Law & Courts

Justices Hear Case on Title IX Retaliation

By Caroline Hendrie — December 07, 2004 6 min read
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Exploring just how far the federal law that prohibits sex discrimination in education extends, the U.S. Supreme Court was clearly divided last week as it heard arguments in an appeal brought by an Alabama high school coach who says he was retaliated against after complaining that his female basketball players were getting shortchanged.

Roderick L. Jackson, a physical education teacher, contends he lost his coaching position at a Birmingham high school after complaining about funding and facilities disparities between the boys’ and girls’ basketball teams.

At issue during the spirited, hourlong session on Nov. 30 was whether courts should consider retaliation lawsuits brought under Title IX of the Education Amendments of 1972, which prohibits discrimination “on the basis of sex” in federally financed education programs.

Kevin C. Newson, Alabama's solicitor general, speaks outside the U.S. Supreme Court

Arguing that Congress never meant to allow private lawsuits in Title IX retaliation cases like Mr. Jackson’s, lawyers for the Birmingham district and the state of Alabama told the high court that such claims can be effectively resolved by filing complaints with the federal Department of Education’s office for civil rights.

But lawyers for Mr. Jackson and the Bush administration said the courthouse door should indeed be open, in part because the OCR, with limited resources, could not be counted on to set matters right every time such a case crops up.

“That process is not responsive to the individual case,” said Walter Dellinger, a former acting U.S. solicitor general under President Clinton who argued Mr. Jackson’s case.

Enforcement Questioned

Several of the eight justices present for the arguments in Jackson v. Birmingham Board of Education (Case No. 02-1672) seemed to tilt in favor of Mr. Jackson’s arguments that two lower federal courts were wrong to throw out his lawsuit. Others voiced open skepticism, though, while the views of some were hard to discern.

Justice Clarence Thomas, who briefly headed the Education Department’s civil rights office during the Reagan administration, did not ask any questions during the arguments.

Chief Justice William H. Rehnquist, who is being treated for thyroid cancer, was not present. But the court announced that he intends to participate in the case by reading the briefs and transcripts.

Most openly sympathetic toward Mr. Jackson’s case was Justice Ruth Bader Ginsburg, who suggested in her questioning that private lawsuits by teachers and coaches were pivotal in enforcing Title IX. Barring such suits, she said, would render Title IX “a statute on paper.”

She also suggested that the OCR was too “strapped for resources” to be relied on to deter and remedy the kind of reprisals that Mr. Jackson says he suffered. Prompted by her questioning, Irving L. Gornstein, an assistant U.S. solicitor general arguing on the coach’s side, said the Education Department had never actually withheld money from a district or college because of noncompliance with Title IX, the penalty the law provides for violations.

“How many times do they say, that’s a low priority for us—girls’ basketball, girls’ soccer—we have bigger fish to fry?” Justice Ginsburg later asked Kenneth L. Thomas, a Birmingham lawyer representing the 32,000-student district.

But Mr. Thomas, who kicked off his 20 minutes before the justices by referring to his personal experience with “overreaching” OCR investigations, insisted that the agency was up to the task of ensuring that school districts comply with Title IX.

“We know about OCR,” he said. “When they come, they come.”

Those arguments seemed to go over well with Justices Antonin Scalia and Anthony M. Kennedy, both of whom expressed doubts about arguments advanced by Mr. Jackson’s lawyers.

While questioning Mr. Dellinger, Justice Scalia suggested that the threat of a cutoff of federal funding gave the OCR an “overwhelmingly effective” tool for ensuring compliance with Title IX, even in retaliation cases. The civil rights office, he said, could “tell the school you either rehire the coach or we’ll cut off your funds.”

Picking up on that point, Alabama Solicitor General Kevin C. Newsom told the court that the OCR does not limit itself to the sanction of withholding funding when it finds districts in violation of Title IX, but instead “uses any remedy it deems necessary.” Rejecting suggestions by Justice Ginsburg that Title IX was a toothless tiger unless knowledgeable adults like teachers and coaches could sue, Mr. Newsom said he could assure the court that the OCR enforcement process “is far from a dead letter.”

Law’s Scope Debated

When the U.S. Court of Appeals for the 11th Circuit decided in 2002 that Mr. Jackson had no case, that court pointed to the absence in Title IX of any mention of retaliation.

Even though Education Department regulations explicitly forbid retaliation against people who complain about violations of Title IX, the appeals court found that those rules were not enough to give such complainants the right to sue. It based its decision in large part on a ruling three years ago, in Alexander v. Sandoval, in which the Supreme Court threw out a civil rights case because the statute in question did not bar the kind of nonintentional discrimination the plaintiffs were claiming even though a federal regulation did.

Outside the U.S. Supreme Court after the Title IX arguments.

The right of private individuals to sue over violations of Title IX was established in the Supreme Court’s 1979 ruling in Cannon v. University of Chicago, Mr. Dellinger said, so a ruling in Mr. Jackson’s favor would merely “confirm a right” that the court has already recognized.

He argued that Title IX extends to those who are retaliated against because they have complained about that kind of bias, and not just those who were the initial victims of the discriminatory conduct.

Justice Scalia said Congress had considered discrimination and retaliation “sufficiently separate” that it had explicitly barred retaliation in some statutes, such as Title VII of the Civil Rights Act of 1964, the main federal law prohibiting racial and ethnic bias in employment. In skeptical tones, Justice Scalia asked Mr. Dellinger whether he thought it was reasonable to argue that Mr. Jackson himself had been discriminated against on the basis of sex.

“Absolutely,” Mr. Dellinger replied. “But for the discrimination on the basis of sex, he would not have complained. And had he not complained … he would not have lost his position.”

Seconding that view was Mr. Gornstein, the Bush administration lawyer. “Retaliation is itself discrimination within the meaning of Title IX,” he said.

Giving teachers and coaches the right to sue if they suffer reprisals for complaining about discrimination against their students “is of vital importance to enforcing this act,” he said.

Not the Last Word

Mr. Jackson has kept his tenured teaching post throughout his court fight with the district, and in the fall of 2003 he was returned in an acting capacity to his old coaching position.

Following the arguments last week, Mr. Jackson said he had sued after the district took away his coaching responsibilities in 2001 because “I felt to turn my back on the discrimination I observed would be to participate in it.”

While he had heard of the OCR, he said, he “never knew anyone who went through that channel or got any results through going through that process.”

Mr. Thomas, the Birmingham district’s lawyer, reiterated outside the high court that the district “unequivocally” denies that it retaliated against Mr. Jackson.

Birmingham schools Superintendent Wayman B. Shiver Jr. said the district had given Mr. Jackson his coaching job back because he was the only candidate for it at the time. If Mr. Jackson should prevail in court, Mr. Shiver said, the district “would lose part of our ability to manage the system.”

For the purposes of argument, the Supreme Court assumed that Mr. Jackson’s version of events was accurate. Should he win at the high court level, he would have the go-ahead to press his claims in the lower courts. A decision in the case is expected by the end of the court’s term next June.

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