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Four circuit splits the Supreme Court is poised to resolve this term

10/1/26

By: Juliana Sleeper and Robert Scavone Jr.

The United States Supreme Court’s October Term 2026 begins on October 5. As in every Term, the Court’s docket spans a wide range of constitutional, statutory, and procedural issues. Several of the cases already set for argument, however, present questions that could have significant implications for civil litigants, employers, educational institutions, governmental entities, and practitioners nationwide. The Court has again agreed to resolve a number of entrenched circuit splits, including disputes over federal pleading requirements, the scope of implied causes of action, and the availability of employment-discrimination remedies under federal law. Below is a summary of four cases worth watching and why they may matter well beyond their specific factual contexts.

St. Mary Catholic Parish v. Roy, 25-581 (Tenth Circuit)

Issues presented: (1) Whether proving a lack of general applicability under Employment Division v. Smith requires showing unfettered discretion or categorical exemptions for identical secular conduct; (2) whether Carson v. Makin displaces the rule of Employment Division v. Smith only when the government explicitly excludes religious people and institutions. St. Mary’s cert petition also asked whether Smith should be overruled, but the Court did not grant cert on that issue.

Colorado’s Universal Preschool Program provides publicly funded preschool tuition assistance and is designed to allow families to use those benefits at public, private, and faith-based preschools. The dispute arose when the Archdiocese of Denver and affiliated Catholic preschools sought to participate in the program but maintained admissions policies requiring families to support the schools’ religious mission and Catholic teachings regarding marriage, family, sexual identity, and parenting. Colorado concluded those practices conflicted with statutory requirements that participating providers offer equal enrollment opportunities regardless of characteristics including religion, sexual orientation, and gender identity. As a result, the Catholic schools were excluded from the program, while parents choosing those schools were denied access to state preschool funding.

The case presents a significant question about the scope of the Free Exercise Clause in the wake of the Supreme Court’s recent religion decisions. The Petitioners argue that the case is controlled by the Court’s trilogy of school-funding decisions, culminating in Carson v. Makin, which held excluding otherwise eligible schools from a public tuition assistance program “on the basis of their religious exercise” triggers strict scrutiny. According to Petitioners, Colorado has done exactly that by conditioning participation in a universal public-benefits program on Catholic schools abandoning religious practices they consider central to their educational mission. Colorado, and the Tenth Circuit, viewed the issue differently.

The lower court concluded that Colorado had not excluded schools because they were religious but instead had imposed generally applicable participation requirements that incidentally burdened religious exercise. That distinction led the Tenth Circuit to analyze the dispute under Employment Division v. Smith rather than Carson, ultimately upholding Colorado’s position. Petitioners argue that approach improperly narrows the Court’s recent Free Exercise precedents and allows governments to accomplish indirectly what they cannot do openly.

The case also gives the Court an opportunity to further define the reach of Smith’s “general applicability” doctrine. Petitioners contend that Colorado has created numerous exceptions and enrollment preferences for secular providers, including preferences based on income, disability status, language needs, geographic considerations, and other community-based criteria, while refusing to provide comparable accommodations for religious schools. More broadly, the case sits at the intersection of two trends that have steadily occupied the Court over the last several Terms: expanding protection for religious participation in public-benefits programs and continued efforts by lower courts to apply Smith. The Court’s decision could further clarify whether governments may require religious schools to alter faith-based admissions policies as a condition of receiving generally available public funding and may provide additional guidance regarding when a regulatory scheme is sufficiently “general” to avoid strict-scrutiny review.

You can view the briefs here.

Crowther v. Board of Regents of the University System of Georgia, 25-183 (Eleventh Circuit)

Issue presented: Whether Title IX provides employees of federally funded educational institutions a private right of action to sue for sex discrimination in employment.

The case combines claims brought by former Georgia Tech women’s basketball coach MaChelle Joseph and former Augusta University professor Thomas Crowther. Joseph alleges that Georgia Tech provided inferior resources to her women’s basketball program compared to men’s athletics and later terminated her after she complained about sex-based disparities. Crowther, meanwhile, contends that Augusta University subjected him to a discriminatory Title IX investigation and terminated his employment based on sex. Although the factual circumstances differ, both cases present the same legal question: whether Title IX’s prohibition on sex discrimination may be enforced by employees through a private damages action.

The Petitioners argue that the answer follows directly from decades of Supreme Court precedent. They note that the Court has repeatedly held that Title IX creates an implied private right of action to enforce the statute’s prohibition against intentional sex discrimination and that, in North Haven Board of Education v. Bell, the Court expressly held that Title IX covers employment discrimination. According to Petitioners, once those two propositions are accepted, the conclusion is straightforward: employees who suffer intentional sex discrimination at federally funded educational institutions should be able to sue under Title IX just as students can. Petitioners further rely on Jackson v. Birmingham Board of Education, where the Supreme Court permitted a high-school coach to pursue a Title IX retaliation claim, reasoning that retaliation for reporting sex discrimination is itself a form of intentional sex discrimination prohibited by the statute. Petitioners contend that the Eleventh Circuit broke with both Supreme Court precedent and the decisions of every other federal circuit to consider the issue by holding that Title IX does not authorize employment-discrimination suits by employees.

The case has potentially significant consequences for schools, colleges, universities, and employment litigants nationwide. The Eleventh Circuit concluded that Title VII provides the exclusive vehicle for employment-discrimination claims and expressed concern about overlap between Title VII and Title IX. Petitioners respond that Congress and the Court have long permitted overlapping antidiscrimination remedies and that Title IX and Title VII differ in important respects, including administrative exhaustion requirements, available remedies, and substantive standards. If the Supreme Court reverses, employees of educational institutions may continue to pursue Title IX claims alongside Title VII claims, preserving a cause of action that courts widely recognized for decades. If the Court affirms, employment-based Title IX claims could be sharply curtailed, substantially altering the litigation landscape for educational institutions and reinforcing Title VII as the exclusive federal remedy for most employment-discrimination claims in that context.

You can view the briefs here.

Younge v. Fulton Judicial Circuit District Attorney’s Office, Georgia, 25-352 (Eleventh Circuit)

Issue presented: Where a defendant has filed an answer without pleading an affirmative defense, whether the defendant may nevertheless assert that defense as the basis for summary judgment without amending or seeking to amend its answer, including when an amendment would be barred by the Court’s Scheduling Order .

The case arises from Dr. Jasmine Younge’s pregnancy-discrimination suit against the Fulton Judicial Circuit District Attorney’s Office. Younge alleged that then-District Attorney Paul Howard began excluding her from meetings and reassigning her duties after learning she was pregnant, and terminated her two weeks later. The District Attorney’s Office answered the complaint without pleading Title VII’s “personal staff” exemption as an affirmative defense. After discovery closed and the deadline for amending pleadings had passed, however, the Office invoked that exemption in moving for summary judgment, arguing that Younge’s senior role placed her outside Title VII’s definition of an “employee.”

The district court permitted the Office to rely on the unpled defense because Younge had not shown prejudice from the delay, and it granted summary judgment after concluding that she fell within the personal-staff exemption. The Eleventh Circuit affirmed under Hassan v. U.S. Postal Service, which allows a court to consider an affirmative defense first raised at summary judgment if the plaintiff was not prejudiced. The court rejected Younge’s argument that Rules 15 and 16 required the Office to amend its answer and demonstrate good cause, explaining that Eleventh Circuit precedent treats unpled affirmative defenses differently from late motions to amend pleadings.

Younge contends that the Eleventh Circuit’s approach conflicts with the text and structure of Rules 8, 15, and 16 and with the approaches taken by other federal courts of appeals. Her petition identifies three general approaches: some circuits require the defense to be pleaded or treat the dispositive motion as a motion to amend; others permit an unpled defense only when the defendant acted diligently and the plaintiff was not prejudiced; and the Eleventh Circuit and several others focus principally on prejudice. Younge argues that allowing a defendant to avoid the amendment rules merely by raising the defense in a summary-judgment motion makes the pleading and scheduling requirements largely optional.

The case gives the Court an opportunity to resolve a longstanding circuit conflict over the interaction among Rules 8(c), 15(a), and 16(b). The decision could determine whether a defendant’s failure to plead an affirmative defense is governed by the ordinary amendment standards, including good cause after a scheduling deadline, or by a more forgiving notice-and-prejudice inquiry. The answer may affect federal civil litigation broadly because affirmative defenses can be case-dispositive and because the applicable rule influences how parties conduct discovery, enforce scheduling orders, and frame summary-judgment motions.

You can view the briefs here.

Nielsen v. Watanabe, 25-417 (Ninth Circuit)

Issue presented: Whether a federal prisoner can sue prison officials for money damages under the Biven doctrine for deliberate indifference to a non-life-threatening injury.

The case arises from injuries Kekai Watanabe sustained during a gang fight while detained at the Federal Detention Center in Honolulu. After prison officials restored order, documented his visible injuries, and placed him on sick call, Watanabe complained of headaches and pain and asked to be seen by medical staff. He later alleged that staff nurse Francis Nielsen denied his request to be taken to a hospital, although prison officials provided over-the-counter pain medication. Months later, Watanabe was diagnosed with a fractured coccyx and bone fragments in nearby soft tissue, and prison officials agreed to refer him to a specialist.

Watanabe filed suit seeking damages and injunctive relief, alleging deliberate indifference to his serious medical needs in violation of the Eighth Amendment. The district court dismissed the damages claim, concluding that it presented a new Bivens context distinct from Carlson v. Green, which recognized a damages remedy where federal prison officials allegedly failed to provide proper medical care to an inmate who later died from his injuries. The court relied on both the availability of the Bureau of Prisons’ Administrative Remedy Program and the differences between Watanabe’s nonfatal injury and the acute asthma attack that caused the inmate’s death in Carlson.

A divided Ninth Circuit panel reversed. The majority held that Watanabe’s claim did not arise in a new Bivens context because both his claim and Carlson involved alleged deliberate indifference to a prisoner’s serious medical needs. It concluded that the availability of alternative remedies did not make the context new at the first step of the Bivens analysis and that differences in the severity and immediacy of the injuries were not meaningful. The Ninth Circuit denied rehearing and rehearing en banc, with eleven judges dissenting.

Nielsen argues that the decision deepens two circuit conflicts concerning the narrow circumstances in which courts may recognize an implied damages action under Bivens. First, the circuits disagree about whether an alternative remedial structure not considered in an earlier Bivens case creates a new context. Second, they disagree about whether less severe, less immediate, or nonfatal medical harm differs meaningfully from Carlson. Nielsen contends that both differences require treating Watanabe’s claim as a new context and that separation-of-powers principles counsel against extending a judicially created damages remedy.

The case gives the Court an opportunity to clarify the continuing reach of Carlson. The decision may determine how lower courts evaluate federal prisoners’ medical-care claims against individual officers, including whether the Bureau of Prisons’ grievance process and factual differences in the nature of an inmate’s injury foreclose a Bivens remedy. Although the question presented does not expressly ask the Court to reconsider Carlson or Bivens, the Court could confine Carlson closely to its facts and provide further guidance on whether any meaningful factual difference or available alternative remedy is sufficient to foreclose a Bivens claim.

You can view the briefs here.

For more information, please contact Juliana Sleeper at juliana.sleeper@fmglaw.com or Robert Scavone Jr. at robert.scavone@fmglaw.com or your local FMG Law attorney.

Information conveyed herein should not be construed as legal advice or represent any specific or binding policy or procedure of any organization. Information provided is for educational purposes only. These materials are written in a general format and not intended to be advice applicable to any specific circumstance. Legal opinions may vary when based on subtle factual distinctions. All rights reserved. No part of this presentation may be reproduced, published or posted without the written permission of Freeman Mathis & Gary, LLP.