Law & Courts

Title IX Covers Whistleblowers, High Court Says

By Caroline Hendrie — April 05, 2005 9 min read

Teachers and coaches who suffer reprisals for complaining about illegal sex discrimination against their students will be able to sue their school districts for damages, under a ruling handed down last week by a sharply divided U.S. Supreme Court.

The 5-4 ruling held that the federal law that bars discrimination based on sex in federally financed education programs gives people the right to sue if they suffer retaliation for alleging that the law is being broken. It came in a case brought by Roderick L. Jackson, a high school girls’ basketball coach who sued the Birmingham, Ala., school district in 2001.

Roderick Jackson listens last November at a press conference about his case over whether Title IX covers retaliation claims.

Hailed by advocates as a major victory for female equality and for civil rights more broadly, the court’s March 29 ruling in Jackson v. Birmingham Board of Education (Case No. 02-1672) was seen by some experts as a new source of legal headaches for school districts.

The ruling establishes 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 report.

Both sides in the dispute agree that the decision could significantly affect the enforcement not only of Title IX, but also of laws against discrimination based on disability, age, and race or ethnicity. Yet a lawyer for the National School Boards Association, which supported the Birmingham district, said she was relieved that the decision was not more broadly written to explicitly encompass those other areas.

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Read the accompanying excerpts,

The Supreme Court on Title IX

“It’s too early to tell what the real impact of this case is going to be,” said Julie Underwood, the general counsel of the Alexandria, Va.-based NSBA. “But we’re glad the court didn’t make a broad, sweeping statement about retaliation under all the discrimination statutes.”

A lawyer for Mr. Jackson, though, said the court had affirmed the basic principle “that people cannot be punished for standing up for their rights,” a protection that “is not just critical for Title IX, but also for other bedrock civil rights laws.”

“The decision was therefore very, very important,” said Marcia D. Greenberger, the co-president of the National Women’s Law Center in Washington, which represented Mr. Jackson.

In her majority opinion, Justice Sandra Day O’Connor embraced arguments by Mr. Jackson and the Bush administration that a ruling in his favor was critical to the enforcement of Title IX. 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 in an opinion joined by Justices John Paul Stevens, David H. Souter, Ruth Bader Ginsburg, and Stephen G. Breyer.

“Indeed, if retaliation were not prohibited,” she added, “Title IX’s enforcement scheme would unravel.”

Unequal Facilities

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 whistleblowing about sex discrimination” among people not victimized by the kind of bias the law aimed to prevent.

“The question before us is only whether Title IX prohibits retaliation, not whether prohibiting it is good policy,” Justice Thomas wrote.

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

Mr. Jackson, who still teaches at Birmingham’s Ensley High School, says he started getting bad job evaluations and was eventually stripped of his coaching duties in 2001 after complaining to his superiors about unequal access to athletic equipment, facilities, and funding as well as other unfair treatment of the girls’ team.

He also argues that his own working conditions were worsened because the girls were getting shortchanged.

A U.S. District Court judge in Birmingham had dismissed his case without a trial, a decision that was upheld in 2002 by the U.S. Court of Appeals for the 11th Circuit, in Atlanta.

Justice O’Connor reasoned in her opinion that “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.”

Therefore, she concludes, the sort of retaliation that Mr. Jackson complained about was barred by Title IX and subject to redress through private lawsuits.

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.

In a Position to Know

Justice O’Connor also noted that a 30-year-old regulation of the Department of Education prohibits retaliation by recipients of federal funds under Title IX. The Bush administration had cited that rule and a corresponding one by the Department of Justice as evidence that the government has long interpreted Title IX as barring retaliation.

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.”

Justice Thomas also rejected the notion that Title IX enforcement would be undermined if teachers and coaches were not able to sue for retaliation.

“Nothing prevents students—or their parents—from complaining about inequality in facilities or treatment,” he wrote.

If the majority had sided with Justice Thomas, Mr. Jackson said after last week’s ruling, “it would have been a devastating blow to many young ladies and young men across the nation.”

“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.

But the NSBA’s Ms. Underwood said the decision gives people a new “path to the courthouse” that was unnecessary, given the other avenues available for enforcing Title IX.

Teachers and coaches with complaints such as Mr. Jackson’s are protected by the constitutional right to free speech, state and federal whistleblower statutes, and “all the protections public employees have,” including tenure and due-process rights, she argued.

Last week’s decision could spur lawsuits not only from employees, Ms. Underwood added, but also from students who might claim they were disciplined for protesting violations of 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,” she said.

What kind of help employees or others can expect if they report alleged violations of Title IX to the Department of Education’s office for civil rights was a major point of contention when the high court heard oral arguments in the Jackson case last December.

Reiterating some of the arguments debated then, Ms. Greenberger of the National Women’s Law Center contended last week that the office has a “very spotty record” of investigating complaints of sex discrimination in schools.

Because the OCR has often been “missing in action,” she said, people such as Mr. Jackson need legal recourse under Title IX. Mr. Jackson said he had heard of the office but did not pursue that route because he didn’t know anyone who had gotten relief that way.

“If the courthouse door had been slammed to Mr. Jackson, there would have been no real remedy for him,” Ms. Greenberger said.

A spokeswoman for the Education Department dismissed Ms. Greenberger’s comments as “just more special-interest misrepresentation of the facts.”

The OCR has opened “well over 1,000 complaints” alleging violations of Title IX since Jan. 1, 2002, said department spokeswoman Susan Aspey. “All in all, we investigate a significant amount of Title IX cases every year,” she said.

Back to Birmingham

For Mr. Jackson, the Supreme Court’s ruling means that his case goes back to where it started, the federal district court in Birmingham.

Should the case get to trial, both he and his lawyers say they can marshal plenty of evidence to show not only that he was retaliated against, but also that Ensley High’s female basketball players faced illegal discrimination.

For example, Mr. Jackson contends that the girls’ team received no money from ticket sales and had to practice in an unheated gym built in 1908, while the boys’ basketball team practiced in a new gym and got to keep proceeds from the gate. The boys were also 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.

Since launching his lawsuit, Mr. Jackson has been reinstated as “interim coach” of the girls’ basketball program at Ensley High. A tenured teacher at the school, he also teaches health classes for freshmen.

Mr. Jackson said last week that some of the unfair conditions faced by his female athletes had been rectified after “the local and national media got involved.” For example, he said, the girls and boys now take turns practicing on the school’s heated, regulation-size court.

But without being specific, he said that some inequities remain. And he says he suffered a loss in his pay and pension benefits while sidelined from coaching, as well as damage to his reputation.

Meanwhile, a lawyer for the 32,000-student school district said last week that he had been surprised and disappointed by the high court’s ruling, but predicted that the school system would prevail should the case proceed to trial.

“The school board does not have a policy of treating girls’ and boys’ sports teams differently,” said Kenneth L. Thomas, the district’s lawyer. “There had never been any disparity between the girls’ and boys’ programs at Ensley. That’s been our position since day one.”

But Mr. Thomas also said that he expected both sides in the case to entertain an out-of-court settlement.

“As the case makes it way back to Birmingham,” he said, “both sides will look at what their options are.”


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