Jackson v. Birmingham Board Is a Bit of a Throwback

The United States Supreme Court has ruled that it is unlawful discrimination, in violation of Title IX of the Educational Amendments of 1972, 20 U.S. C. §1681(a), for a public high school to punish a male coach for complaining that the school’s athletic program discriminated on the basis of sex against the girl basketball team he coached.

Jackson v. Birmingham Board of Education, 2005 WL 701076 (Mar. 29, 2005).

The Court’s opinion addresses several significant legal issues related to access to federal courts, but the case is remarkable in great part because Title IX, in authorizing a private cause of action against discrimination “on the basis of sex...under any education program...receiving Federal financial assistance,” is silent about retaliation. Both the District Court and the Eleventh Circuit Court of Appeals had ruled against the plaintiff/coach on that ground.Coach Roderick Jackson began complaining in December, 2000, that the girls’ team was not receiving equal funding or equal access to athletic equipment and facilities, and that this hampered him in his work. Rather than address Jackson’s complaints, school officials began giving him negative evaluations, then removed him as the girls’ basketball coach in May, 2001. He remained employed as a teacher.

Jackson filed suit, asserting that the school board’s actions constituted unlawful retaliation against him, in violation of Title IX. After losing before the District Court and then at the Eleventh Circuit Court of Appeals, Jackson sought certiorari. The writ was granted because of an existing split between the circuits as to whether Title IX’s private right of action encompasses claims of retaliation in response to complaints about sex discrimination.

Writing for the majority on behalf of herself and Justices Stevens, Souter, Ginsburg, and Breyer, Justice O’Connor wrote that, “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 right of action.” This conclusion was based on the propositions that: (1) prior case law, i.e., Cannon v. University of Chicago, 441 U.S. 667 (1979), has already made clear that Title IX implies a private right of action to enforce its prohibition against intentional sex discrimination; (2) Congress gave Title IX a “broad reach”; (3)“discrimination” is a broad term covering a wide range of intentional unequal treatment; (4) “retaliation is, by definition, an intentional act;” and (5) “retaliation is discrimination ‘on the basis of sex’ because it is an intentional response to the nature of the complaint: an allegation of sex discrimination.” The Court acknowledged that §704 of Title VII of the Civil Rights Act of 1964 expressly prohibits retaliation, but did not view Title IX’s lack of similar anti-retaliation language as indicating congressional intent to shield those who retaliate from liability under Title IX. Title VII is a “vastly different” statute from Title IX. In particular, “Title IX is a broadly written general prohibition on discrimination, followed by specific, narrow exceptions....By contrast, Title VII spells out in greater detail the conduct that constitutes discrimination in violation of that statute.”  Thus, “Because Congress did not list any specific discriminatory practices when it wrote Title IX, its failure to mention one such practice does not tell us anything about whether it intended that practice to be covered.” In the course of its opinion, the Court touched on several issues affecting access to federal courts. These include:

Implied right of action - Decisions in recent years have weakened this once robust, apparently essential, doctrine to the point of near morbidity. Thus the majority’s reliance on the doctrine as declared in the 1972 Cannon decision is remarkable, perhaps even heartening. This is particularly so in light of the conclusion that the broad language of Title IX bestows a private right of action even upon such an “indirect victim” of sex discrimination as Coach Jackson. If nothing else, the Court’s attempt to interpret the statute with an eye toward what is necessary to carry out the purpose of the legislation (e.g., “Reporting incidents of discrimination is integral to Title IX enforcement and would be discouraged if retaliation against those who report went unpunished.”), rather than by insisting that Congress must have foreseen the issue and declared expressly that Coach Jackson has a right to enforce a claim of retaliation, supplies a touch of nostalgia.

The sweep of Alexander v. Sandoval - The Court rejected the Birmingham, Alabama school board’s contention that Alexander v. Sandoval, 532 U.S. 275 (2001), another case which arose in Alabama in the days of Attorney General William Pryor, compelled a conclusion that Title IX’s private right of action does not encompass retaliation. The Court explained that its refusal in Sandoval to enforce disparate impact regulations promulgated under Title VI of the Civil Rights Act of 1964 was based merely on its conclusion that the statute itself did not prevent such conduct, so the disparate impact regulation was beyond the Department of Justice’s enforcement authority under that statute. In the instant case, the Court emphasized, it was relying not on a regulation but on the statute itself as establishing the right of action.

Notice requirements for Spending Clause legislation - Also noteworthy is the ease with which the Court cast aside the board’s reliance on the rather recent case law principle that as to legislation enacted by Congress under its spending power, “private damages actions are available only where recipients of federal funding had adequate notice that they could be liable for the conduct at issue.” In this instance, the Court responded, the requirement is met because, “Funding recipients have been on notice that they could be subjected to private suits for intentional sex discrimination under Title IX, since we decided Cannon.”  

What does all this mean? - It would be naive to assume that this case bespeaks the beginning of a change of direction in federal rights issue. In particular, it must be understood and remembered that the dissent by Justice Thomas, joined by Chief Justice Rehnquist and Justices Scalia and Kennedy, contests every point in the majority decision. Thus the case may stand primarily for the already known truths that Justice O’Connor is quite sensitive to the need for effective enforcement of prohibitions against gender discrimination, and that with the present makeup of the Court, the swing voters, Justices O’Connor and Kennedy, continue to play a crucial balancing role.