Jackson, Roderick v. Birmingham Board of Education (03/29/2005)

Questions presented: Whether the private right of action for violations of Title IX of the Education Amendments of 1972, 20 U.S.C. 1681 et seq., encompasses redress for retaliation for complaints about unlawful sex discrimination?BY PAULINE VU, MEDILL NEWS SERVICE

Roderick Jackson hadn’t been the girls basketball coach at Ensley High School in Birmingham, Ala., for long when he noticed what he saw as disparities between the boys’ program and the girls’ program.

The boys’ team, he claimed, was better funded and had better access to the school’s sports facilities and equipment. Some examples Jackson cited was when the girls’ junior varsity team was disbanded, while the boys’ JV team was not, or how the girls had to practice in the older gym with a smaller-than-regulation-sized court, crooked rims and no heat.

Jackson took his complaints to his supervisors and soon after began receiving negative evaluations. He was fired as the girls’ coach in May 2001. Although a new administration gave him the coaching job back in December 2003 on an interim basis, Jackson still lost the extra pay he got as a coach until then.

Jackson sued the Birmingham Board of Education in U.S. District Court in Alabama, saying that he was a victim of retaliation for complaining about discrimination, and that he was protected from it under Title IX, a statute that bans gender discrimination in federally-funded programs. The district court dismissed his complaint, ruling that Title IX does not allow a private right of action – or, in Jackson’s case, the right to sue the Board – for retaliation. It also said Jackson wasn’t a part of the class Title IX was created to protect.

Jackson appealed to the Atlanta-based 11th Circuit Court of Appeals. On Oct. 21, 2002, the court unanimously decided in favor of the Board, referring to the U.S. Supreme Court’s 2001 decision in Alexander v. Sandoval, which held that courts may not allow a private right of action without explicit Congressional intent concerning Title VI, a federal statute identical to Title IX except that it bars discrimination on the basis of race, not sex. As a result, the 11th Circuit ruled that Title IX’s language did not prove "that Congress intended to imply a private cause of action for retaliation."

In so holding, the 11th Circuit looked to the wording of Title IX.

"Nothing in the text indicates any congressional concern with retaliation that might be visited on those who complain of Title IX violations. Indeed, the statute makes no mention of retaliation at all," Judge Stanley Marcus wrote. "Our task...is to interpret what Congress actually said, not to guess from congressional silence what it might have meant. The absence of any mention of retaliation in Title IX therefore weighs powerfully against a finding that Congress intended Title IX to reach retaliatory conduct."

The 11th Circuit also backed the district court’s finding that Jackson did not belong to the class of citizens Title IX was meant to protect.

"Moreover, even if Title IX did aim to prevent and remedy retaliation for complaining about gender discrimination, Jackson is plainly not within the class meant to be protected by Title IX," Marcus wrote.

Although the appeals court acknowledged that gender discrimination affects not only direct victims, but those who work with them, including coaches, the opinion stated: "Congress could easily have provided some protection or form of relief to these other interested individuals had it chosen to do so – especially for a harm as plainly predictable as the retaliation here at issue – but it did not do so expressly. Nor does any language in [Title IX] evince an intent to protect anyone other than the direct victims of gender discrimination."

Jackson sought review by the U.S. Supreme Court. His petition for review, drafted by the National Women’s Law Center, argued that Title IX compliance depends on the willingness of people to come forward with information about discrimination, saying that was what Jackson had done.

"Those enforcement efforts would be undermined significantly – and discrimination thus perpetuated – if individuals who bring discrimination to the attention of the appropriate officials are not protected against retaliation," the petition stated.

One of the petition’s main arguments was that other circuit courts have recognized protection against retaliation as implied in civil rights statutes.

"The [11th Circuit] decision…is also inconsistent with a long line of cases...recognizing that a prohibition on retaliation is necessarily implicit in an anti-discrimination mandate. This [Supreme] Court has found that fundamental civil rights statutes...which do not have an express prohibition on reprisal discrimination, do protect against retaliation," the petition argued.

Marcia Greenberger, Jackson’s lawyer and co-president of the NWLC, said that all circuit courts that have dealt with such cases have ruled in favor of those claiming retaliatory discrimination, and that the 11th Circuit is the only one to rule otherwise. Most recently, a split 4th Circuit ruled in Peters v. Jenney that the plaintiff could sue for retaliation under Title VI.

The petition also argued that Congress did intend to prohibit retaliation under Title IX, pointing out that when the Department of Education submitted several regulations to it concerning Title IX, including anti-retaliation regulation, Congress held hearings to consider expressing its disapproval and chose not to.

"As a result, those regulations, including the anti-retaliation regulation, became effective with implicit congressional blessing," the petition stated.

Last of all, the petition pointed out that the departments of Justice and Education, two entities that enforce Title IX, prohibit retaliation in their readings of Title IX. When the Supreme Court asked for the government’s view on the matter in October 2003, Solicitor General Theodore Olson said the Court should accept the case and find in favor of Jackson.

The Birmingham Board of Education’s brief in opposition affirmed its stance that "inasmuch as Title IX contains no reference to retaliation, any implied private remedy for retaliation is...precluded."

On June 14, 2004, the Supreme Court agreed to hear the case. Kenneth Thomas, the Board’s attorney, said the Court likely accepted it to resolve the difference in circuit court opinions.

"This matter can easily be amended by Congress amending Title IX if it chose to do so," Thomas said. "Congress can easily take up Title IX, amend it to provide for [retaliation], and all of this goes away.

"We have not gone down that road because of a differing view on what has been the impact and importance of Title IX."

Greenberger said the Supreme Court’s ruling could change the way Title IX is currently interpreted.

"All along, it’s been assumed that those who complain of retaliation are protected by Title IX," she said. "If the Supreme Court were to adopt the 11th Circuit Court’s interpretation, it would be a narrowing of what had been assumed to be Title IX’s position."

On March 29, 2005, a divided Court agreed with Greenberger, holding 5-4 that Jackson could bring a Title IX case against a school that retaliates against him because he complained of sex discrimination.

Writing for the bare majority, Justice Sandra Day O'Connor rejected the argument that Title IX should not apply because Jackson is only an "indirect" victim of sex discrimination. Since Title IX is intended not only to prevent the use of federal dollars to support discriminatory practices, but also to provide citizens effective protection against those practices, the majority reasoned, the objective would be thwarted if people complaining about sex discrimination did not have effective protection against retaliation.

In dissent, Justice Clarence Thomas wrote that the majority's opinion is contrary to the plain terms of Title IX, because "retaliatory conduct is not discrimination on the basis of sex," and unless Congress speaks "unambiguously in imposing conditions on funding recipients through its spending power," the Court will not infer a private cause of action.

Thomas argued that the majority's attempt to encourage whistleblowing about sex discrimination is not needed. "Nothing prevents students–or their parents–from complaining about inequality in facilities or treatment," Thomas wrote. "Under the majority’s reasoning, courts may expand liability as they, rather than Congress, see fit. This is no idle worry. The next step is to say that someone closely associated with the complainer, who claims he suffered retaliation for those complaints, likewise has a retaliation claim under Title IX."

Chief Justice William Rehnquist and Justices Antonin Scalia and Anthony Kennedy joined in the dissent.

Attorneys in this case: For Roderick Jackson:Walter DellingerO'Melveny & Myers, LLP1625 Eye Street, NWWashington, DC 20006(202) 383-5300

Marcia D. GreenbergerNational Women's Law Center11 Dupont Circle, NWSuite 800Washington, DC 20036(202) 588-5180

For Birmingham Board of Education:Kenneth L. Thomas505 20th Street North, Suite 1035Birmingham, AL 35237-0447(205) 328-7915

For U.S.:THEODORE B. OLSONSolicitor General, Counsel of RecordR. ALEXANDER ACOSTAAssistant Attorney GeneralPAUL D. CLEMENTDeputy Solicitor GeneralIRVING L. GORNSTEINAssistant to the Solicitor GeneralDENNIS J. DIMSEYLINDA F. THOME