00-2435 Cherry v. University of Wisconsin System Board of Regents

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“Congress has unambiguously conditioned the States’ receipt of Title IX funds on their waiver of Eleventh Amendment immunity from private causes of action. Although Title IX does not expressly provide for a private right of action, the Supreme Court has recognized since 1979 an implied private right of action under the statute. Cannon, 441 U.S. at 717; Davis, 526 U.S. at 639. Subsequently in 1986, Congress enacted 42 U.S.C. sec. 2000d-7(a), the Civil Rights Remedies Equalization Act (‘CRREA’), which provides in relevant part:

‘(1) A State shall not be immune under the Eleventh Amendment of the Constitution of the United States from suit in Federal court for a violation of … title IX of the Education Amendments of 1972 [20 U.S.C. sec. 1681 et seq.], … or the provisions of any other Federal statute prohibiting discrimination by recipients of Federal financial assistance.’

42 U.S.C. sec. 2000d-7(a)(1). Congress enacted the CRREA ‘with full cognizance’ of the holding in Cannon that Title IX can be enforced by a private right of action. Franklin v. Gwinnett County Public Schools, 503 U.S. 60, 72 (1992); see also id. (42 U.S.C. sec. 2000d-7 ‘cannot be read except as a validation of Cannon’s holding.’); see also Cannon, 441 U.S. at 696-97 (‘It is always appropriate to assume that our elected representatives, like other citizens, know the law.’). Moreover, the Supreme Court has recognized that Congress carefully crafted the CRREA as ‘an unambiguous waiver of the States’ Eleventh Amendment immunity.’ Lane v. Pena, 518 U.S. 187, 200 (1996); see also id. at 198 (in enacting the CRREA, ‘Congress sought to provide the sort of unequivocal waiver that our precedents demand.’). And subsequent to the CRREA, the Court established that monetary damages are available to Title IX plaintiffs. Franklin, 503 U.S. at 76; Davis, 526 U.S. at 639.”

Affirmed.

Appeal from the United States District Court for the Western District of Wisconsin, Shabaz, J., Manion, J.