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鈥� basketball coach who sued the Birmingham, Ala., school district in 2001.
Hailed by advocates as a major victory for female equality and for civil rights more broadly, the court鈥檚 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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鈥淚t鈥檚 too early to tell what the real impact of this case is going to be,鈥� said Julie Underwood, the general counsel of the Alexandria, Va.-based NSBA. 鈥淏ut we鈥檙e glad the court didn鈥檛 make a broad, sweeping statement about retaliation under all the discrimination statutes.鈥�
A lawyer for Mr. Jackson, though, said the court had affirmed the basic principle 鈥渢hat people cannot be punished for standing up for their rights,鈥� a protection that 鈥渋s not just critical for Title IX, but also for other bedrock civil rights laws.鈥�
鈥淭he decision was therefore very, very important,鈥� said Marcia D. Greenberger, the co-president of the National Women鈥檚 Law Center in Washington, which represented Mr. Jackson.
In her majority opinion, Justice Sandra Day O鈥機onnor 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.
鈥淩eporting incidents of discrimination is integral to Title IX enforcement and would be discouraged if retaliation against those who report went unpunished,鈥� Justice O鈥機onnor wrote in an opinion joined by Justices John Paul Stevens, David H. Souter, Ruth Bader Ginsburg, and Stephen G. Breyer.
鈥淚ndeed, if retaliation were not prohibited,鈥� she added, 鈥淭itle IX鈥檚 enforcement scheme would unravel.鈥�
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鈥檚 ruling, Justice Thomas said, was 鈥渄esigned to encourage whistleblowing about sex discrimination鈥� among people not victimized by the kind of bias the law aimed to prevent.
鈥淭he question before us is only whether Title IX prohibits retaliation, not whether prohibiting it is good policy,鈥� 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鈥檚 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鈥� 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鈥機onnor reasoned in her opinion that 鈥渨hen a funding recipient retaliates against a person because he complains of sex discrimination, this constitutes intentional 鈥榙iscrimination on the basis of sex.鈥� 鈥�
Moreover, she wrote, 鈥淸t]he complainant is himself a victim of discriminatory retaliation, regardless of whether he was the subject of the original complaint.鈥�
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鈥檚 lawyers, Justice O鈥機onnor said that 鈥渢eachers 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.鈥�
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鈥機onnor 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鈥檚.
鈥淎 claim of retaliation is not a claim of discrimination on the basis of sex,鈥� he wrote. 鈥淏ecause 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.鈥�
Justice Thomas also rejected the notion that Title IX enforcement would be undermined if teachers and coaches were not able to sue for retaliation.
鈥淣othing prevents students鈥攐r their parents鈥攆rom complaining about inequality in facilities or treatment,鈥� he wrote.
If the majority had sided with Justice Thomas, Mr. Jackson said after last week鈥檚 ruling, 鈥渋t would have been a devastating blow to many young ladies and young men across the nation.鈥�
鈥淲hen people know they are protected against retaliation, people like my students and myself will be more willing to come forward when there鈥檚 a problem,鈥� the 39-year-old coach said in a teleconference with reporters following the decision.
But the NSBA鈥檚 Ms. Underwood said the decision gives people a new 鈥減ath to the courthouse鈥� that was unnecessary, given the other avenues available for enforcing Title IX.
Teachers and coaches with complaints such as Mr. Jackson鈥檚 are protected by the constitutional right to free speech, state and federal whistleblower statutes, and 鈥渁ll the protections public employees have,鈥� including tenure and due-process rights, she argued.
Last week鈥檚 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.
鈥淚t just provides one more hoop that school districts are going to have to go through to protect themselves against complaints of retaliation,鈥� she said.
What kind of help employees or others can expect if they report alleged violations of Title IX to the Department of Education鈥檚 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鈥檚 Law Center contended last week that the office has a 鈥渧ery spotty record鈥� of investigating complaints of sex discrimination in schools.
Because the OCR has often been 鈥渕issing in action,鈥� 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鈥檛 know anyone who had gotten relief that way.
鈥淚f the courthouse door had been slammed to Mr. Jackson, there would have been no real remedy for him,鈥� Ms. Greenberger said.
A spokeswoman for the Education Department dismissed Ms. Greenberger鈥檚 comments as 鈥渏ust more special-interest misrepresentation of the facts.鈥�
The OCR has opened 鈥渨ell over 1,000 complaints鈥� alleging violations of Title IX since Jan. 1, 2002, said department spokeswoman Susan Aspey. 鈥淎ll in all, we investigate a significant amount of Title IX cases every year,鈥� she said.
Back to Birmingham
For Mr. Jackson, the Supreme Court鈥檚 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鈥檚 female basketball players faced illegal discrimination.
For example, Mr. Jackson contends that the girls鈥� team received no money from ticket sales and had to practice in an unheated gym built in 1908, while the boys鈥� 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 鈥渋nterim coach鈥� of the girls鈥� 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 鈥渢he local and national media got involved.鈥� For example, he said, the girls and boys now take turns practicing on the school鈥檚 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鈥檚 ruling, but predicted that the school system would prevail should the case proceed to trial.
鈥淭he school board does not have a policy of treating girls鈥� and boys鈥� sports teams differently,鈥� said Kenneth L. Thomas, the district鈥檚 lawyer. 鈥淭here had never been any disparity between the girls鈥� and boys鈥� programs at Ensley. That鈥檚 been our position since day one.鈥�
But Mr. Thomas also said that he expected both sides in the case to entertain an out-of-court settlement.
鈥淎s the case makes it way back to Birmingham,鈥� he said, 鈥渂oth sides will look at what their options are.鈥�
