In Jackson v. Birmingham Board of Education, the U.S. Supreme Court considered whether the federal law prohibiting discrimination on the basis of sex in federally financed education programs鈥� Title IX of the Education Amendments of 1972鈥攇ives people the right to sue if they suffer retaliation for complaining about violations.
From the majority opinion by Justice O鈥機onnor, joined by Justices Stevens, Souter, Ginsburg, and Breyer:
Retaliation against a person because that person has complained of sex discrimination is another form of intentional sex discrimination encompassed by Title IX鈥檚 private cause of action. Retaliation is, by definition, an intentional act. It is a form of 鈥渄iscrimination鈥� because the complainant is being subjected to differential treatment. 鈥�
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Moreover, retaliation is discrimination 鈥渙n the basis of sex鈥� because it is an intentional response to the nature of the complaint: an allegation of sex discrimination. We conclude that when a funding recipient retaliates against a person because he complains of sex discrimination, this constitutes intentional 鈥渄iscrimination鈥� 鈥渙n the basis of sex,鈥� in violation of Title IX. 鈥�
The statute is broadly worded; it does not require that the victim of the retaliation must also be the victim of the discrimination that is the subject of the original complaint. 鈥�
Where the retaliation occurs because the complainant speaks out about sex discrimination, the 鈥渙n the basis of sex鈥� requirement is satisfied. The complainant is himself a victim of discriminatory retaliation, regardless of whether he was the subject of the original complaint. 鈥�
If recipients were permitted to retaliate freely, individuals who witness discrimination would be loath to report it, and all manner of Title IX violations might go unremedied as a result. 鈥�
Indeed, if retaliation were not prohibited, Title IX鈥檚 enforcement scheme would unravel. 鈥� Moreover, 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. Indeed, sometimes adult employees are 鈥渢he only effective adversar[ies]鈥� of discrimination in schools. 鈥�
The board insists that we should not interpret Title IX to prohibit retaliation because it was not on notice that it could be held liable for retaliating against those who complain of Title IX violations. We disagree. 鈥�
A reasonable school board would realize that institutions covered by Title IX cannot cover up violations of that law by means of discriminatory retaliation.
From the dissent by Justice Thomas, joined by Chief Justice Rehnquist and Justices Scalia and Kennedy:
A claim of retaliation is not a claim of discrimination on the basis of sex. 鈥�
[T]he natural meaning of the phrase 鈥渙n the basis of sex鈥� is on the basis of the plaintiff鈥檚 sex, not the sex of some other person. 鈥�
For example, suppose a sexist air traffic controller withheld landing permission for a plane because the pilot was a woman. While the sex discrimination against the female pilot no doubt adversely impacted male passengers aboard that plane, one would never say that they were discriminated against 鈥渙n the basis of sex鈥� by the controller鈥檚 action. 鈥�
Jackson does not claim that his own sex played any role, let alone a decisive or pre-dominant one, in the decision to relieve him of his position. 鈥�
Because Jackson鈥檚 claim for retaliation is not a claim that his sex played a role in his adverse treatment, the statute鈥檚 plain terms do not encompass it.
Jackson鈥檚 lawsuit therefore differs fundamentally from other examples of sex discrimination, like sexual harassment. A victim of sexual harassment suffers discrimination because of her own sex, not someone else鈥檚. 鈥�
Moreover, Jackson鈥檚 retaliation claim lacks the connection to actual sex discrimination that the statute requires. Jackson claims that he suffered reprisal because he complained about sex discrimination, not that the sex discrimination underlying his complaint occurred. 鈥�
Retaliation therefore cannot be said to be discrimination on the basis of anyone鈥檚 sex, because a retaliation claim may succeed where no sex discrimination ever took place. 鈥�
The board, and other Title IX recipients, must now assume that if conduct can be linked to sex discrimination鈥攏o matter how attenuated that link鈥攖his court will impose liability under Title IX. 鈥�
The court establishes a prophylactic enforcement mechanism designed to encourage whistle-blowing about sex discrimination. 鈥�
The majority also offers nothing to demonstrate that its prophylactic rule is necessary to effectuate the statutory scheme. Nothing prevents students鈥攐r their parents鈥攆rom complaining about inequality in facilities or treatment.
SOURCE: U.S. Supreme Court
