Justices Asked to Broaden Anti-Bias Law
Christine M. Garton, Legal Times
06-09-2004

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Title IX is best known for its impact in achieving gender equality in college athletics. But its scope goes beyond athletics to cover gender discrimination in all kinds of federally assisted education programs and activities.

A women's rights group, joined by the U.S. Department of Justice, is asking the U.S. Supreme Court to review a case that could expand Title IX even further to protect those who complain about gender bias but are not victims themselves.

On Thursday during its private conference, the Court is scheduled to consider whether to grant review in dozens of cases including Jackson v. Birmingham Board of Education, No. 02-1672, which was first filed more than a year ago. At issue is whether Title IX allows a private right of action for someone who suffered reprisals for complaining about unlawful sex discrimination.

The petition was filed by the National Women's Law Center on behalf of Roderick Jackson, a girls' high school basketball coach in Alabama. He sued the Birmingham Board of Education, alleging that he was removed in 2001 from his coaching position in retaliation for complaining that his team was being denied equal funding and equal access to sports facilities and equipment.

His case was dismissed at the district court level for failure to state a claim, with the judge finding that Title IX does not prohibit retaliation. Jackson appealed, but the 11th U.S. Circuit Court of Appeals agreed with the lower court. Judge Stanley Marcus delivered the 11th Circuit's unanimous opinion, basing most of the court's judgment on the Supreme Court's 2001 ruling in Alexander v. Sandoval. That ruling held that Title VI of the Civil Rights Act of 1964 -- which prohibits discrimination by recipients of federal aid -- does not provide an implied cause of action for cases of disparate impact.

The appeals panel reasoned that under Sandoval, the Supreme Court would not possibly entertain a private claim of illegal retaliation under Title IX. The 11th Circuit opinion states also that in the absence of explicit statutory language, Congress did not intend Title IX to cover such cases of retaliation.

Marcia Greenberger, co-president of the NWLC, filed the petition on behalf Jackson and has been joined in the case by former acting Solicitor General Walter Dellinger III, now with the Washington, D.C. office of O'Melveny & Myers.

In October, the Court asked the solicitor general to state the government's views on the case. In a brief filed last month, Solicitor General Theodore Olson agreed with the NWLC, urging the Court to review the case and to ultimately decide in Jackson's favor.

Title IX, which bans gender discrimination, does not specify what types of behavior constitute unlawful discrimination. As a result, lower courts have had to determine what categories of discrimination are within the scope of Title IX and are therefore prohibited.

In the 1979 case Cannon v. University of Chicago, the Supreme Court found that although Title IX does not explicitly allow a private right of action, such a right is implicit for direct victims of gender discrimination. Otherwise, the Court reasoned, individual citizens would be without "effective protection" against practices made unlawful by Title IX.

But the Court has yet to rule on whether retaliatory conduct falls into the category of practices prohibited by Title IX or whether the law was intended to cover individuals who were not direct victims of gender discrimination.

The NWLC argues that the 11th Circuit was incorrect in its analysis of Title IX. Although Title IX does not expressly prohibit retaliation, the NWLC's brief states that an implied right of action against retaliation does exist when considering the "legislative history and context within which [Title IX] was passed."

Evidence can be found in the congressional hearings that Congress intended for retaliation to be prohibited by Title IX, the brief asserts. "This is not a novel argument," says Jocelyn Samuels, vice president for education and employment at the NWLC. "In fact, the Court has recognized that other anti-discrimination statutes inherently prohibit retaliation."

Moreover, the NWLC claims that, in addition to Title IX's implied right of action, an anti-retaliation regulation promulgated by the Department of Education under the statute further bolsters its contention.

The U.S. government brief agrees with the NWLC: "Congress would have understood that, by prohibiting sex discrimination in federally funded educational programs, it was simultaneously forbidding recipients from retaliating against persons who complain about that form of discrimination."

The NWLC stresses that the Court should make room for Jackson on its docket, as the lower courts are in conflict over the issue. The issue presented in this case "squarely divides the federal courts of appeals and is critical to effective enforcement of Title IX," writes the NWLC in their petition to the Supreme Court.

The 5th U.S. Circuit Court of Appeals in the 1997 decision in Lowrey v. Texas A&M University System -- a strikingly similar case -- held that the plaintiff, a women's athletic coordinator who was removed in retaliation for complaints about disparate treatment of male and female athletes, did have a cause of action for retaliation under Title IX.

"(I)ndividuals in the Fifth Circuit may sue for retaliation under Title IX; those in the Eleventh Circuit may not," says the NWLC. "That conflict by itself warrants the court's intervention."

In its reply brief, lawyers for the Birmingham Board of Education counter that the 11th Circuit was correct in its holding, citing Alexander v. Sandoval as precedent and binding authority.

"Sandoval established that Title IX, the statutory twin of Title VI, did not create an implied right of action that exceeds the scope of the express statutory right," states the opposing brief, filed by Kenneth Thomas of Thomas, Means, Gillis & Seay in Birmingham, Ala. "Nowhere in the text of the statute is there even a hint that alleged victims of retaliation ... are also protected."

The brief does not directly respond to the NWLC's argument that review should be granted in light of the circuit split over the issue.

U.S. Supreme Court Holds that a Private Right of Action for Retaliation is Implied by Title IX.
By Littler Mendelson

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On March 29, 2005, a divided United States Supreme Court expanded the scope of Title IX by ruling that a male coach who complained about discrimination against his high school girls' basketball team may sue for retaliation even though retaliation is not expressly mentioned in Title IX. Writing for the majority, Justice Sandra Day O'Connor stated that:
Retaliation against a person because that person has complained of sex discrimination is another form of intentional sex discrimination encompassed by Title IX's private right of action. Retaliation is, by definition, an intentional act. . . . We conclude that when a funding recipient retaliates against a person because he complains of sex discrimination, this constitutes intentional 'discrimination' 'on the basis of sex,' in violation of Title IX.

Background and Court's Majority Decision

Roderick Jackson was hired by the Birmingham, Alabama, public school system to serve as a physical education teacher and girls' basketball coach. After Mr. Jackson was transferred to Ensley High School in August 1999, he discovered that the girls' basketball team was not receiving equal funding or equal access to athletic equipment and facilities. In December of 2000, Mr. Jackson began complaining to his supervisors about the alleged unequal treatment of the girls' basketball team; however, the high school administration did not address his complaints. Mr. Jackson's supervisors began to give him negative performance evaluations, and he was ultimately removed as the girls' basketball coach. Mr. Jackson is still employed by the district as a teacher; however, he no longer receives extra pay for coaching the girls' basketball team.

Mr. Jackson sued the district alleging that the School Board had violated Title IX by retaliating against him for protesting the alleged discrimination against the girls' basketball team. The 11th Circuit Court of Appeals affirmed the district court's dismissal of his lawsuit on the basis that there is no language in Title IX prohibiting retaliation. The school district argued that Congress specifically prohibited retaliation when it enacted Title VII; however, there is no such language expressly prohibiting retaliation in Title IX. The United States Supreme Court overruled the 11th Circuit when it found that Title IX's cause of action for retaliation is implied, while Title VII's prohibition against retaliation is express.

The Birmingham Board of Education also argued that even if there were a private right of action for retaliation under Title IX, Coach Jackson was not entitled to invoke it because he was not a direct victim of sex discrimination. The Supreme Court stated that Title IX does not require that the victim of the retaliation must also be a victim of the discrimination about which he or she complained.

In the majority opinion, Justice O'Connor stated that it would be very difficult to achieve the purposes of Title IX if teachers or coaches were loathe to report alleged violations for fear of retaliation. She stated that ". . . if retaliation were not prohibited, Title IX's enforcement scheme would unravel." Jackson v. Birmingham Board of Education, 2005 U.S. LEXIS 2928 (Mar. 29, 2005).

The Dissent

The decision in Jackson, supra, is a 5-4 decision. Justice Clarence Thomas wrote the dissent and was joined by Chief Justice Rehnquist, Justice Scalia and Justice Kennedy. The dissent stated that the majority holding is contrary to the plain terms of Title IX because retaliatory conduct is not discrimination on the basis of sex. The dissent also stated that the court normally requires Congress to use express language when it imposes conditions on recipients of federal funding. Justice Thomas stated that the sex-based topic of Mr. Jackson's complaint cannot overcome the fact that retaliation is not based on anyone's sex, especially in this case the complainant's sex. The dissent found especially significant the fact that the text of Title IX does not mention retaliation, which is expressly prohibited in a number of other statutes including the ADA and the ADEA.

Recommendations for School and College Administrators.

1. Train administrators for colleges, community colleges and public schools.

In light of the Supreme Court's holding, it is reasonable to expect an increase in retaliation claims by employees who lose their positions as coaches. We recommend that institutes of higher education and public schools provide training to administrators about responding to complaints of Title IX violations and the prohibition against retaliation. As with other complaints of discrimination, it is important for administrators to respond promptly and to investigate any complaints that the school or college is violating Title IX. It is also important to heighten awareness among administrators about the new vulnerability to retaliation claims. We expect that the Office of Civil Rights Compliance (OCR) will be vigilant about investigating retaliation claims and enforcing the prohibition against retaliation.

2. Conduct an audit of your practices.

We recommend that public school and education employers do an audit of their practices with respect to providing financial support, use of facilities and equipment to athletic teams in order to correct any inequities. If the college or school district has not conducted such an audit recently, we suggest that the educational institution investigate to make sure that female sports teams are treated equally with respect to the time that they may access the gym for practice, access to equipment, team travel, and financial support. Often issues arise in the scheduling of practice time between girls' teams and boys' teams in contact sports. There should not be separate P.E. classes for boys and girls in public schools unless the classes involve contact sports.

Experienced employment counsel can help higher education and public school employers monitor compliance with Title IX and monitor continuing developments likely to be triggered by this Supreme Court decision.

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