Equality in sports is still elusive goal for girl athletes.

Roderick Jackson, a teacher and coach at Ensley High School in Birmingham, Alabama, watched his girls basketbal team practice each week in an unheated gym with wooden backboards and bent rims. The boys' team had exclusive use of the new, regulation gym. The girls arranged their own transportation to away games, while the boys rode school buses. The boys received a portion of the money from admissions and concessions at their games. The girls did not, even though the teams had to pay for their own game officials.

The coach saw his girls denied access to other amenities, too. "On one occasion," he told reporters at a press conference, "I was forced to break into the ice machine with a screwdriver to put ice on an injured player."

When Jackson complained, he was relieved of his coaching duties. Now his Tide IX retaliation suit is before the U.S. Supreme Court.

"I spoke up on an issue that no one was ready to deal with, all unpopular issue, and I got penalized for it," Jackson said. "And the young ladies at Ensley lost the only person who was willing to speak up for them."

More than 30 years after Title IX of the Education Amendments Was passed in 1972, plaintiffs like Jackson are still fighting for its enforcement. The law prohibits discrimination on the basis of sex by educational institutions that receive federal funds. It applies to all terms of discrimination, including sexual harassment, and is often used to enforce equal opportunities for girls in school athletics.

Department of Education regulations interpreting Title IX require schools to provide equal athletic opportunities for women. Case law has upheld this, and many schools have added girls' teams. According to a survey by the National Federation of State High School Associations, approximately 300,000 girls and 3.5 million boys participated ill high school sports in 1971; in 2002, 2.8 million girls and almost 4 million boys played in high schools.

Equal rights advocates say these changes are good for adolescent girls. According to the National Women's Law Center (NWLC) in Washington, D.C., studies show that high school girls who participate in sports have higher grades, higher standardized-test scores, lower teen-pregnancy rates, and higher graduation rates.

Why, then, are plaintiffs still filing Title IX cases? Because even when girls have their teams, advocates argue, schools--especially high schools--still treat them like second-class citizens. The latest cases focus predominantly on this unequal treatment and on coaches' right to complain about it.

"While the majority of Title IX cases are filed against colleges, the most egregious discrimination occurs at the K-12 level, to younger athletes who lack the political clout to object," said Nancy Solomon, senior staff attorney at the California Women's Law Center in Los Angeles. The center, along with the Legal Aid Society-Employment Law Center, recently filed a Title IX case against a high school in Alhambra City, California.

NWLC Senior Counsel Dina Lassow agreed: "There's a new focus on high schools, where there had been more of a focus on colleges. The high school cases tend to be equal-treatment cases rather than equal-participation-opportunities cases."

Taking a stand

Jackson represented himself before the Eleventh Circuit and lost. The court ruled that Title IX does not allow third-party retaliation claims, applying the U.S. Supreme Court's opinion in Alexander v. Sandoval, which found no private right of action for disparate-impact claims under Tide VI of the Civil Rights Act. (532 U.S. 275 (2001).)

Because Title IX was modeled on Title VI, the Eleventh Circuit believed that other claims would not be allowed, either. "Statutory intent remains the touchstone of our analysis," wrote Judge Stanley Marcus. "Without it--and the mandate of Sandoval is crystal clear on tiffs point--we simply cannot imply a private right of action, no matter how desirable the result may be." (Jackson v. Birmingham Bd. of Educ., 309 E3d 1333, 1347-48 (11th Cir. 2002), cert. granted, 124 S. Ct. 2834 (2004) (No. 02-1672).)

"In holding that Tide IX does not prohibit retaliation, the Eleventh Circuit stands alone," said Marcia Greenberger, co-president of the NWLC, at a press conference. The group is representing Jackson on his appeal to the Supreme Court.

The circuit's "decision is also inconsistent with a longline of Supreme Court cases recognizing that a prohibition on retaliation is a necessary pact of other broadly worded antidiscrimination law that do not expressly bar retaliation," Greenberger said.

Lassow added: "It just seems essential that for effective enforcement of non-discrimination laws, you have to be able to complain about discrimination without facing retaliation."

Before agreeing to hear the case, the High Court asked the Department of Justice (DOJ) to weigh in on the issue. The department not only supported review but also raged the Court to uphold Jackson's claim.

Congress's goals in passing Title IX "would be difficult, if not impossible, to achieve if recipients [of federal funds] remained flee to retaliate against individuals who complain about sex discrimination,"

DOJ said in its brief. "Teachers and coaches are often in a much better position to identify sex discrimination and express opposition to it than are students who are denied equal educational opportunities."

Other circuits, including the Fourth and Fifth, have upheld retaliation claims under Title IX and Title VI. (See, e.g., Lowrey v. Tex. A&M Univ. Sys., 117 E3d 242 (5th Cir. 1997); Littman v. George Mason Univ., No. 01-2128, 2004 WL 345758 (4th Cir. Feb. 25, 2004); Peters v. Jenney, 327 F.3d 307 (4th Cir. 2003).)

The Third Circuit is awaiting the Court's. Jackson decision before ruling on a university' professor's retaliation claim. Eve Atkinson, director of athletics and a physical education professor at Lafayette College in Easton, Pennsylvania, was threatened and then fired after submitting changes to her department's budget to bring the school's athletic programs into Title IX compliance. The trial court dismissed her case. (Atkinson v. Lafayette College, No. CIV.A. 01-CV-2141, 2003 WL 21956416 (E.D. Pa. July 24, 2003).)

Not second-class

In other litigation, student athletes and their parents are taking schools to court to compel equal treatment. The Second Circuit recently ordered two school districts in New York to reschedule their girls' soccer seasons. Most of the schools in the state play soccer ill the fall, but a few set the girls' seasons in the spring.

Besides interfering with statewide club teams, this schedule excluded the girls from the state high school soccer tournaments and put them at a disadvantage in college recruiting. After several girls complained, six schools agreed to change their programs. Two that refused faced Title IX lawsuits.

Paul Robbins, a New York City attorney, said his daughter was among that group. She was suspended from her high school soccer team because she missed a school game to play in a state cup game for her club team. Her school agreed to change its schedule, but Robbins took on her friends' case.

The district court ruled that the schools had to change their schedules, and the Second Circuit agreed.

"We are unpersuaded by the school districts' attempt to downplay the significance of the opportunity that they are denying their female athletes but affording their male athletes--the chance to be state champions. We agree with plaintiffs that denying girls at the Pelham and Mamaroneck high schools treatment equal to boys in a matter so fundamental to the experience of sports denies equality of athletic opportunity to the female students," Judge Chester Straub wrote for the circuit panel. (McCormick v. Sch. Dist. of Mamaroneck, 370 E3d 275 (2d Cir. 2004).)

"The court recognized that every athlete's goal is to get to the championships," Robbins said. "The day we argued the appeal, the University of Connecticut's men's basketball team was playing for the national championship; the women's team was playing the next day. I argued to the court that no one would claim that the U. Conn. men should get to play for the championship but the women shouldn't."

In a class action by an organization of parents and students against the Michigan High School Athletics Association, Judge Richard Enslen ruled in a bench trial that scheduling non-traditional or disadvantageous seasons for girls' teams is discrimination under the Equal Protection Clause, Title IX, and the state's civil rights law. (Mich. High. Sch. Athletics Ass'n. v. Cmties. for Equity, 178 F. Supp. 2d 805 (W.D. Mich. 2001).)

The Sixth Circuit affirmed the verdict based on the Equal Protection Clause but did not address the Title IX issue or the state law claim. (No. 021127, 2004 WL 1660268 (6th Cir. July 27, 2004).)

Although women's athletics have made significant strides in recent decades, much remains to be done, advocates agree. They say these cases are important steps toward seeing Tire IX fully enforced.

"Title IX is not going to be as effective if lawyers don't ... bring these cases, because the schools are not paying attention, and the federal government isn't either," said Solomon, of the California Women's Law Center.

Jackson agrees. "I want to be able to do my part to ensure that my son and daughter, and the girls on my team, are treated fairy when they play sports," he said. "I hope that the Supreme Court will agree that I have the right to do that and that my school can't punish me for speaking up."