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Published in Print: September 8, 2004, as Bush Administration Backs Broad Reach for Title IX

Bush Administration Backs Broad Reach for Title IX

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In a case that is making for strange political bedfellows, the Bush administration is urging the U.S. Supreme Court to declare that teachers or coaches have a right to sue if they believe they have been retaliated against for complaining about alleged sex discrimination in schools.

Government lawyers argue in legal papers submitted last month that lower courts were wrong to throw out a lawsuit by Roderick L. Jackson, 39, a girls' basketball coach who alleges that he was stripped of his coaching duties at a public high school in Birmingham, Ala., after complaining that his athletes were shortchanged compared with the boys' team.

Echoing a point advanced by Mr. Jackson's lawyers, who also submitted written arguments to the high court on Aug. 19, the administration contends in its friend-of-the-court brief that effective enforcement of Title IX of the Education Amendments of 1972 hinges on a favorable ruling by the court. Title IX prohibits discrimination on the basis of sex in any schools or educational programs that receive federal money.

"Before an enforcement action may be brought against a recipient by either a federal agency or a private individual, an official of the recipient with authority to correct the discrimination must receive 'actual notice' of the discrimination," says the brief, which was written by acting Solicitor General Paul D. Clement and also signed by the Department of Education's general counsel. "The statutory scheme can work as intended only if persons feel secure in reporting discrimination when they believe it exists."

Although Title IX does not explicitly prohibit retaliation, both the Education Department and the Department of Justice have adopted regulations stating that the anti-discrimination ban covers such cases.

NEA Weighs In

The administration's filing was among seven friend-of-the-court briefs sub mitted in support of Mr. Jackson in Jackson v. Birmingham Board of Education (Case No. 02-1672).

Also backing the coach was the National Education Association, which is often at odds politically with the Bush administration, as well as the Leadership Conference on Civil Rights, a Washington-based group that has criticized the administration's enforcement of federal civil rights laws.

Coaches and educators play a critical role in identifying violations of Title IX, both in the athletic arena and in such areas as sexual harassment, according to the nea brief, which was joined by the American Association of University Professors and four coaches' associations. Educators have been fired and even physically threatened after lodging complaints about sex discrimination, it adds.

"The unique ability of educators to witness and report Title IX violations is potentially countered by a unique vulnerability to retaliation by the educational institutions for which they work, which have the authority and ability not only to dismiss an educator from employment but to effectively end his or her career by doing so," the brief argues.

The 34,500-student Birmingham district and its allies in the case are due to submit written arguments early next month.

Vol. 24, Issue 2, Page 32

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