to pay the plan “withdrawal liability,” that is, its share of the plan’s unfunded vested benefits. 29 U.S.C. §1381(a). The Court unanimously held that, in determining withdrawal liability, a plan’s actuaries may select the “assumptions” needed to predict the value of the plan’s future assets and obligations “after the measurement date.” Withdrawal liability is calculated based on the plan’s unfunded vested benefits “as of” the last day of the plan year preceding the employer’s withdrawal—the measurement date. The value of the withdrawal liability depends upon “actuarial assumptions,” meaning data about the plan and various future predictions that can change over time. ERISA only requires the actuary use “actuarial assumptions and methods which, in the aggregate, are reasonable . . . and which, in combination, offer the actuary’s best estimate of anticipated experience under the plan.” §1383(a)(1).
Petitioners withdrew from the IAM National Pension Fund in 2018. The parties disputed what discount rate to apply to calculate the withdrawal liability. The Fund used a discount rate calculated in 2018, after the measurement date, which “dramatically increased petitioners’ withdrawal liability.” Petitioners initiated arbitrations to challenge their withdrawal-liability assessments. The arbitrators required the Fund to use actuarial assumptions that were “in effect” on the measurement date in 2017. The Fund sought review of the arbitral awards in federal district court. The district court disagreed with the arbitrators, holding that actuaries could use assumptions adopted after the measurement date to calculate withdrawal liability. The D.C. Circuit affirmed, agreeing that “actuaries could adopt assumptions after the measurement date” to meet the statutory directive to find the “best estimate” of the withdrawal liability. In an opinion by Justice Jackson, the Court affirmed.
The Court interpreted the statute’s requirement to make the calculation “as of” the measurement date to mean two things. First, that date is the fixed point for the “hard data” about the pension plan and, second, the actual calculation can be performed after the measurement date. The Court found the key question to be whether actuarial assumptions are “hard data” or part of the calculation. The Court found they are the latter, reasoning that actuarial assumptions “are not factual inputs” but “predictive judgment” tools used to calculate a plan’s value. Thus, they cannot be frozen on the measurement date. The Court found further support from Congress’s use of an actuarial-assumptions limitation period in a different part of ERISA, which suggests that the omission of such a limitation period from the withdrawal-liability calculation was intentional. Further, the statute’s directive to use the “best estimate” weighed heavily against preventing actuaries from using up-to-date data available only after the measurement date.
The Court rejected petitioners’ arguments to the contrary. First, petitioners argued that a different ERISA provision containing an anti-retroactivity rule supported their argument. The Court quickly dismissed this theory because Congress plainly chose not to include such limitation in §1393. The Court also rejected petitioners’ policy argument that post-measurement-date actuarial assumptions “will open the door to manipulation,” noting that petitioners’ rule would not mitigate the problem and that policy concerns can’t trump text. The Court concluded that “[i]t is not the role of the Court to supplant Congress’s choices, as reflected in the statutory text, with our own.”
Cases Granted Review
Crowther v. Board of Regents of the University System of Georgia, 25-183.
At issue is “[w]hether Title IX provides employees of federally funded educational institutions a private right of action to sue for sex discrimination in employment.” Petitioner MaChelle Joseph served as the women’s basketball coach at the Georgia Institute of Technology from 2003 until her termination in 2019. Petitioner Thomas Crowther served as an art professor on the faculty of Augusta University from 2006 until the university declined to renew his contract in 2021. Both brought federal suits in the Northern District of Georgia, claiming in relevant part that their respective terminations resulted from sex-based discrimination and retaliation in violation of Title IX, which prohibits federally funded institutions from discriminating “on the basis of sex” in education programs and activities. 20 U.S.C. §1681(a). In Joseph’s case, the district court dismissed her Title IX claims on the basis that (1) Title IX does not allow a private cause of action for employees alleging sex-based employment discrimination; and (2) Title VII’s remedial scheme provided the exclusive avenue for redress of employment discrimination. In Crowther’s case, the district court reached the opposite conclusion, holding that “Title VII does not preclude employment discrimination claims under Title IX” because “nothing in Title VII ‘in express terms, forbids or limits’ Title IX employment discrimination claims.” The Eleventh Circuit consolidated the cases for appeal. A panel of the appeals court affirmed the dismissal of Joseph’s Title IX claim and reversed the order denying the dismissal of Crowther’s claims. 121 F.4th 855.
The Eleventh Circuit concluded that “Title IX does not provide an implied right of action for sex discrimination in employment.” It explained that, “[f]or most Spending Clause legislation, ‘the typical remedy for . . . noncompliance with federally imposed conditions is not a private cause of action but rather action by the Federal Government to terminate funds.’” Thus, “because Title IX was enacted under the Spending Clause, it is dubious that recipients of federal funds would understand that they have knowingly and voluntarily accepted potential liability for damages for claims of employment discrimination under Title IX when those kinds of claims are expressly provided for and regulated by Title VII.”
Petitioners contend that the Eleventh Circuit’s decision places it on the wrong side of a lopsided split that has arisen in the wake of Jackson v. Birmingham Board of Education, 544 U.S. 167 (2005), which held that Title IX’s private remedy could be invoked by a public-school teacher at a federally funded institution who alleged retaliation for reporting and opposing sex discrimination in the school’s athletics program. On the merits, they point to two of the Court’s other precedents: Cannon v. University of Chicago, 441 U.S. 677 (1979) (holding that Title IX provides an “implied” private right of action for a prospective student to sue for sex discrimination in medical-school admissions), and Haven Board of Education v. Bell, 456 U.S. 512 (1982) (stating that Title IX’s prohibitions extend to sex-based “employment discrimination”). Petitioners read Cannon and Bell together as establishing that Title IX provides both a federal prohibition of sex-based employment discrimination and a private right of action by which an aggrieved individual may vindicate those protections. Petitioners further argue that Jackson controls the outcome here because it specifically allowed a private suit under Title IX by an employee of an educational institution. While they acknowledge that Jackson dealt with a claim of retaliation, petitioners point to the holding’s conclusion that cases “consistently interpreted Title IX’s private cause of action broadly to encompass diverse forms of intentional sex discrimination,” as well as its characterization of retaliation as a form “intentional discrimination on the basis of sex.” Finally, petitioners contend that the existence of a remedy for sex-based employment discrimination under Title VII does not foreclose the availability of a comparable private right of action under Title IX because the Court “repeatedly has recognized that Congress has provided a variety of remedies, at times overlapping, to eradicate employment discrimination.”
Respondents, joined on the merits by the United States as amicus curiae, maintain that the Eleventh Circuit correctly held that Title IX’s implied private right of action does not extend to suits alleging employment discrimination against faculty. First, they argue that the Court’s modern precedents have put it out of the business of “imply[ing] causes of action not explicit in the statutory text itself.” Ziglar v. Abbasi, 582 U.S. 120, 131–32 (2017). Under these precedents, courts will not infer new private rights of action stemming from spending-clause antidiscrimination legislation unless Congress has spoken “with a clear voice” to “unambiguously confer[]” a “right to support a cause of action.” Gonzaga Univ. v. Doe, 536 U.S. 273, 280, 283 (2002). Respondents and the United States then contend that the cases relied upon by petitioners are distinguishable. As for Jackson, respondents argue that, while the private suit was brought by an employee, the case was premised upon sex-based discrimination against students and retaliation against an employee who witnessed discrimination, rather than suffering it themselves. Finally, respondents and the United States argue that expanding Title IX’s judicially created cause of action would impermissibly displace the comprehensive scheme for employment discrimination that Congress expressly created under Title VII. They emphasize that when Congress enacts statutes with comprehensive remedial schemes, that ordinarily indicates its intent to preclude other, more general remedies—particularly where the specific scheme includes an exhaustion requirement. Indeed, they note, previous cases found that Title VII precludes relief under other general statutes, such as 42 U.S.C. §§1981 and 1985.
NAAG Center for Supreme Court Advocacy Staff
- Dan Schweitzer, Director and Chief Counsel
- Kevin Morrow, Supreme Court Fellow
- Michael Butera, Supreme Court Fellow
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