Can a School Retaliate Against a Coach Who Complains
About Its Unfair Treatment of Female Athletes? The Supreme Court May Well Decide

By JOANNA GROSSMAN


lawjlg@hofstra.edu
----
Tuesday, Oct. 21, 2003

Roderick Jackson, a former girls' high school basketball coach, believed his school was treating his team unfairly because of their sex. So he raised his concern with the school - only, he says, to face illegal retaliation.

Last May, Jackson sought Supreme Court review in his case. And earlier this month, the Court gave a strong sign it may grant review - by requesting a brief from the Solicitor General laying out the position of the United States.

If Jackson's team was indeed treated unfairly as compared to boys' teams, the School probably violated Title IX of the Education Amendments of 1972. (Title IX is a broad-ranging federal statute banning sex discrimination by educational institutions receiving federal funding.) But what about the school's retaliation against Jackson? Was that also illegal?

Let us hope the courts - and the Supreme Court, if it takes the case - say yes. Protection against retaliation is an essential part of making an anti-discrimination law effective.

Jackson's Complaint and the Decisions Below

In 1993, Jackson began coaching the girls' basketball team at Ensley High School in Birmingham, Alabama. He alleges that his team was denied equal funding and equal access to sports facilities and equipment, as compared with the boys' teams at the same school. Jackson also alleges that he complained to his supervisors about the discrimination.

After complaining, Jackson began receiving negative performance evaluations, and was finally removed from his coaching position. (Jackson continues to hold a tenured position as a physical education teacher at the school.) He says that his removal from coaching was retaliatory.

The Birmingham School Board has claimed in court that even if Jackson is right, he has no case. It argues that Title IX does not create a "private right of action" for retaliation--that is, even if the school retaliated, the statute does not allow Jackson to sue it for damages, or even prohibit the school from retaliating in this way.

The trial court and the U.S. Court of Appeals for the Eleventh Circuit both agreed with the school board.

The Settled Law of Title IX: The Statute and the Supreme Court Decisions

Title IX states that "no 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."

Title IX also creates an administrative enforcement scheme. Pursuant to that scheme, the Office for Civil Rights in the Department of Education can bring complaints against recipients, investigate the charges, and make findings of non-compliance and impose appropriate remedies or penalties.

Title IX does not, however, specify what types of behavior constitute unlawful discrimination. Nor does Title IX list categories of discrimination that fall within its parameters. But over time, the courts have made clear what some of those categories are: violations of equal athletic opportunity; sexual harassment (both teacher-student and student-student); pregnancy discrimination; and more.

Title IX also does not say whether individuals have the right to sue recipient schools directly for violations. But the Supreme Court said they do long ago, in Cannon v. University of Chicago, and later made clear, in Franklin v. Gwinnett County Public Schools, that the suit can be for money damages. It thus implied a private right of action into Title IX.

The First Open Question in Jackson: Does Title IX Make Retaliation Illegal?

All this is settled. But two questions still remain open, and the Jackson case raises them.

The first issue is this: Does Title IX prohibit not only sex discrimination itself, but also retaliation against those who complain about sex discrimination? A federal regulation bans retaliation under Title IX, but some argue that the regulation exceeded the statute's authority - and the Eleventh Circuit apparently holds that position.

In so holding, the Eleventh Circuit relied upon the Supreme Court's 2001 decision in Alexander v. Sandoval. There, the Supreme Court was interpreting Title VI, a federal antidiscrimination statute very similar to Title IX.

The Eleventh Circuit read Sandoval to suggest that the courts may not imply rights of action without clear Congressional intent, and that no such intent exists under Title IX, at least with respect to prohibiting retaliation.

Other courts, however, have strenuously disagreed - noting that, as I discussed above, the Supreme Court has repeatedly found Title IX to possess implied rights to sue for violations of the statute. At least two federal appellate courts have held that Title IX can - and does - prohibit retaliation. Federal district courts have contradicted the Eleventh Circuit's reasoning as well.

Supreme Court precedents also contradict the Eleventh Circuit's dismissal of Jackson's suit on other grounds. In addition to the decisions cited above, the Court has long recognized that prohibitions against retaliation go hand-in-hand with prohibitions on intentional discrimination.

Accordingly, the Court has implied bans on retaliation even when they are not explicit. As a result, virtually every federal anti-discrimination statute other than Title IX either explicitly bans retaliation, or has been interpreted by courts to ban it. As to Title IX, the jury (or at least the Supreme Court) is still technically out - but it's clear the verdict should be in favor of a right to sue for retaliation.

For these reasons, the School Board is likely to lose before the Supreme Court on this first issue. (Indeed, the Solicitor General may oppose the School Board on this point. In a recent case before the U.S. Court of Appeals for the Fourth Circuit, the U.S. filed an amicus curiae - friend-of-the-court - brief arguing that Title IX creates a right to sue for retaliation.)

The Second Open Question in Jackson: Can Coaches Sue For Retaliation?

That brings us to the second issue: What if Title IX prohibits retaliation but the person who complains is not the victim? (For instance, Jackson says he complained that the girls on his team were victims of discrimination.) Can that person still sue for damages?

There is less precedent on this issue, but what the answer should be is clear: Jackson and other coaches should be allowed to sue.

Remember, we are dealing with high school students, who are mostly minors, and college students who are, at most, young adults. Unless their coaches and other authority figures can contest discrimination - and do so without fear of retaliation - that discrimination may persist. Students may not have the courage necessary to take on an educational institution; but coaches may.

Students also may lack the essential information about funding and opportunities that would lead them to discover a school's violation of Title IX. In contrast, coaches are uniquely well-suited to notice a recipient school's discriminatory behavior. They see budget allocations, observe facilities, and, most importantly, talk to other coaches at the school. They would be the first, in most cases, to notice unequal treatment of boys and girls.

Coaches are also better suited to lodge complaints against the institution than their relatively powerless athletes are. Many of them have tenure (though that did not protect Jackson's coach status, as it turned out). And even if they do not have job security, they are more likely, with the perspective of adulthood, to see the importance of standing up for what's right, even at great personal cost.

Finally, a coach is hardly a distant third party when a school discriminates against his or her player (despite the Eleventh Circuit's description of him as "thrice-removed" from the sex discrimination). Discrimination hurts the coach too: It affects the quality of players he or she can attract; the success of the team; and, in turn, the coach's own reputation, pay, and opportunities for better positions.

Why the Supreme Court May (and Should) Take the Case

As noted above, the Supreme Court's request for a brief from the Solicitor General suggests it may take this case. It should do so. Not only is there a "circuit split" - in which appellate courts disagree - but the issue is a very important one.

Unless the Eleventh Circuit's opinion is reversed, the consequences will be devastating. Retaliation is a fact of life - for the urge to get back at someone who accuses you of wrongdoing is a powerful human instinct. Recognizing these realities, many laws ban retaliation against those who complain or assist in their enforcement.

It's a good thing they do so - for statistics suggest there is a great deal of retaliation. For example, the Equal Employment Opportunity Commission - which is charged with implementing Title VII's ban on workplace discrimination - once estimated that over a quarter of its entire docket involved claims of retaliation.

Sadly, retaliation tends to follow discrimination just as the cart follows the horse.

Within the world of athletics, it is particularly important that retaliation be recognized as an unlawful act. Emotions run strong on the issue of gender equity in athletics--especially when changes to programs for men and boys are seen as a result of Title IX's mandate of equality. As a result, reprisals against whistleblowers are likely, and those individuals must have protection. Otherwise, there is a severe disincentive to report violations - and that significantly undermines the statute's protections against discrimination.

Let's hope the Supreme Court agrees to weigh in on these important issues --and that, if and when it does, it gets it right. Coaches like Roderick Jackson who speak up when they believe their girls' teams face sex discrimination should be applauded - not demoted.


Joanna Grossman, a FindLaw columnist, is an associate professor of law at Hofstra University. Her other columns on discrimination issues, and Title IX in particular, may be found in the archive of her columns on this site.

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