Cannon v. University of Chicago

PETITIONER: Cannon
RESPONDENT: University of Chicago
LOCATION: Southeastern Community College

DOCKET NO.: 77-926
DECIDED BY: Burger Court (1975-1981)
LOWER COURT: United States Court of Appeals for the Seventh Circuit

CITATION: 441 US 677 (1979)
ARGUED: Jan 09, 1979
DECIDED: May 14, 1979

ADVOCATES:
John M. Cannon - for petitioner
Stuart Bernstein - for non-federal respondents

Facts of the case

Question

Media for Cannon v. University of Chicago

Audio Transcription for Oral Argument - January 09, 1979 in Cannon v. University of Chicago

Warren E. Burger:

We'll hear arguments next in 77-926, Cannon against the University of Chicago.

Mr. Cannon.

John M. Cannon:

Mr. Chief Justice, may it please the Court.

This case presents as a matter of first impression the issue of whether Title IX of the Education Amendments 1972 maybe enforced in a federal civil action the particular case involves in the application to medical school which allegedly was denied on the basis of sex.

Title IX provides impertinent part no person in the United States shall on the basis of sex be excluded from any education program receiving federal financial assistance.

At Bedrock, this case asked the question in words of this Court from Allen versus the State Board of Elections whether that sweeping promise of Congress is to be merely an empty promise.

The current operating plan of the Department of Health, Education and Welfare's office for civil rights contemplates a predicted backlog of 3570 civil rights complaints including 889 which includes allegations of sex discrimination.

Title IX applies to approximately 97,000 institutions, a number of participants according to HEW is approximately 55 million.

As of September 30, 1976, HEW had asked 20,318 school districts and colleges to file compliance statements.

By the following March, 1977, only 6742 had done so.

The enforcement task is enormous, much more enormous than that faced by the Attorney General with respect to election laws and considered by this Court in the Allen case.

In fact, HEW has declared itself it has no hope of making a complete enforcement job for this spread of concern.

Now HEW in its brief to me, made the most significant point of any other briefs including our own and that is that Congress clearly contemplated that voluntary compliance would be the primary means for enforcements not only of Title IX but of its predecessor legislation Title VI subsequent legislation dealing with handicap and age discrimination.

Warren E. Burger:

If HEW sees a violation here do you have any hypothesis to suggest why HEW has not proceeded to enforce the statute as you construe the statute?

John M. Cannon:

Yes, I -- two things, I -- obviously, there was some confusion between the District 5 office in Chicago and the National Office.

The National Office in the opinion which is attached to the petition for certiorari has long maintained the position and particularly with respect to Title IX since September of 1974 that there is a private right of action to enforce Title IX whereas the District office went into the Federal District Court and denied the existence of the private right of action and said they were proceeding.

And indeed there is in the appendix a copy of my correspondence with the United States attorney in Chicago that indicated the regional director plan to conduct this particular investigation during the first half of January 1976.

Warren E. Burger:

Would you agree that the Congress has given HEW a lethal weapon to deal with these problems?

John M. Cannon:

Quite frankly Your Honor, the Carnegie Foundation characterized it as the atomic bomb and I think it's perhaps too lethal in the sense that we referred in our reply brief to -- going through the fund-cutoff procedures with HEW as playing Russian roulette with an institution.

Too many of our wonderful institutions of higher learning and other federally assisted organizations are dependent for anything like their current mode of operation on federal funds.

Putting the federal funds at risk is one thing that can be avoided by judicial action and HEW pointed that out in the --

Warren E. Burger:

Well, Congress -- you're making a very good argument that the Congress should have affirmatively, clearly and unequivocally provided for a private action as an alternative but is that an argument that we should weigh?

John M. Cannon:

Well, in considering why they may not have done that, I would point out that legislating in that particular area gets very touchy particularly with the background being Title VI.

And consider the fact that this Court probably would not have tolerated and Congress was quite well aware that it would not tolerate a reverse of that provision.

And historically, there has not been an expressed authorization for federal jurisdiction to remedy what is at Bedrock constitutional violations by federal authorities and in this case as well as Title VI, it's the utilization of federal funds to support discriminatory activity which may well be and in many cases clearly was recognized as constitutional violations so that the absence of a provision is not really new.

In fact, the greatest powers of this Court tracing back in the private right of action to some recent cases with Bivens and Bell versus Hood but more deeply through Marbury and all the way back to the King's bench that where there is a legal right provided unless there is a legal remedy, that it's not much of a right and that of course is our basic question.

Is this an empty promise or will it be enforced and for the present, it simply must be enforced by the courts or it's not going to be enforced at all.

HEW, the one to do the enforcing has told us so and the facts are quite clear.

Moreover, even if HEW could conceivably somehow get around to this enormous number of cases, the regulations that they have promulgated and by the time Title IX came along and followed with the other legislation, these regulations were in existence and known to counties.

William J. Brennan, Jr.:

How many of them are there do you suppose?