Can gender related retaliation constitute discrimination in public education employment?
The Supreme Court redefines the parameters of Title IX in JACKSON v. BIRMINGHAM BOARD OF EDUCATION.
After the Ensley High School girls' basketball team suits up for practice, they head to less than ideal circumstances; their gym is old, well below regulation size, and unheated. In stark contrast, the boys at this Birmingham, Alabama school enjoy a brand-new athletic facility. Adding further insult, the school only provides the girls' team transportation to road games if the boys' team is also playing.
This appears to be a clear case of Title IX infringement. But after the girls' coach, Roderick Jackson, complained, he was relieved of his coaching duties. Jackson alleges that his dismissal was also an infringement of Title IX—and on March 29, 2005 the Supreme Court awarded Jackson the opportunity to prove his case.
Congress enacted Title IX as part of the Education Amendments of 1972 to prevent the use of federal money toward discriminatory practices. Indeed, Title IX specifically provides that "[n]o person in the United States shall, on the basis of sex, be excluded from participation in, be denied the benefits of, or be subjected to discrimination under any education program or activity receiving Federal financial assistance…" 20 U.S.C. § 1681(a) Thus, it ensures girls and boys equal opportunity to compete in sports—and equal school facilities in which to train and compete.
With their decision in Jackson v. Birmingham Board of Education, 2005 WL 701076(U.S.) the Supreme Court now extends Title IX to provide protection for individuals as well as groups. Ruling 5-4, the Court held that the victims of the discriminatory practices are not only those who are denied an equal opportunity, but any individual that reports the disparity and is then subjected to retaliation for their report.
Justice Sandra Day O'Connor, in her majority opinion, stated that Title IX "prohibits a funding recipient from subjecting a person to 'discrimination' on the basis of sex." Justice O'Connor went onto say that "[r]retaliation against a person because that person has complained of sex discrimination is another form of intentional sex discrimination encompassed by Title IX's private cause of action."
The School Board argued that Title IX did not provide a claim for retaliation, a point O'Connor conceded when writing, "Congress certainly could have mentioned retaliation in Title IX expressly."
The School Board further argued that Jackson was not the subject of the discrimination—and therefore could not be the victim of retaliation. The District Court for the Northern District of Georgia agreed as did the Court of Appeals for the Eleventh Circuit.
However, the Supreme Court held that the statute does not require a victim of retaliation to also be the subject of the original discrimination. "[Jackson] is also a victim of discriminatory retaliation, regardless of whether he was the subject of the original complaint," wrote O'Connor. The Court reasoned that "when a funding recipient retaliates against a person because he complains of sex discrimination, this constitutes intentional 'discrimination' on the basis of sex."
While Title IX does not specifically prohibit retaliation, the Court stated that the objective of Title IX "would be difficult, if not impossible, to achieve if persons who complain about sex discrimination did not have effective protection against retaliation." The Court articulated that sometimes an adult is the only person who can effectively champion the rights of the children to ensure that Title IX is properly implemented.
Justice O'Connor was joined in her opinion by Justice Stevens, Justice Souter, Justice Ginsburg and Justice Breyer.
Justice Clarence Thomas wrote the dissent; he was joined by Justice Rehnquist, Justice Scalia and Justice Kennedy.
Thomas reasoned that a literal reading of the statute does not provide for a claim of retaliation under Title IX. The dissent argued that Jackson did not make a claim based upon his own sex, therefore, he cannot make a claim that the decision to remove him was based upon his sex. The dissent also believed that Jackson could not make the causal connection, because his claim for retaliation was based on a complaint about sex discrimination, "not [on proof] that the sex discrimination underlying his complaint occurred."
Thomas sees this ruling setting dangerous precedents. He feels that the court majority "establishes a prophylactic enforcement mechanism designed to encourage whistle blowing about sex discrimination. The language of Title IX does not support this holding." He also anticipates an avalanche of broader suits. "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."
It is important to note that the Supreme Court's decision does not mean that Jackson was, in fact, discriminated against; it simply confirms that retaliation is a cause of action that exists under Title IX. Now Jackson is left with the task of proving his claims in the District Court—a court which has already rejected his case once. Because the claim was dismissed pursuant to Federal Rule 12(b)(6), no discovery has been conducted and the eventual outcome of this case will not be known for years. What is known, is that Supreme Court has significantly broadened the scope of Title IX.
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