Franklin v. Gwinnett County Public Schools, 503 U.S. 60, 17 (1992)

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Scalia, J., concurring in judgment

the adequacy of a remedy in law before resorting to equitable relief. Under the ordinary convention, the proper inquiry would be whether monetary damages provided an adequate remedy, and if not, whether equitable relief would be appropriate. Whitehead v. Shattuck, 138 U. S. 146, 150 (1891). See generally C. McCormick, Damages 1 (1935). Moreover, in this case the equitable remedies suggested by respondent and the Federal Government are clearly inadequate. Backpay does nothing for petitioner, because she was a student when the alleged discrimination occurred. Similarly, because Hill—the person she claims subjected her to sexual harassment—no longer teaches at the school and she herself no longer attends a school in the Gwinnett system, prospective relief accords her no remedy at all. The Government's answer that administrative action helps other similarly situated students in effect acknowledges that its approach would leave petitioner remediless.


In sum, we conclude that a damages remedy is available for an action brought to enforce Title IX. The judgment of the Court of Appeals, therefore, is reversed, and the case is remanded for further proceedings consistent with this opinion.

So ordered.

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.

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