Law & Courts

Supreme Court Backs Suits for Retaliation Under Title IX

By Caroline Hendrie — March 29, 2005 5 min read
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In a decision hailed by advocates as “a huge win” for women’s rights, the U.S. Supreme Court has ruled 5-4 that a high school girls’ basketball coach could sue his Alabama school district for allegedly retaliating against him after he complained that his female athletes were treated unfairly compared with the boys’ team.

The court held in its March 29 ruling that the private right to sue under Title IX of the Education Amendments of 1972 extends to claims of retaliation for complaints about violations of the statute, even if the plaintiffs are not the direct victims of the sex discrimination they complain about.

Both sides in the dispute agree that the decision could have a significant impact on the enforcement not only of Title IX, but also of laws against discrimination based on disability, age, and race or ethnicity.

Roderick L. Jackson, a physical education teacher who said the Birmingham, Ala., school system fired him from his coaching job in 2001 after he complained that his girls’ team was getting shortchanged, now will have the chance to make his case in a federal district court. A U.S. District Court judge in Birmingham had dismissed his case without a trial, a decision that was upheld by the U.S. Court of Appeals for the 11th Circuit, in Atlanta.

Justice Sandra Day O’Connor wrote in the majority opinion in Jackson v. Birmingham Board of Education (Case No. 02-1672) that a ruling against Mr. Jackson could have crippled enforcement of Title IX, which prohibits discrimination on the basis of sex in federally financed education programs. The law has been widely used to press for the expansion of opportunities for girls to participate in sports and other programs in schools nationwide.

“Reporting incidents of discrimination is integral to Title IX enforcement and would be discouraged if retaliation against those who report went unpunished,” Justice O’Connor wrote, embracing a position that the Bush administration had backed Mr. Jackson in advancing. “Indeed, if retaliation were not prohibited, Title IX’s enforcement scheme would unravel.”

She was joined by Justices John Paul Stevens, David H. Souter, Ruth Bader Ginsburg, and Stephen G. Breyer.

In a dissent, Justice Clarence Thomas said the high court was overreaching by reading a right into the law that Congress clearly chose to leave out. The majority’s ruling, Justice Thomas said, was “designed to encourage whistle-blowing about sex discrimination” among people not victimized by the kind of bias the law aimed to prevent.

His dissent was joined by Chief Justice William H. Rehnquist and Justices Antonin Scalia and Anthony M. Kennedy.

‘New Path to the Courthouse’?

Mr. Jackson hailed the ruling as “a win-win situation for schools and students.”

“When people know they are protected against retaliation, people like my students and myself will be more willing to come forward when there’s a problem,” the 39-year-old coach said in a teleconference with reporters following the decision.

His lawyer, Marcia D. Greenberger of the National Women’s Law Center in Washington, said that “if the decision had gone the other way, it would have given a license to punish people who came forward to complain about illegal discrimination.”

Calling the decision “a huge win for women and girls” and “a great victory for giving life and meaning to Title IX,” Ms. Greenberger, who is co-president of the center, argued that the ruling would actually help school districts by ensuring that people are not intimidated into keeping quiet about problems of discrimination.

But the top lawyer for the National School Boards Association, which had urged the court to rule against Mr. Jackson, said the opinion gives people a new “path to the courthouse” that was unnecessary, given the other avenues available for enforcing Title IX.

“It just provides one more hoop that school districts are going to have to go through to protect themselves against complaints of retaliation,” said Julie Underwood, the general counsel of the NSBA, which is based in Alexandria, Va.

Ms. Underwood said the association supports Title IX and gender equality, but believes that people with complaints such as Mr. Jackson’s have plenty of other protections. Besides the constitutional right to free speech, she cited state and federal whistle-blower statutes and “all the protections public employees have,” including tenure and due-process rights.

In a Position to Know

Justice O’Connor reasoned in her opinion that the sort of retaliation that Mr. Jackson complained about was barred by Title IX and subject to redress through private lawsuits because “when a funding recipient retaliates against a person because he complains of sex discrimination, this constitutes intentional ‘discrimination’ ‘on the basis of sex.’ ”

Moreover, she wrote, “[t]he complainant is himself a victim of discriminatory retaliation, regardless of whether he was the subject of the original complaint.”

Echoing an argument advanced by Mr. Jackson’s lawyers, Justice O’Connor said that “teachers and coaches such as Jackson are often in the best position to vindicate the rights of their students because they are better able to identify discrimination and bring it to the attention of administrators.”

Even though Title IX does not expressly prohibit retaliation, as some federal anti-discrimination laws do, she said that school districts have been on notice for decades that such conduct was out of bounds. She said such notice came, among other forms, from earlier cases in which the Supreme Court extended the right to sue under Title IX to victims of sexual harassment, even though the statute does not specifically mention that offense.

But Justice Thomas said Title IX clearly should not cover cases like Mr. Jackson’s. “A claim of retaliation is not a claim of discrimination on the basis of sex,” he wrote.

“Because Jackson’s claim for retaliation is not a claim that his sex played a role in his adverse treatment, the statute’s plain terms do not encompass it,” the dissent added.

Justice Thomas also rejected the notion that Title IX enforcement would be undermined if teachers and coaches were not able to sue if they were retaliated against for complaining about sex discrimination against their students: “Nothing prevents students—or their parents—from complaining about inequality in facilities or treatment.”

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