May 09, 2005

With Justice Sandra Day O'Connor casting the deciding vote, the Supreme Court this spring decided that Title IX's "implied private right of action", plucked from thin air by earlier courts to provide a basis for private sex discrimination suits, should be extended (again from thin air) to create a new right to sue over being retaliated against by an employer for backing claims of sex bias. At the Ex Post blog (Columbia Federalist Society), posters Erasmus and Publius discuss whether this portends a revitalization of the implied-rights device, which has been in relative disfavor at the Court for a while. At ACSBlog, predictably, the view of the new decision is rather more enthusiastic.