Title IX claims; 20 USC § 1681(a); “Person in the United States”; Effect of a U.S. citizen living abroad at the time of the alleged discrimination; Trump v Barbara; Mullin v Al Otro Lado; Official-capacity equal-protection claims; Sovereign immunity; Impermissible burden on a state treasury; Instatement distinguished from reinstatement; Whether the requested injunction was inconsistent with history & tradition; Novel application of Ex parte Young; Personal-capacity equal-protection claims; Qualified immunity

In an issue of first impression in this circuit, the court held that “Title IX protects only persons in the United States” and thus, a U.S. “citizen living abroad at the time of the alleged discrimination” cannot claim its protection. It also held that sovereign and qualified immunities barred plaintiff's equal-protection claims. Thus, it affirmed summary judgment for defendants. While plaintiff (a white male and a U.S. citizen) was living in the United Kingdom, he applied for an assistant professor position at defendant-University of Cincinnati. “A faculty panel recommended him for the position, but after consternation about his gender and an alleged conflict of interest, the University cancelled the job search.” He sued it and two of its administrators, asserting Title IX and equal protection claims. As to the former, the court noted “Title IX states that ‘[n]o person in the United States shall, on the basis of sex, be excluded from participation in, be denied the benefits of, or be subjected to discrimination under any education program or activity receiving Federal financial assistance . . . .’” It concluded that “the ordinary meaning of ‘person in the United States’ is a person physically located within United States territory.” The court noted that in recent examinations of language similar to that in Title IX, the Supreme Court “found that being ‘in the United States’ referred to physical presence in United States territory.” In addition, the court determined that the “usage of the phrase ‘person in the United States’ in other statutes is also consistent with this interpretation.” As to his official-capacity equal-protection claims, the court concluded they were barred “because (1) instatement is an impermissible burden on the state treasury, and (2) a suit in equity for an instatement injunction is too far removed from the suits in equity that could have been brought against a State at the Founding.” It found that history and tradition counselled against extending its “reinstatement jurisprudence to instatement actions.” Finally, it held that the individual defendants were entitled to qualified immunity on plaintiff’s individual-capacity equal-protection claims because he failed to carry “his burden of providing caselaw clearly establishing the constitutional right at issue.”