Franklin v. Gwinnett County Public Schools, 503 U.S. 60, 19 (1992)

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78

FRANKLIN v. GWINNETT COUNTY PUBLIC SCHOOLS

Scalia, J., concurring in judgment

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.

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