A girls' team, a fired coach, and Title IX

When coach Roderick Jackson complained that his girls' basketball team was being treated like second-class citizens at Ensley High School in Birmingham, Ala., school administrators took firm and immediate action - against Coach Jackson.

"I was told that I was not a team player, that I needed to play ball or I was going to make problems for myself," Mr. Jackson says. "And they weren't joking." He was fired.

Incensed, Jackson filed suit in federal court under Title IX, which outlaws gender discrimination in public education. To his surprise both a federal judge and a federal appeals court panel threw out his lawsuit saying the law bans sex discrimination, but does not cover acts of retaliation against someone like a coach who fights for what he or she sees as parity on the playing field.

Monday, the US Supreme Court is expected to announce whether it will take up Jackson's case and decide for the entire nation whether the protections of Title IX must be applied broadly in a way that would permit Jackson's suit, or narrowly in a way that would exclude it.

"If the decision [of the appeals court] is left to stand and become the law, it really sets a very bad example and I think would make people cautious about stepping up to protect the rights of those who have been discriminated against," says Walter Dellinger, a Duke University Law School professor and former acting US solicitor general. Mr. Dellinger was hired by the National Women's Law Center in Washington to represent Jackson before the high court.

The case is being closely followed by civil rights activists who are concerned about the potential implications of the case on a range of civil rights laws. If the Supreme Court adopts a restrictive view of Title IX, it will make it more difficult for individuals to fight discrimination.

Others say the case is important because it confronts the proper role of judges in interpreting the law rather than rewriting it through expansive rulings.

Kenneth Thomas, who represents the Birmingham Board of Education, disputes Jackson's portrayal of the case. "We have a story to tell, too," Mr. Thomas says. "All of the facts are not as bad as he has painted them."

Thomas says that if Jackson loses at the Supreme Court, those fired for reporting discrimination will still have recourse to sue for retaliation. He says other civil rights and employment discrimination laws cover retaliatory actions, but Congress never intended to permit such lawsuits under Title IX.

"There is nothing to prevent Congress from amending Title IX to include an antiretaliation provision," he notes.

In its decision rejecting Jackson's case, a three-judge panel of the 11th US Circuit Court of Appeals in Atlanta ruled that Title IX does not permit an individual to sue for an act of retaliation.

"Gender discrimination affects not only its direct victims, but also those who care for, instruct, or are affiliated with them - parents, teachers, coaches, friends, significant others, and coworkers," writes Circuit Judge Stanley Marcus for the panel. "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."

Last year, a panel of the Fourth US Circuit Court of Appeals in Richmond, Va., reached the opposite conclusion in a similar case. A Virginia Beach school administrator lost her job after she complained about racial discrimination against African-American students who were excluded from certain educational programs. The administrator, who is white, sued the school district for retaliation related to the racial discrimination. The appeals court panel voted 2 to 1 to allow the suit.

Her suit was filed under Title VI of the Civil Rights Act of 1964, which bars discrimination based on race. Congress used identical language in both Title VI and Title IX. That means that the 11th Circuit and the Fourth Circuit can't both be correct. If the high court takes Jackson's case, the justices must declare which appeals court ruled correctly.

Marcia Greenberger of the National Women's Law Center says a ruling against Jackson would persuade many coaches and teachers to keep quiet about discrimination. "I worry about a real snowball effect," she says. "There is a great fear on the part of many to complain."

Jackson says he went to five different school administrators about the unequal treatment of the girls' and boys' basketball teams. Rather than having access to a newly constructed gym, the girls' team was relegated to the old gym with wooden backboards, bent basketball rims, and no heat, Jackson says.

The boys' team was able to pay team expenses from money earned from admission to games and concession-stand proceeds. The girls' team was not.

Jackson's complaints came at a price. "I not only lost the pleasure of coaching, but I lost the added income and added retirement income," Jackson says. "I was labeled a troublemaker and was turned down for other coaching jobs." But there have been some developments. Last fall, after 2-1/2 years away, Jackson was rehired as the acting girls' basketball coach. The team now receives money from concession stands, though not admissions.

In the meantime, his team, the Ensley Yellow Jackets, finished 6-2 this season, behind a team that won the Alabama championship.

While Title IX has given rise to controversies such as that at Ensley High School, it's also been instrumental in increasing the profile of women's sports. In 1981-82, 64,000 women participated in college varsity sports, while 167,000 men did, according to the National Collegiate Athletic Association. In 2000-01, the numbers had changed to 149,000 women and 207,000 men.

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