Franklin v. Gwinnett County Public Schools (503 U.S. 60)/Concurrence Scalia

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Concurring Opinion

Justice Scalia, with whom The Chief Justice and Justice Thomas join, concurring in the judgment.

The substantive right at issue here is one that Congress did not expressly create, but that this Court found to be "implied." See Cannon v. University of Chicago, 441 U.S. 677 (1979). Quite obviously, the search for what was Congress' remedial intent as to a right whose very existence Congress did not expressly acknowledge is unlikely to succeed, see ante, at 71; it is "hardly surprising," as the Court says, ibid., that the usual sources yield no explicit answer.

[p. 77] The Court finds an implicit answer, however, in the legislators' presumptive awareness of our practice of using "any available remedy" to redress violations of legal rights. Bell v. Hood, 327 U.S. 678, 684 (1946); see ante, at 72–73. This strikes me as question begging. We can plausibly assume acquiescence in our Bell v. Hood presumption when the Legislature says nothing about remedy in expressly creating a private right of action; perhaps even when it says nothing about remedy in creating a private right of action by clear textual implication; but not, I think, when it says nothing about remedy in a statute in which the courts divine a private right of action on the basis of "contextual" evidence such as that in Cannon, which charged Congress with knowledge of a court of appeals' creation of a cause of action under a similarly worded statute. See Cannon, supra, at 696–698. Whatever one thinks of the validity of the last approach, it surely rests on attributed rather than actual congressional knowledge. It does not demonstrate an explicit legislative decision to create a cause of action, and so could not be expected to be accompanied by a legislative decision to alter the application of Bell v. Hood. Given the nature of Cannon and some of our earlier "implied right of action" cases, what the Court's analytical construct comes down to is this: Unless Congress expressly legislates a more limited remedial policy with respect to rights of action it does not know it is creating, it intends the full gamut of remedies to be applied.

In my view, when rights of action are judicially "implied," categorical limitations upon their remedial scope may be judicially implied as well. Cf. Cort v. Ash, 422 U.S. 66, 84–85 (1975). Although we have abandoned the expansive rights-creating approach exemplified by Cannon, see Touche Ross & Co. v. Redington, 442 U.S. 560, 575–576 (1979); Transamerica Mortgage Advisors, Inc. v. Lewis, 444 U.S. 11, 18, 23–24 (1979)—and perhaps ought to abandon the notion of implied causes of action entirely, see Thompson v. Thompson, 484 U.S. 174, 191 (1988) (Scalia, J., concurring [p. 78] in judgment)—causes of action that came into existence under the ancien regime should be limited by the same logic that gave them birth. To require, with respect to a right that is not consciously and intentionally created, that any limitation of remedies must be express, is to provide, in effect, that the most questionable of private rights will also be the most expansively remediable. As the United States puts it, "[w]hatever the merits of 'implying' rights of action may be, there is no justification for treating [congressional] silence as the equivalent of the broadest imaginable grant of remedial authority." Brief for United States as Amicus Curiae 12–13.

I nonetheless agree with the Court's disposition of this case. Because of legislation enacted subsequent to Cannon, it is too late in the day to address whether a judicially implied exclusion of damages under Title IX would be appropriate. The Rehabilitation Act Amendments of 1986, 42 U.S.C. §2000d–7(a)(2), must be read, in my view, not only "as a validation of Cannon 's holding," ante, at 72, but also as an implicit acknowledgment that damages are available. See 42 U.S.C. §2000d–7(a)(1) (withdrawing the States' Eleventh Amendment immunity); § 2000d–7(a)(2) (providing that, in suits against States, remedies (including remedies both at law and in equity) are available for [violations of Title IX] to the same extent as such "remedies are available for such a violation in the suit against any public or private entity other than a State"). I therefore concur in the judgment.