The Sixth Circuit Court of Appeals (which includes Tennessee) addressed an issue of first impression last week: whether Title IX protects only individuals located in the United States. Charlton-Perkins v. Univ. of Cincinnati involved an American citizen who was living in the United Kingdom when he applied for an assistant professor position at the University of Cincinnati. A faculty search committee ranked him as the top candidate after interviews, but some faculty raised concerns about two issues: (1) his gender and race in relation to departmental diversity goals and (2) a perceived conflict of interest because the search committee chair had prior professional ties with him.
University administrators ultimately canceled the search rather than hire him or another candidate. When the department head later told the search committee that he and the dean wanted to move away from that candidate and “focus on the women candidates,” the committee chair objected that doing so would be “plain discrimination.” The applicant then sued the university under Title IX and sued two administrators under the Equal Protection Clause through Section 1983, seeking instatement and damages.
The Sixth Circuit affirmed summary judgment in favor of the defendants. On the Title IX claim, the court held that Title IX protects only a “person in the United States,” and because the plaintiff lived abroad when the alleged discrimination occurred and when he learned of it, he was not covered by Title IX. The court relied on the ordinary geographic meaning of “in the United States” and Spending Clause clear-statement principles.
On the official-capacity equal protection claims, the court held that sovereign immunity barred the requested relief. Charlton-Perkins sought instatement into a position that had never been filled and no longer existed. The Sixth Circuit distinguished reinstatement from instatement, reasoning that it would require the state to create and fund a new position, imposing a direct burden on the state treasury. The court also concluded that this type of injunction was not consistent with traditional equitable remedies available against states.
On the individual-capacity equal protection claims, the Sixth Circuit held that the administrators were entitled to qualified immunity. The plaintiff did not identify clearly established law showing that canceling an entire faculty search under these circumstances violated equal protection. The court rejected the argument that this was an “obvious” constitutional violation, emphasizing the unusual facts, the conflict-of-interest concerns, and the absence of controlling precedent.
Key Takeaways
1. Title IX coverage may turn on the plaintiff’s physical location. For applicants or employees located abroad, this decision limits Title IX protection where the alleged discriminatory decision occurs while the person is outside the United States.
2. Diversity-related hiring discussions can create litigation risk. Comments suggesting that a candidate should be disfavored because of sex, race, or lack of contribution to diversity may become central evidence in discrimination litigation, even if other legitimate concerns also exist. While other factors impacted the application of Title IX, had the plaintiff been in the United States, the outcome may have been different.
3. Conflict-of-interest concerns should be addressed early and consistently. The university’s reliance on perceived conflict concerns was complicated by contemporaneous comments about gender balance.
4. Canceling a search is not risk-free, but may affect available remedies. The court held that ordering instatement into a never-filled position would directly burden the state treasury and was barred by sovereign immunity, making cancelation different from ordinary reinstatement cases.
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