On May 18, 2026, the United States Supreme Court granted certiorari in the case of Crowther v. Board of Regents of the University System of Georgia. The Court will determine whether Title IX of the Education Amendments of 1972 (“Title IX”) provides a private right of action for employees of federally funded institutions.
What You Need to Know:
- The Eleventh Circuit recently held that employees of institutions receiving federal funds are not authorized to file employment-related sex discrimination claims under Title IX.
- There is now a circuit split, with the Second, Third, Sixth, Ninth, and Tenth Circuits holding that employees may initiate employment-related Title IX discrimination claims.
- Crowther will be argued in the October 2026 term, with a final decision expected by summer 2027.
- Factual Background
The United States Court of Appeals for the Eleventh Circuit recently consolidated the cases of two former employees of institutions of higher education alleging sex discrimination. Thomas Crowther worked as an art professor at Augusta University, a public college in Georgia. Joseph v. Bd. of Regents of the Univ. Sys. of Ga., 121 F.4th 855, 860 (11th Cir. 2024). In spring 2020, several students complained that Crowther sexually harassed them. Id. Crowther’s department chair subsequently issued a negative evaluation of his teaching, and, after an internal investigation found that he violated the University’s sexual harassment policy, he was suspended. Id. Crowther’s internal appeal failed and the University declined to renew his contract. Crowther then sued the Board of Regents and several University officials, alleging sex discrimination and retaliation under Title IX.
MaChelle Joseph is the former coach of the women’s basketball team at the Georgia Institute of Technology (“Georgia Tech”). Id. at 861. Joseph alleged that the men’s basketball team consistently received better resources (marketing budgets, larger locker rooms, nicer facilities) than its female counterpart. Id. Joseph complained of the discrepancies to Georgia Tech’s Title IX coordinator for athletics, but Joseph contended that the discrepancies remained. During Joseph’s tenure, assistant coaches, administrators, and players complained that Joseph’s coaching style facilitated a hostile environment; numerous individuals asserted that she engaged in bullying behavior. Id. at 862-63. An internal investigation confirmed the toxic atmosphere, and Georgia Tech fired Joseph. Id.at 863. Joseph sued, claiming, among other things, sex discrimination and retaliation under Title IX. Id.
- The Eleventh Circuit’s Decision
The Eleventh Circuit analyzed whether Title IX afforded Crowther and Joseph a private right of action against their former employers. Writing for the Court, Chief Judge William Pryor explained that Title IX did not permit either individual to bring a discrimination claim. Id. at 865-69.
Chief Judge Pryor explained that Congress enacted Title IX under the Spending Clause of Article I of the Constitution. Id. at 865. Typically, the remedy for Spending Clause legislation is the suspension of federal funding, not a private right of action. Id. The panel noted that Supreme Court precedent supported a finding that students could bring Title IX suits, because they represent the “intended beneficiary class” of the statute. Id. at 866. Observing the procedural and substantive discrepancies between Title IX and Title VII of the Civil Rights Act of 1964 (“Title VII”), Chief Judge Pryor wrote that Title IX “provides an implied right of action for students—who would otherwise have no statutory remedy to enforce their substantive right under Title IX,” but “the terms of the statute do not embrace a private right of action for employees.” Id. at 868.
- The Circuit Split
Several circuit courts have reached the opposite conclusion. In Vengalattore v. Cornell University, the United States Court of Appeals for the Second Circuit determined that employees have a private cause of action for sex discrimination in employment under Title IX. 36 F.4th 87, 106 (2d Cir. 2022). The Second Circuit reasoned that given Title IX’s procedural and substantive similarities to Title VII, and considering the statute’s broad aims, Congress implicitly intended to give employees of educational institutions who claim sex discrimination the ability to sue their employer under Title IX. Id. at 105-06.
In Snyder-Hill v. Ohio State University, the United States Court of Appeals for the Sixth Circuit determined that Title IX’s private right of action extended beyond students. 48 F.4th 686, 707 (6th Cir. 2022). In determining that contract referees who worked wrestling matches could initiate claims against Ohio State, the panel wrote that Title IX protects “persons” from sex discrimination, not merely “students” or “beneficiaries.” Id. Therefore, any individual who participated in a program or activity tied to federal funds could initiate a Title IX discrimination claim. Id. at 708.
Similarly, the United States Court of Appeals for the Third Circuit has held that Title IX contains a private right of action for employees, because Title IX broadly protects “persons” from discrimination based on sex. See Doe v. Mercy Cath. Med. Ctr., 850 F.3d 545, 562 (3d Cir. 2017) (“the provision implying Title IX’s private cause of action, 20 U.S.C. § 1681(a), encompasses employees, not just students”).
Finally, both the United States Court of Appeals for the Ninth and Tenth Circuits have interpreted Title IX as analogous to Title VII, holding that both statutes conferred private rights of action for employees alleging employment-related discrimination. See, e.g., Hiatt v. Colo. Seminary, 858 F.3d 1307, 1313-17 n.8 (10th Cir. 2017) (“The McDonnell Douglas framework applies both to the Title IX and Title VII sex discrimination claims”); Campbell v. Haw. Dep’t of Educ., 892 F.3d 1005, 1023 (9th Cir. 2018) (“Campbell’s Title IX claims for intentional sex discrimination mirror those she raised under Title VII. Indeed, federal courts generally evaluate employment discrimination claims brought under both statutes identically, and the parties concede that the same analysis should apply to both here.”).
On the other hand, in addition to the Eleventh Circuit, two other courts of appeals have held that employees do not have a private right of action for employment-related sex discrimination under Title IX. See, e.g., Lakoski v. James, 66 F.3d 751, 753 (5th Cir. 1995); Waid v. Merrill Area Pub. Schs., 91 F.3d 857, 861-62 (7th Cir. 1996). Both the Fifth and Seventh Circuit decisions, which predate several key Supreme Court opinions addressing the scope of Title IX, found that the rights and remedies afforded to employees under Title VII preclude Title IX’s remedial scheme for litigants seeking damages or injunctive relief.
The Supreme Court accordingly granted certiorari in Crowther to resolve the noted circuit split.
- Importance of Supreme Court Decision
While more recent circuit court decisions have found a private right of action for employment discrimination under Title IX, it is uncertain what the Supreme Court will ultimately decide. The question is salient for education programs and activities receiving federal funding, as Title VII and Title IX claims are not identical. For example, and importantly, Title VII caps compensatory damages, while Title IX does not. Harrington v. Lesley Univ., 554 F. Supp. 3d 211, 233 (D. Mass. 2021). Title VII also has an administrative exhaustion requirement and short limitation period, while Title IX affords litigants direct access to the courthouse, and, generally, a longer timeframe in which to initiate a lawsuit. Id. at 233-34.
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The Higher Education Industry Group at Saul Ewing will continue to monitor this case. Please do not hesitate to contact the authors or your regular Saul Ewing attorney with any questions about this alert.
