A test of how far Title IX protections reach

The Supreme Court Tuesday considers the case of a fired coach who had railed against conditions for female athletes.

Gender-bias laws are meant to prevent discrimination against women and girls, but a US Supreme Court case is asking whether those protections also extend to men.

When Congress passed Title IX in 1972, it sought to reverse a nationwide legacy of gender discrimination that had blocked women and girls from fully participating in educational opportunities, including sports.

Lawmakers established two remedial mechanisms. They set up an administrative process with the authority to cut off all federal funding to any school found to be engaging in gender bias. And they opened the doors to federal courthouses for private lawsuits. But what Congress didn't make clear in its groundbreaking legislation was exactly who could file such suits and under what circumstances.

Do the protections of Title IX apply only to girls and women who are direct victims of gender discrimination? Or may third parties - including men - sue when their alleged injury is somehow related to sex discrimination?

Tuesday, the US Supreme Court confronts those questions as it takes up the case of a male coach of a girls' high school basketball team who says he lost his coaching job because of his repeated complaints to school officials that female athletes were being treated as second-class citizens.

Coach Roderick Jackson sued the Birmingham, Ala., Board of Education, claiming the school district had violated Title IX in taking retaliatory action against him. At issue is whether Coach Jackson's firing amounts to a form of gender discrimination under Title IX.

The case is important because if the high court agrees with Jackson and adopts a broad reading of Title IX, it will make it easier to take legal action against gender bias. On the other hand, if the court sides with the school district, a more restrictive reading of the law will help insulate public school districts - and the taxpayers who fund them - from costly litigation by those who have not suffered directly from bias.

The trend at the Supreme Court under Chief Justice William Rehnquist has been to adopt a narrow reading of statutes when Congress does not use explicit language. But it is unclear how the court's swing voters - Justices Sandra Day O'Connor and Anthony Kennedy - will view the law.

"Retaliation is simply one variant of discrimination," says Marcia Greenberger of the National Women's Law Center in her brief to the court on behalf of Jackson. "Retaliation is 'on the basis of sex' when it is triggered by a complaint about sex-based discrimination."

Not so, counters Kenneth Thomas, a Birmingham lawyer representing the Board of Education. "There is a palpable difference between discrimination and retaliation," he says in his brief. "Being punished for speaking out on an issue regarding sex is not the same as being discriminated against on the basis of one's sex, particularly where the complainer's sex is not at issue."

Jackson teaches physical education at Ensley High School in Birmingham, and until 2001 he also coached the girls' basketball team. He was removed from the coaching position after complaining that the girls' team was not receiving equal funding and equal access to sports facilities and equipment.

Although he lost his coaching job, he continued to be employed as a teacher at the school. Jackson sued the school board to get his coaching job back with back pay, but both a federal judge and a federal appeals court panel tossed out his suit. The judges ruled that Title IX does not authorize suits claiming retaliation.

Jackson has since been rehired as a coach. But the issues of back pay and attorney fees are still pending.

The case is being watched by civil rights and women's rights groups, who are urging that the court adopt an expansive reading of the gender-bias law. Urging a more restrictive reading are the State of Alabama and eight other states, conservative public-interest law firms, and the National School Boards Association.

The College Sports Council in Washington filed a friend-of-the-court brief in support of neither party.

The statute appears to authorize only court cases filed by direct victims of discrimination, not retaliatory claims like Jackson's, says Lawrence Joseph, a Washington lawyer who filed the CSC brief. But the administrative regulations written by the Department of Education (rather than Congress) do recognize retaliation as a cause of action, he says.

Had Jackson filed an administrative complaint with the Department of Education rather than taking his case immediately to federal court, the dispute may have long ago been resolved through mediation rather than litigation. That's because Congress armed the administrative process with a powerful weapon - the mandate that all federal funding be cut off to any institution that engages in sex discrimination.

"No one has ever cut off the funding of a school under Title IX," Mr. Joseph says. But he notes that there is little chance the Birmingham school district would have fought Jackson's retaliation claim had that threat become clear.

The claim for back pay is only a couple thousand dollars a year for a basketball coach. In contrast, the cost of litigating an issue all the way up to the US Supreme Court and potentially through a full trial would probably cost several hundred thousand dollars and perhaps more than $1 million, Joseph says.

In his brief, Joseph argues that if Jackson wants to enforce the Department of Education's regulation against retaliation in his federal court case, he must comply with the entire regulatory process, which includes first filing an administrative complaint.

Such a complaint would put the school district on notice of a potential problem and open the door to a relatively inexpensive negotiated settlement prior to any legal action taking place.

But Joseph says that even had the coach filed administratively, it remains unclear whether the Department of Education could use its antiretaliation regulation as legal justification to cut off a school's federal funding.

"They certainly have the authority to entertain it," he says. "The question is whether they have the authority to enforce it."

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