defendants maintain that neither Title IX or Title II provide for a private cause of action for damages.
In Lieberman v. University of Chicago, 660 F.2d 1185 (7th Cir. 1981), cert. denied, 456 U.S. 937, 72 L. Ed. 2d 456, 102 S. Ct. 1993 (1982), the court concluded that Title IX did not impliedly provide a damage remedy to individuals allegedly made the victim of sexual discrimination. Relying on the legislative history, the court stated, ". . . we consider it unwise to imply an additional remedy. If a damages remedy is to be created, it should be fashioned by Congress and not by the Courts, thus providing the institutions with ample notice and an opportunity to reconsider their acceptance of federal aid." Id. at 1188. In so doing, the court recognized the apparent conflict between theories of statutory construction
and the Supreme Court's holding in Cannon v. University of Chicago, 441 U.S. 677, 60 L. Ed. 2d 560, 99 S. Ct. 1946 (1979).
This reasoning was reiterated by the court in Cannon v. University of Health Sciences/The Chicago Medical School, 710 F.2d 351 (7th Cir. 1983). Accord Pruitt v. Illinois Township High School District 214, No. 83 C 4346, slip op. (N.D. Ill., January 20, 1984) (money damages unavailable under Title IX). See also Burroughs v. Hills, 564 F. Supp. 1007 (N.D. Ill. 1983), modified on other grounds, 741 F.2d 1525 (7th Cir. 1984), cert. denied, 471 U.S. 1099, 105 S. Ct. 2321, 85 L. Ed. 2d 840 (1985) (question of whether a private cause of action exists is distinct from what relief is available; greater hesitancy to imply cause of action for damages rather than equitable relief; citing Davis v. Passman, 442 U.S. 228, 60 L. Ed. 2d 846, 99 S. Ct. 2264 (1979)).
As authority to support their position that damages are available for violations of Title IX, plaintiffs cite Consolidated Rail Corp. v. Darrone, 465 U.S. 624, 104 S. Ct. 1248, 79 L. Ed. 2d 568 (1984). In Darrone, the court clarified the scope of a private right of action to enforce § 504 of the Rehabilitation Act of 1973. In so doing, the court recognized that § 504 was virtually identical to § 601 of Title VI. In fact, the remedies set forth in Title VI are specifically made available for violations of the Rehabilitation Act. Id. at 626.
While the Supreme Court did not determine the extent to which money damages are available under § 504, it did state, "we think it clear that § 504 authorizes a plaintiff who alleges intentional discrimination to bring an equitable action for back pay." Id. at 630. In making this finding, the court held that, "in Guardians Assn. v. Civil Service Comm'n of New York City, 463 U.S. 582, 77 L. Ed. 2d 866, 103 S. Ct. 3221 (1983), a majority of the Court expressed the view that a private plaintiff under Title VI could recover back pay; and no member of the Court contended that back pay was unavailable, at least as a remedy for intentional discrimination." Id. Accordingly, the Supreme Court recognizes that back pay is an appropriate remedy for intentional violations of Title VI.
Therefore, it would appear that money damages are available for intentional violations of Title IX since, as discussed, Congress intended to create remedies in Title IX comparable to those available under Title VI. See Cannon v. University of Chicago, supra, at n.13. See also N.A.A.C.P. v. Medical Center, Inc., 599 F.2d 1247 (3d Cir. 1979) (Title IX was expressly intended by Congress to track the previously enacted Title VI).
In the present case, plaintiffs apparently allege that defendants intentionally discriminated against plaintiffs. Such allegations are sufficient for purposes of the present motion
to support a damage claim. See Storey v. Board of Regents, 604 F. Supp. 1200 (W.D. Wis. 1985) (in Guardians, court made clear that equitable relief was available under Title VI and by implication Title IX; court further suggested that award of money damages may be appropriate in private suit involving intentional discrimination).
As to the availability of damages under Title II, neither party sets forth their position in any detail. Defendants aver only that "Title II of the Vocational Education Amendments of 1976, 20 U.S.C. §§ 2301 et seq., should not form the basis for a damage remedy against state officials." Document 35 of the Record at 8. In support, defendants aver that Title II contains no such remedy and that the alternate remedies contained in Title IX are available for violations of Title II. Id. No authority holding that damages are not available under Title II is cited. See Document 36 of the Record at 4.
The court finds, for reasons already discussed, that Title II of the Vocational Educational Amendments may warrant an award of damages especially if intentional discrimination is involved. While not addressing the issue of the availability of damages, the court in Canterino v. Wilson, 546 F. Supp. 174 (W.D. Ky. 1982), discussed applicable standards concerning the anti-discrimination provisions of Title IX and the federally funded Vocational Education Act. See Canterino v. Barber, 564 F. Supp. 711 (W.D. Ky. 1983). The apparent interrelationship between these provisions convinces the court that there is no reason why damages would not be available for discriminatory practices under Title II.
The Magistrate found that defendants did not demonstrate that a § 1983 action for damages for violations of Titles IX and II is unavailable. Document 68 of the Record at 29. Section 1983 provides a damages remedy for deprivations under color of state law of rights secured by federal statutes and regulations. Maine v. Thiboutot, 448 U.S. 1, 65 L. Ed. 2d 555, 100 S. Ct. 2502 (1980). It has already been established that a private right of action exists under Title IX and Title II. Thus, the statutes in question create rights within the meaning of § 1983. See Middlesex County Sewerage Authority v. National Sea Clammers Ass'n, supra. For these same reasons it can be argued that Congress has not foreclosed private enforcement of the statutes in the enactments themselves. Id. Defendants only argument is that the "devices provided by Congress, while excluding an action for damages, are 'sufficiently comprehensive.'" Document 72 of the Record at 7.
In Guardians Ass'n v. Civil Service Commission, supra, the court, distinguishing the views of Justice Stevens, stated:
damages indeed are usually available in a § 1983 action, but such is not the case when the plaintiff alleges only a deprivation of rights secured by a Spending Clause statute. Thus, in Pennhurst State School and Hospital v. Halderman, 451 U.S. 1, 27-29, [67 L. Ed. 2d 694, 101 S. Ct. 1531] (1981), the Court indicated that, even if the plaintiffs were entitled to relief under § 1983 for defendants' alleged violations of certain Spending Clause legislation, the defendants would not be required 'to provide money to [the] plaintiffs.'
Id. at 602 n.23. Thus, in light of this reasoning, it appears that § 1983 does not provide a separate vehicle by which plaintiffs can recover damages for violations of Title IX or Title II. In any event, the court's finding that damages are available for at least intentional violations of these statutory sections renders extended discussion of the § 1983 issue unnecessary.
Finally, defendants object to the Magistrate's recommendation that their Motion for Summary Judgment be denied as it relates to plaintiffs' claims based on state law. Initially, in the wake of apparent misunderstandings as to the claims contested in this portion of defendants' motion, the court emphasizes that defendants seek dismissal based on this court's lack of jurisdiction over plaintiffs' state-law claims only.
Plaintiffs maintain that the court has jurisdiction over their state law claims insofar as they seek damages from individual defendants.
The Magistrate agreed, finding that "a claim for damages for violation of state law against the individual defendants would be permissible." Id. at 24-25. See Ferrari v. Woodside Receiving Hospital, 624 F. Supp. 899 (N.D. Ohio 1985). The court might agree were this a routine case where a party seeks damages from an individual acting under color of state law. See Goka v. Bobbitt, 625 F. Supp. 319 (N.D. Ill. 1985); see also Duckworth v. Franzen, 780 F.2d 645 (7th Cir. 1985), appeal filed, 54 U.S.L.W. 3763 (May 20, 1986).
Applicability of the Eleventh Amendment "is to be determined not by the mere names of the titular parties but by the essential nature and effect of the proceedings, as it appears from the entire record." Wilson v. Beebe, 770 F.2d 578, 587 (6th Cir. 1985) (citations omitted). In theory, the Eleventh Amendment does not bar an action against a state official individually, but when an action names individual defendants in an effort to collect from a state for the authorized acts of its agents, the Eleventh Amendment applies. Id. In this case, it appears that a judgment against the individual defendants would have the effect of forcing the Commonwealth of Pennsylvania to expend public funds. Cf. Demery v. Kupperman, 735 F.2d 1139 (9th Cir. 1984), cert. denied, 469 U.S. 1127, 105 S. Ct. 810, 83 L. Ed. 2d 803 (1985) (Supreme Court's holding in Pennhurst State School & Hospital v. Halderman, 465 U.S. 89, 79 L. Ed. 2d 67, 104 S. Ct. 900 (1984), that a suit against state officials for retroactive monetary relief must be brought in state court should be limited to suits that are actually suits against the state itself).
As discussed, in Pennhurst, the Supreme Court stated, "under Edelman v. Jordan, supra, [415 U.S. 651, 94 S. Ct. 1347, 39 L. Ed. 2d 662 (1974)] a suit against state officials for retroactive monetary relief, whether based on federal or state law, must be brought in state court." Id. at 122. Some courts attempt to narrow this language, see Demery v. Kupperman, supra,19 by requiring that the suit be against the "state itself." See Spruytte v. Walters, 753 F.2d 498 (6th Cir. 1985), cert. denied, 474 U.S. 1054, 106 S. Ct. 788, 88 L. Ed. 2d 767 (1986) (complaint alleged violation of federal constitutional rights). In addition, however, the Pennhurst court stated:
A federal court's grant of relief against state officials on the basis of state law, whether prospective or retroactive, does not vindicate the supreme authority of federal law. On the contrary, it is difficult to think of a greater intrusion on state sovereignty than when a federal court instructs state officials on how to conform their conduct to state law. Such a result conflicts directly with the principles of federalism that underlie the Eleventh Amendment.