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Published in Print: November 24, 2004, as High Court to Weigh Coach’s Title IX Case

High Court to Weigh Coach’s Title IX Case

Justices Must Decide Whether Law Allows Claims for Retaliation

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To Roderick L. Jackson, winning his case at the U.S. Supreme Court would be vindication for standing up for what he believes. To the broader education community, the case is about much more.

A self-described shy guy, the 39-year-old physical education teacher from Birmingham, Ala., is at the center of a dispute that has leading education groups lined up on opposite sides. At issue is whether teachers or coaches who suffer reprisals for complaining about violations of the federal law barring sex discrimination in education programs have a right to seek redress in court.

The outcome of the case could have ripple effects well beyond the athletic arena, and even beyond the area of sex discrimination in schools. Retaliation claims involving laws against bias based on race, disability, and age could all be affected, lawyers in both camps say.

As the Nov. 30oral arguments in Jackson v. Birmingham Board of Education (Case No. 02-1672) approach, the National Education Association and the National School Boards Association are among the groups that have weighed in with friend-of-the-court briefs in the case.

A ruling against Mr. Jackson would “eviscerate” federal anti-discrimination laws, Michael D. Simpson, the NEA’s assistant general counsel, said in a recent interview.

“Frankly, it’s a fairly widespread problem,” he said of retaliation against school employees who complain about various kinds of discrimination against their students. “If you can be punished for complaining, then violations will never come to light.”

But the district and its allies say that allowing lawsuits in retaliation cases is entirely unnecessary, given all the other legal and administrative safeguards available to school employees in such circumstances.

“You don’t have to pave a new path to the courthouse, because school employees have lots of avenues or protections they can use,” said Julie Underwood, the general counsel of the NSBA. “In this one, even if he could get redress, it would not benefit the students.”

Labeled a Rabble-Rouser

Leaders of the 32,000-student Birmingham school district have kept a low profile, referring all questions about the case to their lawyers.

Mr. Jackson, by contrast, has been less reticent about stating his case. At a press conference here this month at the offices of the National Women’s Law Center, which now represents him, Mr. Jackson said he hasn’t enjoyed being branded a “rabble-rouser, troublemaker, and … whistle-blower.”

But he said he felt compelled by a sense of fairness to complain to his superiors about conditions that hurt girls on his team at Birmingham’s Ensley High School, where he was hired as head girls’ basketball coach in the summer of 1999.

“It was very important that the young ladies receive the same educational opportunities as the young men,” he said. “I believe they are equal.”

Lawyers for the district dispute both that the girls’ team was treated unfairly and that Mr. Jackson suffered retaliation for his complaints. But because the legal argument focuses on whether the lower courts were right to dismiss the case without a trial, the high court will assume for the sake of argument that Mr. Jackson’s version of events is accurate.

Roderick L. Jackson
Roderick L. Jackson was dismissed as coach of the girls' basketball team at Ensley High School in Birmingham, Ala., after he complained of unequal conditions compared with the boys' team. His Title IX case goes before the U.S. Supreme Court next week.
—Allison Shelley/Education Week

In the fall and spring of the 2000-01 school year, Mr. Jackson repeatedly complained, he says, that his players were getting shortchanged compared with the boys’ teams.

For example, the girls’ team recieved no money from ticket sales and had to practice in an unheated gym built in 1908, Mr. Jackson says, while the boys practiced in a new gym and got to keep proceeds from the gate. The boys were allowed a junior-varsity squad while the girls were not, he says, and the girls had to find their own rides to away games rather than travel on a school-provided bus, as the boys did. Access to such basic facilities as the school ice machine was denied to the girls’ team, he adds, forcing him to break into the machine once when a player from an opposing team got injured during a game.

A veteran of the U.S. Army Reserve, Mr. Jackson said he took his concerns “up the chain of command,” from the school athletic director, to the principal, to the district athletic director, and finally to an assistant superintendent. But instead of improvements, he said, he started getting bad job evaluations and was warned to keep quiet.

Then, in May 2001, he was stripped of his coaching duties and the extra income they brought, although as a tenured teacher, he kept his teaching post. Receiving a certified letter at home telling him he was sacked as coach, he recalled, was “a devastating feeling.”

A few months after his firing, Mr. Jackson hired a private lawyer and sued in federal court. After his case was summarily dismissed in early 2002, he ended up representing himself before a three-judge panel of the U.S. Court of Appeals for the 11th Circuit, only to lose once more. The appellate ruling brought his case to the attention of the National Women’s Law Center, which began representing him shortly afterward.

Not Discrimination

The problem, the appeals court held in October 2002, was that the federal law Mr. Jackson sued under, Title IX of the Education Amendments of 1972, doesn’t mention a right to sue over alleged retaliation suffered by those complaining about violations. Neither does it protect complainants who aren’t direct victims of the discrimination targeted by the law, the court found.

Mr. Jackson’s lawyers, backed by the Bush administration, say that a right to sue over retaliation is implied in Title IX, which forbids sex discrimination in education programs receiving federal money. Besides, they argue, he was more than an “indirect” victim of discrimination, as the 11th Circuit court held.

“It’s very unfair and arbitrary to say that he didn’t suffer along with the team,” said Marcia D. Greenberger, the co-president of the National Women’s Law Center, based in Washington.

But the Birmingham district argues in its Supreme Court brief that “being punished for speaking out on an issue regarding sex is not the same as being discriminated against on the basis of one’s sex, particularly where the complainer’s sex is not at issue.”

That argument is seconded by the state of Alabama in a brief joined by eight other states. “Assuming the truth of the facts stated in the complaint, what happened to Jackson was wrong; it was unjustified—but it was not ‘discrimination,’ ” it says.

Furthermore, Congress has expressly prohibited retaliation in other anti-discrimination statutes, the states’ brief says, and could have done the same with Title IX if it had so desired. Mr. Jackson is wrongly trying to push the high court to go beyond its own precedents in two important ways, the brief adds, “by expanding the scope of Title IX’s implied right of action from core discrimination to include retaliation claims … [and] by extending the class of plaintiffs who may sue on that cause of action beyond direct victims who are Title IX’s ‘unmistakable focus.’ ”

‘The Right Thing’

If the high court agrees with Mr. Jackson, school districts could be faced with a torrent of costly lawsuits, argues the NSBA in a friend-of-the-court brief.

The NSBA argues that a win for Mr. Jackson would not only spur more Title IX cases, but also would encourage more employees to “don the mantle of champion” of all manner of protected groups.

Yet in its own brief, the NEA argues that teachers and coaches can often spot illegal discrimination better than the students who are victimized by it.

Educators’ careers are often entwined with the success of school programs, and they are well acquainted with how they operate, the brief says. Students, by contrast, are only passing through and may feel they have little to gain by complaining, says the brief, which was joined by various coaches’ organizations and the Washington-based American Association of University Professors.

Educators are particularly valuable in bringing sexual harassment to light, the brief contends, given the reluctance of victims to report such mistreatment.

But the NSBA counters that parents are quick to pounce if their children are shortchanged, and that “children are more than able to voice their perceptions of unfair treatment from an early age.”

“Children do not need to know detailed information about the differences in budget allocations between similarly situated teams to recognize that their school has stuck them with lousy uniforms, inadequate practice facilities, and a third-rate coach,” the NSBA brief says.

Back in Birmingham, a new principal has come to Ensley High since Mr. Jackson’s firing as coach 3½ years ago, and the district’s superintendency and school board have changed hands. Amid that turnover, officials tapped Mr. Jackson in the fall of 2003 to coach the girls’ basketball team once again, albeit in an acting capacity.

As he prepares for the upcoming season, Mr. Jackson says one of his former players recently remarked in the grocery store that she was proud that he had “stood up for the girls.”

“That really told me it was the right thing to do,” he said.

Vol. 24, Issue 13, Pages 25,28

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