NCAA v. Smith - Oral Argument

Argument of Carter G. Phillips

Chief Justice Rehnquist: We'll hear argument now in No. 98-84, National Collegiate Athletic Association v. R.M. Smith.

Mr. Roberts.

Justice Roberts: Thank you, Mr. Chief Justice, and may it please the Court:

This case is here from the Third Circuit which held that the NCAA would be covered by title IX if it received dues from member institutions which receive Federal financial assistance.

That decision is wrong and should be reversed.

It's wrong because Court has held that for an entity to be covered by title IX, or any of the other statutes with the same Federal funding trigger, the entity must itself be a recipient of Federal financial assistance.

The Court said just that in the Paralyzed Veterans case.

Quote, Congress limited the scope of the law to those who actually receive Federal financial assistance.

End quote.

Later in the same opinion, the Court said that these laws, quoting again, require us to identify the recipient of the Federal assistance.

End quote.

And it also explained why that is so.

Justice O'Connor: But we've also said that it can be... it can indirectly be a recipient.

Justice Roberts: In the Grove City case, Your Honor, but the test is the same.

Whether a direct recipient or an indirect recipient, the entity must be the intended recipient under the grant statute or program.

And the reason for that is clear, the condition... the prohibition on discrimination is imposed as a condition on the receipt of funds.

So, it is limited to those who accept the funds and thereby agree to the condition.

That is consistent with the Court's decision last term in Gebser which reaffirmed that construction and the rationale.

The discriminatory acts of the school employee in that case did not automatically trigger a damage action under title IX because title IX's coverage is limited to recipients.

The recipient was the school district, not the employee, and therefore the question was what did the school district know and what did the school district do or not do.

Justice Kennedy: Does Paralyzed Veterans modify the regulation that's involved in this case, 34 C.F.R.... what 106.h?

Justice Roberts: 106.2(h).

I think it can be read... the regulation could be read... consistent with Paralyze Veterans.

As even the Solicitor General acknowledges, all of the regulations impose obligations only on recipients.

And the regulation doesn't say, as the Third Circuit thought, that it was enough that you operate an educational program or activity.

Justice Kennedy: Well, it said directly or through another recipient.

Justice Roberts: Directly or through, a reference to the holding in Grove City that you can be an indirect recipient.

But the test is still the same.

Whether indirect or direct, are you the intended recipient?

What the Court said in Paralyzed Veterans is to find the recipient, you have to look to the...

Justice Scalia: How do you smuggle in intended recipient?

I mean, sometimes you say recipient, and then... and then you say intended recipient.

Do our opinions say intended recipient?

Justice Roberts: Well, Grove City is the case that I'm... I'm thinking of, and there what the Court... the checks were made out to the students.

But the statute that gave the money said this is to provide assistance to institutions of higher education.

The money could only be spent on tuition at those institutions of higher education.

Justice Kennedy: Well, if we didn't have Paralyzed Veterans or Grove... the Grove case, would you read the regulation naturally your way so that there has to be an intent?

Justice Roberts: Well, I think...

Justice Kennedy: I don't see where you get that from the face of the regulation if we talk just about that.

I recognize you have the gloss of the case.

Justice Roberts: Yes.

The regulation says that the receipt can be indirect, but it is still... you still have to be a recipient.

And it is not enough simply to trace the money.

And because you are paid by a recipient of Federal funds, that doesn't mean that you are also a recipient of Federal funds.

Justice Scalia: I don't understand that.

You're... you're not a recipient unless you're an intended recipient.

A direct recipient is a recipient, but an indirect recipient is not a recipient unless he's an intended recipient.

Justice Roberts: Well, what the... what the Court...

Justice Scalia: Does the word recipient has... have some... some connotation of intent in it?

Justice Roberts: Well, you have to... you'd be the recipient of the Federal grant.

What the Court said in Paralyzed Veterans in the easy case, if the grant statute extends money, quote, then the recipient is the entity that receives the money.

Justice Scalia: Suppose I'm giving... I'm given money.

I'm given food stamps.

And I can spend them anywhere I want and I spend them at a particular grocery store.

Wouldn't it be proper English to say the grocery store was an indirect recipient of the... of the food stamps?

Justice Roberts: The key is whether there is a Spending Clause contract between the recipient and the Federal Government whereby the recipient agrees to accept the conditions, the prohibitions on discrimination, in exchange for accepting the Federal funds.

Justice Souter: Well, was there a contract in Grove City?

Justice Roberts: There was, yes.

Justice Souter: With the institution?

Justice Roberts: With the institution.

That's what the case was about.

Justice Souter: I thought it was simply the... I thought... I guess I stand corrected.

I thought Grove City rested on the fact that the Government intended the institution to get the money, and it was, in effect, the... the specific intent to have the money end up with X that made X liable...

Justice Roberts: What the... what was the issue in the case was whether the university had to execute the... the contract that the Government gave it.

That's what... what the litigation was over, and the Court said yes.

And it said yes because in deciding who the recipient is, you look to what the statute says, and here it said this is for institutions of higher education.

This is all the money could be spent on.

So, the fact...

Justice Souter: It's basically the intent in appropriating the money that's the criterion.

Justice Roberts: In the underlying grant statute, as the Court said in Paralyzed Veterans, and in all of the briefs filed on the respondent's side of this case, you will not find analysis of an underlying grant statute that says, this is to extend financial assistance to the NCAA.

That's the key element that is called for by this Court's decision and it's missing from all the arguments on the other side because there is no grant statute that extends Federal financial assistance to the NCAA.

Now, the...

Justice Ginsburg: Mr. Roberts, what there is is a significant difference between the relationship of the airport in Paralyzed Veterans.

The airport was not made up of the recipients in the way that the NCAA's membership is largely recipients.

So, whatever Paralyzed Veterans said, it didn't have that picture in view, that is, an entity composed largely of constituents that are... are subject to title IX as direct recipients.

Justice Roberts: The... the NCAA is an association of its members, and most of its members, as Your Honor points out, do receive Federal financial assistance.

But the association does not, and the... the colleges as a collective group, with respect to their intercollegiate athletic activities, does not receive Federal financial assistance.

The individual colleges do and they remain responsible and covered under title IX.

But the NCAA does not.

And the Third Circuit's reasoning that they're somehow covered simply because the members pay dues presents the exact problem the Court was concerned about in Paralyzed Veterans, that if you depart from the Spending Clause contract, the entity that has accepted the condition because it has accepted the funds, then you... once you sever title IX from those moorings in the Spending Clause, it has almost limitless coverage because you...

Justice Kennedy: Suppose... suppose you had a Federal program that grants monies to colleges and for... for a specific program, the study of science in a particular area.

And a hundred percent of the colleges that receive the money put a hundred percent of the money into an association that's somewhat like the NCAA.

Would that association be covered?

Justice Roberts: No, because again that's the... the lesson of Paralyzed Veterans.

You don't just follow the money or follow the Federal financial assistance to an ultimate beneficiary.

The colleges would remain liable for any discriminatory acts of theirs, but the separate entity that they formed would only be covered if that entity accepted Federal financial assistance and thereby accepted the Spending Clause condition that goes along with the assistance.

Justice O'Connor: Mr. Roberts, there is some argument on the other side that, well, all this doesn't matter anyway because the NCAA gets money from the National Youth Sports Program fund as a direct recipient.

Now, do we deal with that question here or what?

Justice Roberts: It was...

Justice O'Connor: And is that... is that a federally constituted fund?

Justice Roberts: The issue of the National Youth Sports Program was not addressed either by the district court or by the Third Circuit below, and I don't think that this Court should address it, at least not in the... in the first instance.

It wasn't... presumably wasn't addressed by the Third Circuit because it wasn't raised before the district court.

Justice Scalia: What do you mean it wasn't raised?

Was evidence concerning it...

Justice Roberts: The only evidence...

Justice Breyer: in the record?

Justice Roberts: The only evidence in the record concerning the National Youth Sports Program was an affidavit filed by an NCAA officer that establishes that it's a separate Missouri corporation.

It's not the NCAA, and that the NCAA receives no money from the NYSP.

That's the only evidence of record in this case concerning that... that fund.

Justice Ginsburg: The evidence was also that it was once the NCAA directly and then it was set up as a separate fund, but when the program was new, the money went directly to the NCAA, didn't it?

Justice Roberts: Yes, and then... then a separate corporation was established to administer the grant, not the NCAA, which makes perfect sense because what the National Youth Sports Program does is not... doesn't concern intercollegiate athletics.

It's not something that's part of... central to the NCAA's mission.

Justice Scalia: Was there evidence that this organization does receive Federal... Federal funding?

Justice Roberts: The National Youth Sports Program receives Federal funding, yes.

Justice Scalia: I know it does.

Was there evidence... I'm trying to see whether...

Justice Roberts: Yes.

Justice Scalia: There was evidence in the record.

Justice Roberts: In... yes, I believe in the affidavit they explained that this was a Federal funding recipient.

But it's not the NCAA and the NCAA does not receive any of the money from the National Youth Sports Program.

Justice Ginsburg: Anyway, that was not explored below.

Justice Roberts: It was never addressed by either court below, and the fact that it wasn't has led to some confusion as to exactly what the claim is.

It's not clear whether the claim is sort of a veil-piercing claim that somehow the NYSP is the NCAA, which the allegations certainly don't support because that issue goes to observance of corporate formalities and the like, and there's no suggestion that that hasn't occurred.

Or is the allegation simply that the NCAA is an indirect recipient through the NYSP, which would raise the same issues as the dues.

There's no suggestion that the money that's extended to the NYSP is intended to be received or extended to the NCAA.

Justice Ginsburg: Well, there's a... more of a question of the separateness of the two when it's just the NCAA and the NYSP than when you have...

Justice Roberts: And those claims...

Justice Kennedy: hundreds of colleges and universities.

Justice Roberts: And those... as I say, those claims have never been tested in either court below because they weren't raised.

Justice Ginsburg: And the... and the court below didn't test either the theory that there was a joint venture among the colleges and universities to... to confer on the NCAA the authority for operating the schools' intercollegiate programs.

Justice Roberts: Well, the Third Circuit referred to the NCAA as something of a surrogate for the schools in... in this regard.

But here again... and the Government's own regulation establishes that... it's not enough that you're involved somehow in operating an educational program or activity.

Countless non-recipients do that in schools across the country.

You must also be... and the regulation says this... an entity to whom Federal financial assistance is extended.

So, the fact that the NCAA may play some role in intercollegiate athletics and that intercollegiate athletics may be a program or activity of the colleges and universities, not of the NCAA, because to be a program or activity under the statute, you must receive Federal financial assistance...

Justice Ginsburg: Mr. Roberts, there's one aspect of this case.

Is the NCAA a 501(c)(3) organization?

Justice Roberts: It is tax exempt, yes.

I'm not quite sure whether it's...

Justice Ginsburg: Well, my question is... is whether, independent of title IX... under the Fifth and Fourteenth Amendment and the Bob Jones decision, isn't the NCAA under an obligation not to discriminate in order to retain its tax exempt status?

Justice Roberts: Oh, well, first of all, it's important to appreciate the NCAA firmly endorses and embraces the principles of title IX, believes it does not violate that in any way, and conducts its activities to promote gender equity.

Now, the position... the question of whether the tax exempt status is... is... can be brought into question because of its activities is... is a separate one and it's distinct.

But under the Bob Jones case, yes, that to the extent the... the organization, any tax exempt organization, engages in these sorts of discriminatory activities, that can be called into question, but...

Justice Souter: But here it was just title... that title IX was the only...

Justice Roberts: Title IX was the only... the only issue that the Third Circuit addressed...

Justice O'Connor: And the allegation is that somehow the waivers were granted on a... on the basis of gender discrimination?

Justice Roberts: Well, the...

Justice O'Connor: Is that... is that the nub of the allegation?

Justice Roberts: The allegation is that waivers were given disproportionately to one gender as opposed to another, which we of course dispute on the merits, but the merits are not before the Court because the NCAA is not a Federal funding recipient.

This, by the way, used to be the position of the Government.

When the HEW issued regulations in 1975, it told the colleges in the area of intercollegiate athletics that you have the obligation not to discriminate, and they issued a regulation that said, and you're not... that obligation isn't obviated or alleviated by any athletic association rule.

And the colleges squawked about that and they said, well, you know, what... if there's an association rule that says one thing and title IX says the other, that doesn't seem right.

And HEW stuck to its guns and it said, look, you are the members of this association.

If they have a rule that causes you problems complying with title IX, change the rule.

And then when the NCAA challenged these regulations, the agency and the Justice Department alleged that we had no standing because title IX did not apply to us, the regulations didn't apply to us, because they didn't apply, as their brief put it, to a private athletic association.

Justice Stevens: I can understand...

Justice Breyer: Your view is that...

Justice Stevens: Excuse me.

I can understand that position on the merits if it's a rule that's being challenged, but here it's the enforcement of a rule of discriminatory policy in granting or refusing waivers.

What can a school do about it in order to avoid a charge of discrimination?

Justice Roberts: Well, first of all, it shouldn't make a difference what the... what type of rule it is.

I mean, the NCAA is...

Justice Stevens: Well, except there was a rule that on its face said only women... only men can play volleyball or something like that.

The rule would clearly know it should not follow such... the school would clearly know it should not follow that rule.

But if the rule is facially neutral and the claim is that somebody over whom the school has no control is... is operating in a discriminatory way, what is the school supposed to do?

Justice Roberts: Well, first of all, whether the NCAA is covered to not shouldn't depend on what type of rule it is.

But in that situation, it's really just an evidentiary matter.

If the allegation is everybody else gets waivers from this rule, that's something that can be investigated by the school.

It's the school's responsibility because the school is engaging in the... in the activity that's covered by title IX.

The one thing, of course, that HEW would have said in response to the school's objection if it were true is, well, don't worry.

The association is covered too and it will be... and it will be sued.

It did not say that.

And the Justice Department and the agency sued because we were not covered when we tried to challenge the regulations.

Now, 20 years later, they come in with a new theory that says, don't... don't look at recipient, which has been the cornerstone of the Court's title IX jurisprudence.

Don't look at who the recipient is.

Just ask yourself whether this entity has ceded authority or effective control, a much more amorphous inquiry that departs from the bright line recipient test and also rips title IX...

Chief Justice Rehnquist: Was that theory the one relied on by the Third Circuit?

Justice Roberts: No, I don't believe so, Your Honor.

The Third Circuit said that the NCAA was covered because the dues... the members were covered and they paid dues and it sort of followed the money chain and that was sufficient.

The ceded authority or effective control theory is a... is a new theory, and it's one that shouldn't be adopted, particularly with respect to a threshold determination of coverage.

That should be a bright line rule, as it is under this Court's decision, are you a recipient, instead of an amorphous, multi-factored test that would ask who's in control and who's not in control.

And that test also does not limit the universe of those covered in the way that this Court in Paralyzed Veterans indicated was necessary because any time you have an intercollegiate athletic event, there are lots of different entities in charge of different aspects, some connected with the college, some not connected with the college, some that are a Federal funds recipient, and some... some that are not: the entity that... that might rent out the auditorium, vendors who might provide services, in some cases other organizations that are setting rules, like the United States Golf Association would be setting the rules for a golf tournament

All of those entities have some sort of authority or effective control over the activity, but that shouldn't make them covered by title IX when they are not recipients of the Federal financial assistance.

Justice Breyer: To specify the case I'm thinking of, imagine a university that has lots of different rules, teaching rules, tenure rules, curriculum rules, dozens of them, many of which they think are important.

Five universities have such rules.

The five get together and they say, well, what we'll do is have a modern languages association and they will be the enforcer of the rules and the creator.

Now, your view is that even though the modern language association, say, is doing just what the universities used to do, it can't be sued.

Justice Roberts: It cannot be sued unless...

Justice Breyer: But... but how... but there is a remedy nonetheless.

You sue the university.

Justice Roberts: Of course.

Justice Breyer: And in any case in which you could have sued the university, had the modern languages association not been in existence, but the university would have done that, you still can sue them.

And you just order them to make certain that... not follow the... the... the association rule.

Is that the idea?

Justice Roberts: Just... just what HEW said when it issued its regulations.

It's no defense that an athletic association, or in your case the modern languages association, has a rule and you're just obeying that rule.

Justice Breyer: All right.

So, it's... that means it's not a defense.

That means you have to pretend that it's the school's rule, and the fact that it's very tough for the school to get everybody together and make these changes, et cetera, is totally beside the point.

Is that your view?

Justice Roberts: Whoever is implementing the... the discrimination and is the recipient, in your hypothetical the colleges and universities, can be sued for that discrimination.

The entity that is in your hypothetical setting the... the rules unless...

Justice Breyer: And then policing them.

Justice Roberts: Unless it is itself a recipient of Federal financial assistance, it's not covered by title IX.

Now, this is... it's not...

Justice Scalia: I don't quite see how the university gets... gets stuck here.

As far as the university is concerned, it pursuant to the rules has denied a waiver in circumstances where denial would be perfectly appropriate.

As far as what the university has done, the university hasn't discriminated at all.

Justice Roberts: Well, if the university is...

Justice Scalia: The only thing that makes the waiver... the denial of the waiver bad is that this other organization has granted waivers in other universities in other contexts.

How... how do you pin this on the... on the university?

Justice Roberts: Because the university is the entity that is operating the covered program or activity and the fact that it may be... is complying with a discriminatory rule is no defense and the fact that it is complying with... and applying a rule...

Justice Scalia: But it hasn't done anything except deny a waiver under circumstances that are totally reasonable, and it... it hasn't granted any waivers to any of its students under any of its programs.

It's only the granting of waivers by the NCAA to other students in other programs that makes the thing look discriminatory.

Justice Roberts: Well, and it's just an evidentiary question to know that.

If you have a rule that's being applied in a discriminatory manner, you're not free to say, well, I'm just going to apply the rule regardless of the fact that others are not applying the rule.

Justice Scalia: But the university is not applying the rule in a discriminatory manner.

It's the non-recipient that is applying the rule in a discriminatory manner.

Justice Roberts: By not... if everyone else is granting waivers and this is something the university knows, its decision not to grant a waiver would be applying the rule in a discriminatory manner.

It's... it's an evidentiary question to find out how it's been applied before.

The fact that it may be...

Justice Souter: But... no.

I'm sorry.

Finish the sentence.

Justice Roberts: I was just going to say the fact that it may be easier to get the information from one entity as opposed to another doesn't mean that title IX coverage extends to an entity that has not accepted Federal funds.

Justice Souter: I was going to say, isn't the theory, though... as Justice Scalia's question points out, the theory is not merely, I guess, that the university has... has sort of voluntarily ceded authority to administer the rule.

It has sort of ceded authority or, rather, it in effect has made itself part of a larger scheme, and if it has voluntarily made itself part of the larger scheme that discriminates, you tag the university with the discrimination.

Isn't... isn't that the theory?

Justice Roberts: Well, the university is covered by... if it makes a decision that we're going to apply the rules of the XYZ organization and the XYZ organization is known to always apply discriminatory rules, it can't insulate itself from that.

It is... it is responsible for its own actions.

Justice Souter: Right, but when... when it does that, it's doing something more than saying we will cede the decision to apply our rules to this other body.

It is really saying we are joining a... that body's regime of law in place of our rules.

That's what it's really doing.

Justice Roberts: But... but... but the important thing is that the university retains control over the ultimate decision.

This Court addressed that in the... in the context of State action in the Tarkanian case.

Justice Souter: It does so because it can always defy the organization.

Justice Roberts: Yes.

Justice Souter: But until it defies it, it in effect is placing itself in a different regime.

Justice Roberts: Yes, and... and it's no defense to whatever discrimination is alleged to say, well, we're just following somebody else's rule.

Justice Breyer: It sounds like it would produce a bigger mess for these organizations than if you sued them directly.

You'd have universities all over the place just not carrying out the rules lest they be sued.

Justice Roberts: Well, and what tends... tends to happen is exactly what HEW said should happen back in 1975, which is you or the... you're covered.

You're the members.

If this rule is causing you problems, change the rule.

That's what tends to happen as a matter of practice.

Justice Breyer: Are we supposed to reach this argument in your view in this case, this... this issue of ceding authority and that they're covered because it's the ceding of authority, et cetera?

Justice Roberts: Well, I don't think it's necessary to reach it to reverse the Third Circuit's decision because that was based on the payment of dues.

Justice Breyer: No, no, no.

I mean, it's a defense of the Third Circuit's decision.

Justice Roberts: But... but if the Court reaches it, it seems to me that it ought to be clear that this is a departure from what has been the unifying thread in this Court's title IX decisions, which is that coverage is limited to a recipient, not to someone who has ceded authority, effective control, something like that, but the recipient itself.

Justice Souter: Mr. Roberts, apart from that... that rather glancing statement that... that you quoted from the Third Circuit opinion, was this issue really explored in front of the Third Circuit?

Justice Roberts: No, not the effective control or ceded authority.

Justice Stevens: Mr. Roberts, what do you think we should do with the case if we agree with you that the Third Circuit reasoning was wrong, but we're not sure about whether they should have been allowed to file an amended complaint?

Justice Roberts: Well, in that case, Your Honor, I think the decision... judgment should be reversed and the case should be remanded for further proceedings, including to allow the Third Circuit in the first instance to decide which arguments have been preserved, which arguments have been waived.

Justice Kennedy: Did you argue before the Third Circuit that the amendment to the pleading was inadequate?

Justice Roberts: Well, the amendment to the pleading was... was really beside the point because the district court, at page 31a of the petition appendix, treated the claim as if it had been made, that the NCAA was an indirect recipient.

It posed the question that the district court and the Third Circuit addressed which is what's... what do you have to show to establish that.

So, that it seems to me is a... is a red herring because the district court treated her original complaint as if it had alleged the NCAA was a recipient because of these connections.

Thank you, Your Honor.

Chief Justice Rehnquist: Thank you, Mr. Roberts.

Mr. Phillips, we'll hear from you.

Mr. Phillips: Thank you, Mr. Chief Justice, and may it please the Court:

I guess I'd like to start essentially where Mr. Roberts ended which is an examination of what is at a minimum the appropriate course for this Court to follow with respect to the unusual posture of this case.

This case, as you know, was brought by a pro se litigant to file the complaint.

The complaint was immediately dismissed on the grounds that the NCAA is in some sense not subject to title IX or at least not on the basis of the allegations in that complaint.

And she amended her complaint, and in the amended complaint, she alleges quite plainly at paragraph 65, which since the amended complaint was only added to the record afterwards, it's unfortunately not in the joint appendix, but it has been lodged, the NCAA is a recipient of Federal funds because it is an entity which receives Federal financial assistance through another recipient and operates an educational program or activity which receives or benefits from such assistance.

And it seems quite plain to me that if you give any kind of a liberal interpretation to the pleadings of a pro se litigant in the context of that case, that that allegation has raised a whole slew of theories as to why the NCAA ought to be regarded at a minimum as a recipient, either direct or indirect.

Justice Kennedy: Was the pro se litigant a lawyer?

Mr. Phillips: At the time of the complaint, no, Your Honor.

She was not.

Justice Breyer: She'd been to law school?

Mr. Phillips: She was in law school at the time.

And as a consequence of that, then it seems to me that we look at the... at the National Youth Sports Program issue that's been posed in this case.

And the suggestion that somehow there is anything that this Court should do other than allow that matter to go back to the Third Circuit seems to me largely fanciful because it is clear that Ms. Smith raised that argument explicitly in her brief in the Third Circuit, contrary to the argument made by petitioner in its opening brief.

Chief Justice Rehnquist: Did the court of appeals consider it?

Mr. Phillips: I don't know whether it considered it.

It didn't address it explicitly, Mr. Chief Justice.

On the other hand, it had an alternative theory in mind that was perfectly sufficient on which to send the matter back.

And remember, we're talking about sending it back to allow her to amend the complaint and then to proceed with discovery into a wide range of issues, including the nature of the National Youth Sports Program and the nature of the relationship between the NCAA and all of its member institutions.

So, it's not surprising that the Third Circuit wouldn't reach out for alternative grounds for reaching essentially a result that just moves this litigation from square one to a baby step...

Chief Justice Rehnquist: Yes, but our practice is that we... we simply don't deal with issues that haven't been dealt with by the court of appeals, as you know from recent experience.

Mr. Phillips: As I know all too well, Mr. Chief Justice.

I appreciate that.

[Laughter]

On the other hand, it is... but the one thing that's absolutely important in the process is to recognize that the issue, as it appears on the record before this Court at this time, was squarely presented below.

It is squarely accepted as a legitimate basis for going forward at the... at the complaint stage, remembering that there are two Federal district courts that not only have upheld this theory at the complaint stage, but have held that if you get into the evidence and you find out the nature of the relationship between the NCAA and this source of Federal funding, you'll ultimately think that there is an ultimate question of fact that must go to a trier of fact with respect to the coverage of the NCAA as an... as a recipient under the statute.

So...

Justice Scalia: Is it clear...

Mr. Phillips: it's preserved.

Justice Stevens: Is it clear or is it sort of unclear from the record whether the theory of coverage under the proposed amendment of the complaint is sort of a veil-piercing theory that a subsidiary should be treated like the parent, or on the other hand, that it's a theory similar to the one of the Third Circuit here that they manage the program... or they control the program...

Mr. Phillips: It is not clear from the complaint...

Justice Scalia: It is not.

Mr. Phillips: exactly which way, but I think it could be read, frankly, to embrace both...

Chief Justice Rehnquist: Both.

Mr. Phillips: of those theories as... in terms of how it was developed and certainly in terms of how it's been argued from henceforth.

And if the theory is you go back and amend the complaint, it seems quite clear that both of those alternative rationales should be available to her and we should be allowed to engage in discovery along those lines.

Justice Scalia: It isn't just a question of whether... whether the rationale is available.

It's a question of whether she had any factual allegations that would support all of the rationales.

What... what factual allegations were there?

Or... or... or is the... is the pro se litigant to be excused from the necessity of supporting the allegations with some factual allegations?

Mr. Phillips: Well, there are two answers to that.

First of all, there is a statement and an affidavit in response to the initial complaint that does, in fact, identify this program as an entity that receives Federal funds.

Justice Scalia: That's a conclusion.

That's conclusory.

That's no facts at all that would support any theory that... that you're asserting here.

Mr. Phillips: Right.

Well, my alternative argument is that even a pro se plaintiff is allowed to make the basic claim that somebody is a recipient because they received money from some other entity.

Justice Scalia: You can make as many claims as you'd like, but when there's a motion to dismiss, it seems to me you have to come up with factual allegations that will support the theory that's... that's in your complaint...

Mr. Phillips: Well...

Justice Scalia: and not just a conclusory statement that, for whatever of various reasons, this entity is a recipient.

Mr. Phillips: But, Justice Scalia, the issue now comes to the Court on a remand for... for leave to file an amended complaint and which we all know, to a moral certainty, the facts that will support the amendment of the complaint and allow this case to go forward at this stage in the litigation.

That's all.

Justice Scalia: Well, it... do we do that when there's been a motion for summary judgment and the motion has been granted?

Do we say, well, they didn't come forward with the facts, but we all know that the facts are there, so we'll send it back and let them come forward with the facts?

Mr. Phillips: You might...

Justice Scalia: How many swings do you get at this thing?

Mr. Phillips: You... well, you get at least one more swing I hope.

But basically, Justice Scalia, that's not the posture of the case.

The Third Circuit has already set aside the district court's dismissal and did so on the grounds that the... that the district court abused its discretion under rule 15.

And let's be clear about that.

That issue was not presented by the NCAA.

They didn't raise that issue.

They didn't have any quarrel with the idea of rule 15.

Justice Ginsburg: Was it... was it a 12(b)(6) or... did the district court go on 12(b)(6) or 56?

Was it summary judgment?

Mr. Phillips: 12(b)(6).

It was a motion...

Justice Breyer: All right.

So, there is no motion for summary judgment, so she needn't have come forth.

Mr. Phillips: Exactly.

Justice Scalia: There is no need to come...

Mr. Phillips: That... that... my view is that the allegations are sufficient to... to get past the rule 12(b)(6) motion, Justice Scalia.

But... but certainly in the posture of a case where it's been sent back for allowing an amendment to the complaint at this stage...

Justice Stevens: Well, it's not really quite that easy.

I sympathize with your position, but if we should conclude... I'm not saying we would... that the reason that they gave for sending it back is erroneous, then we're asked is there another reason which would justify the same judgment, that it was not an... that it was an abuse of discretion to deny leave to amend.

Then the question, it seems to me, arises is that decision to be made on the basis of what she alleged in her amended pleading or can she also rely on an affidavit that's filed later before the court of appeals that the district court never had a chance to...

Mr. Phillips: Well, no, the affidavit was before the district court.

Justice Stevens: Oh, was it?

Oh, I misunderstood.

Okay.

Mr. Phillips: So, I mean, that's... that's part of the overall record that was before the court of appeal, and the issue was clearly raised.

And it seems to me at the very outset of the litigation, you...

Chief Justice Rehnquist: If... if it's a motion to dismiss, why was there an affidavit in there anyway?

You think of that as appearing at the summary judgment stage rather than on a motion to dismiss.

Mr. Phillips: Mr. Chief Justice, you're going to have to ask Mr. Roberts the rationale for the NCAA putting the... putting the affidavit before.

Chief Justice Rehnquist: The affidavit was filed by the defendant.

Mr. Phillips: Yes, Your Honor.

So... but the basic point here is... remains, at least in my judgment at this stage as the case comes to this Court, the proper course at a minimum to follow is to send it back to allow the proceedings to go on with respect to the relationship between the NCAA and the National Youth Sports Program.

Now I'd like to address what I think is the more central legal issue in this case, at least in my judgment.

And you will notice that in Mr. Roberts' analysis of this case, he spends very little time focusing on the statutory language, jumping ahead instead to... to decisions of this Court.

I'd like to go back to the statutory language because I don't believe, frankly, that you need to be an actual Federal fund recipient under section 901(a) in an action brought as a private right of action against a defendant who is clearly a wrongdoer in the context of the allegations of this complaint.

This Court held in Gwinnett that... the rule has been around for at least a hundred years, and perhaps even longer, going back to Blackstone... that all wrongdoers can be held liable on damages for the wrongs that they do.

And they should be... and they should realize that they're put on notice, that when they engage in actions that violate statutes, that the person who's been injured by that, and particularly the person who was in the special class of people to be protected, is allowed to come forward and seek damages for that particular injury.

And it seems to me that the language of 901(a), which says that no one shall be excluded from participation in a federally funded activity on the basis of sex, specifically, explicitly, and completely covers the situation posed by...

Justice O'Connor: Well, it says under any... any education program or activity receiving Federal financial assistance.

Mr. Phillips: That's correct, Justice O'Connor.

Justice O'Connor: And the argument is that NCAA doesn't receive Federal financial assistance.

Mr. Phillips: That's correct, but...

Justice O'Connor: And they certainly don't directly.

Mr. Phillips: Well, depending...

Justice O'Connor: They don't.

Mr. Phillips: Depending on how you view the... the sports program.

Justice O'Connor: Well, I mean by virtue of the membership dues...

Mr. Phillips: Right, not through the membership dues.

On the other hand, Justice O'Connor, recognize that the language does not define the class of defendants.

It says you can't be excluded from a program or activity, and there's no question that playing volleyball at the intercollegiate level is a program or activity that is federally funded within the meaning of the statute.

Justice Scalia: So, if I'm a parent and... and I don't want my daughter to participate in... in gym... I for some reason don't think girls should play athletics.

That's my... my parental view.

I'm guilty of violating this provision if I... if I stop the... the child from going to gym in school.

Justice Stevens: Right?

Mr. Phillips: No, of course, not.

Justice Scalia: Why not?

Mr. Phillips: Because at a minimum it seems to me...

Justice Scalia: You're talking about a program.

A person has been discriminated against under the program, prevented from participating in... in one of the school functions.

Mr. Phillips: It doesn't work so that if you open the door to... to an entity that has been ceded control and authority over the operation of the program as opposed to over the operation of the participants in the program...

Justice Scalia: So, you're limiting your principle then.

You're... you're no longer relying on the plain language of the statute.

You're saying there have to be some conditions made to...

Mr. Phillips: No.

What I am saying is, is that the plain language of the statute doesn't permit the NCAA or this Court to limit the scope of 901(a)'s protections solely to those who actually receive Federal funds.

Justice Scalia: Only parents.

Only parents.

It permits them to limit it.

Justice Kennedy: What about a schoolyard bully?

Mr. Phillips: I'm sure there will be others as well.

Justice Kennedy: What about a schoolyard bully who prevents the program from really operating?

Mr. Phillips: I think...

Justice Kennedy: Under the Blackstone theory that you... that you cite, I... I take it other students could sue the bully.

Mr. Phillips: I think that the genius of this Court's decision last term in Gebser is in its holding that once the Court determines that basic liability coverage applies... and Gebser was clearly a Federal fund recipient and it did apply... and it found right that the NCAA ought to be subject to 901(a) liability in the first instance, the question then becomes how do you structure the rules of liability in a way that is consistent with Congress' overall intent.

And my feeling about the bully and the problem that he poses, one, the regulations focus very much more on entity and controlling operations.

And the Court can certainly limit liability consistent with that.

Second of all, the legislative history of title VI and the legislative history of the Civil Rights Restoration Act spends a great deal of time focusing on concerns about extending liability to individuals.

That's why they didn't have ultimate beneficiaries be subject to liability under that... under those statutes.

And therefore, it's reasonable to confine the scope of the 901 remedy to people who... to things that are not individuals.

Justice Breyer: Well...

Mr. Phillips: But, of course, that's not posed by this case, but clearly that's... that's the way...

Chief Justice Rehnquist: Our decision in Paralyzed Veterans construed the statutory language, and you know, perhaps a broader construction might have been permissible, but it put a definitive construction on the language.

Mr. Phillips: I... I would argue, Mr. Chief Justice, that Paralyzed Veterans construed the language in section 902(1) which is targeted specifically at Federal fund recipients.

And that's a very important distinction between these two provisions.

The private right of action case... cases come out of 901(a).

The Federal regulatory cases and... and Paralyzed Veterans on at least two separate occasions specifically identifies the scope of what it's aimed at at the Federal regulatory authority, and that comes from 902(1).

Justice Stevens: Mr. Phillips, I understand your plain-language argument, and I think it's quite persuasive.

But... but this... this problem concerns me.

Under your construction of the statute, if I understand it correctly, the scope of the private remedy is broader than the scope of the remedy available to the United States.

Mr. Phillips: It could potentially be broader.

There is...

Justice Stevens: But within this very case.

Mr. Phillips: Well, it may not... yes, in the sense that...

Justice Stevens: Because they can't cut off funds to the NCAA if the NCAA doesn't get any funds.

Mr. Phillips: Clearly the 10-point fund termination provision would not be available.

Whether it's possible that the other enforcement mechanisms of 902(2) could be brought to bear it seems to me an open question that's not really posed here.

So, it may be that you could eventually bring them in sync.

In the short run, absent regulations, you're right...

Justice Stevens: But it does seem anomalous to say that a... a... an implicit remedy, a private cause of action, is broader than the... than the statutory express remedy.

Mr. Phillips: I think the answer to that has to be that the purpose of adopting and why Congress did adopt an explicit... or not an explicit... an implicit private right of action was to ensure enforcement, recognizing that there would be situations where the most effective enforcement would come at the hands of the person who was directly affected.

And if that requires going beyond the immediate Federal fund recipients, that's fine.

And there's one other rationale for that.

Justice Scalia: Could I ask before you get to one other rationale?

Mr. Phillips: Okay.

Justice Scalia: As I understand it, this... this means that... that even though the implementing agency issues regulations which the university complies with, the university may, nonetheless, be liable to private suits because private individuals are not governed by these regulations.

Mr. Phillips: I... I... it's hard for me to imagine a situation in which you comply with those... with those and that that interpretation is consistent with Chevron...

Justice Scalia: Oh, I can imagine lots of situations.

Mr. Phillips: where you could then construe the statute in a way that would be different from that.

Justice Scalia: In the... in the earlier situation where... where the agency was not taking the position that the NCAA was covered but was taking the opposite position, that would have been exactly that case.

Despite the fact that the agency takes one position, a private individual gets the law interpreted by a court in a... in a... in a different fashion insofar as it applies to private individuals.

Mr. Phillips: No, but that's because... Justice Scalia, that's the distinction between 901 and 902, and what you're saying is that when we... when we use the entire regulatory enforcement powers of 902... and let's be clear, that was the second point I was trying to make, Justice Stevens.

It's one thing to say we're not going allow you to intentionally intrude into the operation and program and to exclude someone on the basis of their sex and... and we're going to provide a direct remedy to that problem.

But it's a vastly different thing to say that we're going to impose the entire regulatory regime of the Federal Government on you in circumstances where you didn't voluntarily accept the Federal funding under a particular set of circumstances.

Justice Breyer: I missed your... I missed...

Mr. Phillips: That's why... that's to me why they shouldn't necessarily be congruent.

Justice Breyer: I missed your basic distinction.

You were saying that people can be liable under the act who don't receive Federal funds if those people themselves deprive a person of a right to participate in a program by an institution that does.

Mr. Phillips: In some circumstances.

Justice Breyer: All right.

Now, what circumstances?

You seem to me to be saying that it was not the case that an individual could, that it was the case an entity could.

Mr. Phillips: Right.

Justice Breyer: Well, if that's so, it... I mean, that doesn't seem... I can't figure that one out.

I mean, a thief who stole books from the women's dormitory couldn't because it's a thief, but the electricity company that cut off the electricity to the women's dormitory so they couldn't participate would?

I mean, there must be some limiting principle in that.

Mr. Phillips: No, no, and there is... there are two principles.

Chief Justice Rehnquist: It can't be that one.

Mr. Phillips: No, no.

I'm sorry about that, Justice Breyer.

There are two principles at stake here.

One deals with the question of whether individuals necessarily go along if you bring organizations in, and I was suggesting that I think you can make distinctions there.

The second one is that... the basic theory of the brief, which is that it's only in situations in which the defendant has been ceded control and authority to make the final exclusionary decision.

Justice Breyer: That's what... it's a kind of control theory.

Justice Kennedy: It's a kind of...

Mr. Phillips: I didn't mean to exclude that.

I was...

Justice Breyer: It's a kind of delegation of control theory.

Mr. Phillips: It's a delegation of control theory.

Justice Breyer: And is that... to what extent was that delegation of control theory, which is I think a very interesting theory... to what extent has that been explored below or in other courts?

Mr. Phillips: Below not at all, but I think it's important to realize that this is an invited answer by the respondents in this case.

If you look at the question presented in the cert petition, it's... it was initially a fairly narrow question.

If you look at the NCAA's first five pages of its argument, the argument says, this statute is strictly limited to Federal fund recipients and no one else.

And... and therefore we responded to the NCAA's effort to expand the scope of the argument.

I think it's subsumed within the question presented, to be sure, and we joined issue with them, and they've joined issue with us back.

So, I think the issue is squarely presented by the circumstances of this particular case.

Justice Ginsburg: Mr. Phillips, as far as organizations are concerned and the conceding control for the operation, the petitioner's brief included an... an appendix with lots of academic type organizations.

And what is your counsel with respect to that list?

Are they all like the NAAC... NCAA?

Are some of them like it?

How many of those dozens of organizations would be covered?

Mr. Phillips: Well, this brings us back to the same basic problem that I had at the outset, which is let's remember the posture of this case.

This is on a motion to dismiss at the very earliest stages of the litigation.

What we're saying is that as a legal theory, you can't stop at the Federal fund recipient.

You have to go beyond that, and in order to figure out, one, where you go beyond that and whether that's a legitimate basis for imposing liability in this circumstance and how it would apply elsewhere, we need the discovery to understand the relationship between these... between the members and their organization.

And then I'll be in a position frankly to be able to answer the question about how other organizations...

Justice Ginsburg: But on the Third Circuit's theory, they're... they're all covered now because they all... all get dues from recipients.

Mr. Phillips: Right, and we don't... and we do not embrace the broadest view inside the Third Circuit's analysis.

I don't think... and I don't think the Court needs to go there in order to allow what I think is ultimately the right answer here, which is to permit this case to go beyond the complaint stage to allow us the opportunity to engage in the kind of discovery and to flush out the legal theories that have been presented to this Court.

Justice Ginsburg: I had one question about bringing in the schools themselves.

There's no limitation problem because they were... that was proposed at an earlier stage at the time...

Mr. Phillips: Well, we have... we have... the complaint does add the schools.

I think the schools have raised a statute of limitations issue, but obviously it hasn't gone anywhere given the posture of the case.

If there are no other questions, I urge affirmance and cede the podium to Mr. Kneedler.

Argument of Edwin S. Kneedler

Chief Justice Rehnquist: Thank you, Mr. Phillips.

Mr. Kneedler, we'll hear from you.

Mr. Kneedler: Mr. Chief Justice, and may it please the Court:

The Third Circuit decided this case, at least as petitioner understands it, on a theory that someone in the position of the NCAA can be subject to suit under title IX solely on the ground that it is a mere beneficiary of the program and on that ground alone.

We agree with petitioner that that reading... if that is what the Third Circuit meant to hold, that that is incorrect, and that that is inconsistent with the decision in Paralyzed Veterans.

All that this Court needs to decide is that that particular theory was incorrect and it could remand for consideration of alternative theories.

For example, the petition in this case presents the question on the assumption that petitioner is not a recipient, but is... does its receipt of payments... does the receipt of payments by a non-recipient essentially on the benefit theory subject it to liability?

The question... the question of, however, of whether the NCAA is a recipient, either because the colleges operate programs and pay dues which pass on some of the Federal financial assistance, or alternatively, because of the Health and Human Services grant that is... that is made to the National Youth Sports Program, operated and administered according to the NCAA's own constitution by a committee of the NCAA, whether either of those theories of being a recipient subjects it to coverage is not, I think, within the question presented and could properly be considered on remand.

The other question of whether the NCAA is subject to suit under title IX, because it has been ceded controlling authority over the operation of the program in certain particulars, was I think fairly raised in the court of appeals on pages 5, 9, and 22 of the respondent's brief, but that too was not addressed by the court of appeals and could be considered on remand.

I think it's important, though, in leaving these questions open for the court of appeals, for this Court not to rule out the possibility or not to foreclose as a matter of law any of these various theories because this case is at a very preliminary stage, and the court... the district court...

Justice Stevens: But, Mr. Kneedler, it is true, isn't it, I think that the briefs have adequately argued out the question whether the NC... the association's control over the program is sufficient to subject it to liability.

Mr. Kneedler: Yes.

There's no doubt... there's no doubt that that has been briefed.

My... my only... my only point was this Court does not need to resolve that question because it was not addressed by the Third Circuit.

My only point was that...

Justice Stevens: Well, I understand we don't have to.

Mr. Kneedler: Right.

Justice Stevens: But don't you think we should?

Mr. Kneedler: Well, I think it might be... the...

Justice Stevens: I mean, that's really the issue in the case right now.

Mr. Kneedler: Well, the... the... the only legal issue in the case would be are... is it... is there a categorical rule that can a non-recipient never be held liable under title IX.

If that... if that... only that question I think is presented, but I do think... on this record because this comes up in a motion to dismiss, but I think that may be a question in which the Court might be informed by a fully developed record when that situation comes up in terms of knowing the... more facts about the relationship between the NCAA and the... and the member institutions.

In fact...

Justice Souter: Do we have record... do we have anything in the record that would answer that question?

For example, I... maybe I wasn't paying attention because I didn't think it was important to me, but do I... do I know from the record... should I know from the record exactly what would happen if either of these colleges defy the NCAA?

Can I tell that from the record?

Mr. Kneedler: I... not definitively because...

Justice Breyer: Then I guess...

Mr. Kneedler: the member institutions...

Justice Souter: that would go to the question of what... what degree of control there was.

Mr. Kneedler: Right.

The member... the member institutions, as this Court pointed out in... in both of its prior cases involving the NCAA, are bound to implement that the... follow the rules of the NCAA and to implement the determinations of eligibility in particular cases.

And there's no reason to think that the member institutions wouldn't be required to do that, which is precisely why we believe that they... that the NCAA has been ceded controlling authority over particular participation...

Justice Souter: Well, except... may I just ask one?

Justice O'Connor: Sure.

Justice Souter: Except we have a regulation in front of us under which presumably there shouldn't be any discrimination, but the claim is that the regulation is not being administered according to... to a... by a neutral application of its terms.

And I suppose there... there may, indeed, be rules governing the relationship between a college and the... the NCAA and they not be administered according to their... neutrally according to their terms.

And so, it seems to me that it would be wise to... to have an opportunity to find that out and have a record so indicating... indicating that opportunity before we get into it.

Mr. Kneedler: Right.

No, I... I agree with that.

I... I... I would like to address, though, the... the argument to the extent this Court is...

Justice Scalia: Before you do that, I don't agree with it, and... and explain to me how knowing the facts which establish the ceding of control will help us decide the question whether the ceding of control violates title IX or not.

Mr. Kneedler: Well, I... I think knowing...

Justice Scalia: I mean, all of these facts to go to whether in fact control has been ceded.

Let's stipulate total control has been ceded.

Mr. Kneedler: Well, I think... I think knowing exactly what that means, that's descriptive, but knowing exactly how that operates...

Justice Scalia: What it means is that total control has been ceded.

What... what could it mean beyond that?

Mr. Kneedler: Well, it... looked at in that way...

Justice Scalia: I really don't see how we... how we need more facts to decide that... that quite clear question of law.

Mr. Kneedler: Well, there... there are two questions here.

One is... one is the prudential consideration with respect to the development of facts, and another is the fact that this issue was not addressed by the court of appeals on... on the law.

And this Court doesn't... as the Chief Justice pointed out, does not normally address legal issues that were not resolved below.

But let me... let me address the... the legal issue on the premise that the Court might choose to address it.

Justice Breyer: Well, I mean, it would depend on whether you address it what your answer is.

I guess in those circumstances, no matter what I guess you could address it, but if it's a more complicated question than that, maybe you should get the facts.

Mr. Kneedler: Right.

No, I agree with that.

But... but on... if... if the Court is disposed to consider whether the absolute rule that... that the NCAA seems to be arguing for here, I think it's important to...

Justice Scalia: Exactly.

They're arguing the absolute rule.

Mr. Kneedler: Right.

And I think it's important... I think it's important to consider, as Mr. Phillips pointed out, that... that the operative provision under which this Court found the private right of action identifies the class of protected persons, but does not identify a class of defendants.

So, I... I think the categorical rule is not supported by the very provision under which the right of action has been implied.

That is not to say, however, that everybody who may have some effect... discriminatory impact on... on the program is covered, and it's important to look...

Chief Justice Rehnquist: Well, but that... that produces difficulties of its own, Mr. Kneedler, since this is a Spending Clause program.

And the commitments of the States and so forth are supposed to be clearly spelled out.

And if we have this kind of amorphous thing, it might be, but it might not be, that itself tends to run afoul of Spending Clause decisions.

Mr. Kneedler: Well, it... I think in this... in this case in particular it does not because what section 901 says is that there shall be no discrimination in a program receiving Federal assistance, not a program operated by a recipient, but a program that receives Federal financial assistance.

There's no doubt that the intercollegiate athletic programs of all... of probably the vast majority of the NCAA's member institutions receive Federal financial assistance.

The... and ordinarily, if you look at 1687, it refers to the operations of a... of a program or activity.

The question then I think is who operates it.

Ordinarily it's the recipient, but where the recipient has basically ceded control to what is, in effect, a super board of trustees for purposes of establishing rules or making individual determinations for the college that are binding on the college, it seems to me a straightforward application of... of section 901 and looking at 1687 in terms of who operates the program.

Justice Scalia: It seems to me, Mr. Kneedler, no... no total answer to the point the Chief Justice was making to the point that the rule you urge will create confusion.

It seems to me no answer to say, well, its application will be clear in the present case.

I mean, we're adopting a rule that will apply to hundreds of thousands of other cases, and it doesn't give me great comfort to know that, well, it's easy to say how it applies here.

Mr. Kneedler: Well, I... our... our position here is solely where the... where, in effect, the board of trustees, which would otherwise have final decision making authority for the recipient, turns that final decision making authority over to what is, in effect, a superior governing authority.

Justice Stevens: But if... if you're right that that would impose liability on the superior governing authority, would the school itself still be liable?

Mr. Kneedler: Yes, and under the title IX regulations, that makes that clear.

I'd like to just for a moment address another point that... that Mr. Roberts made with respect to the recipient theory and whether the NCAA is an intended recipient.

The question is not whether Congress intended the NCAA as an entity to receive Federal funds.

The question... the... and I think, Justice Scalia, you're right.

Intent is really not the right question.

The question is whether the program being operated is of the type that the Federal grant program was intended to fund.

And... and the question then is whether the... whether the program is the sort of thing that was intended to be funded.

As the Court said, the college program in Grove City was what was intended to be funded.

There's no doubt here that intercollegiate athletics are part of a college program.

The question would be whether the various Federal programs that might or might not be involved in this case... and again, there's been no exploration on that... extend funding to the whole college, including its athletic department, and then whether the payment of dues is essentially the transmittal of that Federal financial assistance.

But the question is not whether a particular entity was intended to have that... to receive that.

The regulation that we cite in our brief with respect to transferees and successors... and there's another regulation in the title IX regulations that refers to contractors... shows that aid can be passed on.

Justice Stevens: Thank you.

Justice O'Connor: Thank you, Mr. Kneedler.

Chief Justice Rehnquist: Mr. Roberts, you have 3 minutes remaining.

Justice Roberts: Thank you, Your Honor.

First, I'd like to agree with both of my brothers that the Third Circuit decision was wrong.

It was wrong because title IX, as Spending Clause legislation, is limited to recipients, and the effort to rely on the dues or some surrogate relationship severs title IX from its rooting in the Spending Clause and the limitation to recipients.

The argument that was raised that the statutory language doesn't carry any such limitation was the precise argument that was raised last term in Gebser, and it was rejected in Gebser.

If it's enough to be subject to discrimination under a program, the student in Gebser certainly was, but that was not enough because title IX is limited to recipients.

And so, the question is what does a recipient know about what was going on and what did the recipient do or not do.

Now, so far as the new alternative arguments are made, it is important to recognize that... that in our view they have not been properly preserved.

The NYSP argument, for example, was not mentioned before the district court by the plaintiff.

The court said, assuming your complaint is amended...

Justice Ginsburg: But, Mr. Roberts, given the pro se litigant, given the large discretion that the district judge has on complaint amendments, should we be the one to decide whether the amendment of the complaint is too late and given cases like Conley against Gibson where this Court has said... instructed lower courts, be generous to pro se litigants as far as amendment is concerned?

Justice Roberts: But they have to allege facts.

The way it works is you allege facts and then you test those against the legal standard...

Justice O'Connor: Well, I don't know.

Justice Ginsburg: If you look at the forms at the end of the Federal rules, is negligently drove a fact?

Is money having received a fact?

I mean, those forms are very skimpy.

Justice Roberts: And what happened is the district court said on this motion to dismiss, we have to test and see what the standards are to establish that someone is an indirect recipient.

What... what do you have in mind?

What are you talking about...

Justice Ginsburg: You could ask for a more definite statement.

They... they alleged NCAA is a Federal fund recipient.

Okay.

Usually before you cut off a plaintiff's head, you give them a chance to flesh out an allegation.

Justice Roberts: Well, and she was afforded that opportunity.

The district court basically said what is it that you're talking about when you say, and if the answer is dues, which is what the answer that was given, then that's not enough and the complaint should be dismissed.

Justice Stevens: Mr. Roberts, may I ask you what your view is on the question whether we should decide the delegation of a control over a program issue?

Justice Roberts: I think the reason the Third Circuit is wrong is because the NCAA is not a recipient.

That is an argument that would rely on extending title IX to non-recipients.

Justice Stevens: My... my... the question is whether you think we ought to decide this other theory, you know...

Justice Roberts: I think the Court should decide the question whether having so-called effective control or ceded authority is enough to subject you to coverage under title IX when you're not a recipient.

Justice Breyer: How do we get that in the question?

The question says because it receives payments from entities that do so.

It has nothing to do with receiving payments.

Control or not control or delegation would be identical whether they happen to charge dues or whether they don't charge dues.

Justice Roberts: Well, because the reason the dues are not sufficient is because you have to be a recipient which was the argument we raised, and their answer was, no, you don't.

It's enough...

Justice Breyer: That's the end of that.

You have... I'm...

Chief Justice Rehnquist: Thank you, Mr. Roberts.

Justice Roberts: Thank you.

Chief Justice Rehnquist: The case is submitted.