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Published in Print: October 6, 2004, as Court to Weigh Title IX Case In New Term

Court to Weigh Title IX Case In New Term

Justices Could Add Review of Ten Commandments Cases

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As the U.S. Supreme Court reconvenes this week after a three-month summer recess, the justices have one closely watched education case on their docket and may well take up others in the coming months.

Last spring, the court agreed to hear an appeal brought by a girls’ basketball coach at an Alabama high school who claims he was retaliated against after complaining that the team was treated less favorably than the boys’ squad.

The Bush administration has lined up behind the coach, Roderick L. Jackson, and urged the justices in court papers to overturn a ruling against him by a federal appeals court in Atlanta.

At issue in Jackson v. Birmingham Board of Education (Case No. 02-1672) is whether plaintiffs alleging violations of Title IX of the Education Amendments of 1972 can sue for retaliation if they were not the original victims of the alleged discrimination. Those arguing yes include the National Education Association, which says that teachers and coaches are often the best watchdogs for illegal sex-based discrimination in schools, not only in athletics but also in such areas as sexual harassment.

The 34,500-student Birmingham district contends that if Congress had meant to allow third parties to sue for retaliation under Title IX, it would have said so in the law. The U.S. Court of Appeals for the 11th Circuit, in Atlanta, took that view in ruling for the district in 2002.

Siding with the district are the National School Boards Association and the American Association of School Administrators. Naomi E. Gittins, a senior staff lawyer for the NSBA, said her organization is concerned that a ruling for Mr. Jackson would not only give rise to more Title IX cases, but would also "make more people see an implied right" to sue school districts over other issues as well.

The Title IX case is scheduled for oral arguments on Nov. 30.

Clash Over Commandments

In the church-state realm, word could come as early as this week on whether the justices are willing to take up one or more cases about displays of the Ten Commandments in public schools and on other government property.

A ten commandments monument is removed from a school in West Union, Ohio.
A Ten Commandments monument is removed from a school in West Union, Ohio, in June 2003. An appeal in the dispute is pending before the U.S. Supreme Court.
—File photo by Al Behrman/AP

The high court in 1980 struck down a Kentucky law that required public school displays of the commandments, but some legal analysts believe recent twists on Ten Commandments displays, and contradictory legal rulings about them, make the issue ripe for fresh consideration.

Last week, the court met privately to consider hundreds of appeals that piled up over the summer, including several involving displays of the commandments.

Among them was Harlan County, Ky. v. ACLU of Kentucky (No. 03-1698), a dispute over the posting of the commandments in the Harlan County public schools in Kentucky. The 5,300- student district put the commandments on view in classrooms in 1999, prompting a lawsuit from the Kentucky chapter of the American Civil Liberties Union.

Since then, the district has twice modified its displays to add other historical documents. Still, the U.S. Court of Appeals for the 6th Circuit, in Cincinnati, held last year that the displays were an unconstitutional government endorsement of religion.

In Ohio, stone monuments of the Ten Commandments donated by a group of ministers were put up in 1997 outside four public high schools in Adams County, also prompting a lawsuit backed by the ACLU. In Adams County/Ohio Valley School Board v. Baker (No. 04- 65), the 5,100-student district has asked the high court to overturn a January ruling by the 6th Circuit court. The ministers have made a similar appeal in Johnson v. Baker (No. 03-1661).

The Ohio cases were not among the appeals that the justices considered last week, but will likely be taken up for consideration sometime this fall.

Retirements Coming?

After a decade of stability on the court, some speculate that the presidential election might be the catalyst for at least one retirement among the justices.

The last personnel change on the court came in 1994, with President Bill Clinton’s appointment of Justice Stephen G. Breyer. Chief Justice William H. Rehnquist, the court’s longest-serving jurist, turned 80 last week, while Justice John Paul Stevens is 84, and Justice Sandra Day O’Connor is 74.

At a preview last week of the new court term, Georgetown University law professors said the low turnover on the court in recent years had been unexpected.

"I am very surprised that we have not seen a retirement in the last four years," said Viet Dinh, a Georgetown professor who formerly served as a law clerk to Justice O’Connor.

A retirement or two could tilt the balance on education issues, given that the court has been closely divided on many school-related cases in recent years. Matters of religion and public education constantly percolate in the federal courts, for example, and the justices have often split narrowly on such issues.

Vol. 24, Issue 06, Pages 23,25

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