High court ponders scope of Title IX in retaliation case.

Can antidiscrimination laws he effective if they do not protect whistleblowers? Are administrative sanctions sufficient to prevent retaliation against those who allege civil rights violations?

These are just two of the questions raised in recent oral arguments before the U.S. Supreme Court in the case of a high school basketball coach who claims that he was fired for complaining that his girls' team was treated unfairly. (Jackson v. Birmingham Bd. of Educ., No. 02-1672 (S. Ct. argument heard Nov. 30, 2004).)

Roderick Jackson said his female players at Ensley High School in Birmingham, Alabama, practiced in substandard facilities and were denied many amenities the school provided to the boys' basketball team. He complained to the school administration and then the Birmingham Board of Education, to no avail. Soon thereafter, he began receiving negative work evaluations and was removed from his coaching duties, although he kept his teaching job.

The district court dismissed his retaliatory-firing suit against the board, saying that Title IX does not allow such claims and that Jackson had no standing to sue under the statute. The Eleventh Circuit agreed, noting that the statute does not specifically mention retaliation claims. (309 F.3d 1333 (11th Cir. 2002).)

The circuit court relied on the U.S. Supreme Court's ruling in Alexander v. Sandoval, which found no private right of action for disparate-impact race-discrimination claims under Title VI of the Civil Rights Act. (532 U.S. 275 (2001).) The Court concluded that it could not extend a statute's reach beyond claims it specifically includes, unless the law contains no remedy or there is evidence that Congress intended the claim to be covered.

Like Title VI, Title IX is broadly worded: It includes no direct reference to retaliation or private lawsuits. The statute, enacted under federal spending powers, authorizes the U.S. Department of Education's Office of Civil Rights (OCR) to withdraw federal funds if it determines a school has discriminated on the basis of sex. Jackson did not file a complaint with the agency.

On appeal, he argued that although Title IX does not mention retaliation, Congress intended the claim to be covered. When the law was enacted, the Supreme Court had already held that broad statutory bans on discrimination include prohibitions on retaliation. (Sullivan v. Little Hunting Park, Inc., 396 U.S. 229 (1969).) If retaliation were assumed included in the law, then Sandoval would support a private lawsuit.

In oral arguments, the Supreme Court explored this assumption and considered whether the administrative remedies provided under the statute were enough.

Antidiscrimination statutes cannot be effective without protection against retaliation, Walter Dellinger of Washington, D.C., who argued for the plaintiff, told the Court. "It is people like Coach Jackson that make [these laws] work," he said.

Justice Antonin Scalia asked Dellinger whether he was arguing that if retaliation suits were not allowed, teachers would not blow the whistle and the statute would be a dead letter. "Is there an argument to say that administrative remedy simply is not good enough?" he asked.

Yes, Dellinger responded, noting that the OCR had never withdrawn funding to enforce Title IX. "You're not going to be able to protect the whistleblowers" without allowing these claims, he said.

Justice Ruth Bader Ginsburg called private right of action a "powerful incentive" for schools not to retaliate against complainers.

However, private retaliation suits would not provide a remedy for the real victims of discrimination, argued Kenneth Thomas, counsel for the Birmingham Board of Education. In Jackson's private action, "the damages go directly to [Jackson], the injunction goes directly to him, nothing goes to benefit the girls' basketball team."

Incentive to comply

Thomas also noted that OCR investigations into discrimination complaints are burdensome to schools and therefore are a substantial incentive for them to comply with the law. He said that he didn't know of any school district that would not respond to OCR regulation: "When they call, we're supposed to jump," he said.

But Ginsburg queried whether the OCR was too strapped for resources to adequately respond to complaints. When asked how many times the office had investigated his school district, Thomas admitted he could remember it happening only twice in his 26-year tenure. "But they were all memorable," he added.

The justices also explored whether a person can be discriminated against because of someone else's sex. The discrimination at issue allegedly targeted the female student-athletes. Only the retaliatory action was aimed at Jackson, not--as Justice Sandra Day O'Connor noted--discrimination based on his sex.

Justice Stephen Breyer drew a parallel to race discrimination cases. If a white man were mistreated because he associated with African-Americans, he asked, would he be able to bring a lawsuit? Breyer said he supposed the man would, although the claim would not be based on the plaintiff's own race.

Assistant Solicitor General Irving Gornstein argued for Jackson on behalf of the Justice Department. Alabama Solicitor General Kevin Newsom argued for the state in favor of the school board. (See also Sara Hoffman Jurand, Equality in Sports Is Still Elusive Goal for Girl Athletes, TRIAL, Sept. 2004, at 16.)