Does Title IX Prohibit Retaliation Against Coaches Who Point Out Sex Discrimination?
By JOANNA GROSSMAN
Tuesday, Nov. 30, 2004
Today, the Supreme Court will hear oral argument in Jackson v. Birmingham Board of Education. In the case, Roderick Jackson -- formerly a basketball coach at a public high school -- alleges that he was removed from his coaching position in retaliation for his complaint that the school discriminated against female athletes. The Court will decide whether - assuming these allegations are true - he can bring a Title IX lawsuit.
The question the case raises is an intriguing one. Title IX is a federal statute that targets sex discrimination, including sex discrimination in athletics, when committed by public institutions, or private institutions receiving federal funding. But the coach does not argue that he himself was the victim of such discrimination; rather, he says he suffered retaliation for reporting discrimination against his team members. Can he still sue?
The case is interesting for two main reasons. First, the position of the United States is unusual. Solicitor General Theodore Olson has often taken positions hostile to discrimination claims -- and even positions contrary to those of the Equal Employment Opportunity Commission (EEOC), the federal government's main anti-discrimination enforcer. But here, the brief of the United States strongly sided with Coach Jackson by arguing that Title IX does allow retaliation claims.
Second, as I will explain, the case may determine how difficult - or straightforward - it will be to enforce equality within federally funded educational institutions. Can coaches and teachers report sex-based inequalities without fear? The Court will soon tell us.
Coach Jackson's Allegations: Blatant Violations, And Retaliatory Termination
In 1999, when Coach Jackson began working for the high school at issue, he observed some severe inequities in the treatment of male and female athletes. The girls car-pooled to games; the boys took a team bus. The girls practiced in a nearly-century-old gym without heat; the boys practiced in the new arena where both the boys and girls played their games. The girls - unlike the boys -- shot into smaller-than-regulation hoops, with bent rims and no fiberglass on the backboards. Finally, unlike the boys, the girls had no access to the expense account.
It seems clear, assuming Coach Jackson's allegations are true, that the girls on the team could have brought a Title IX suit. Title IX has long been applied to correct inequities in athletic programs at the high school and collegiate level. And most lawsuits brought by girls' athletic teams under Title IX have, at their heart, just the kind of disparity in resources that Coach Jackson observed.
One might have thought, then, that the high school would have thanked Coach Jackson from saving it from litigation - by pointing out its blatant violations of federal law. Instead, Coach Jackson says the school responded to his complaint by removing him from his coaching position.
(As a tenured physical education teacher, he retained his job. Since then, he has since been reinstated as an interim coach, but still seeks return his coaching position on a permanent basis.)
Title IX: The Statute and A Few Key Precedents
Title IX offers only a basic, broad prohibition against sex discrimination by covered educational institutions. But promulgations by the relevant agency -- the Office for Civil Rights (OCR) in the U.S. Department of Education (DOE) - and judicial decisions have filled in Title IX's gaps - specifying what constitutes a violation and who can sue to protest a violation.
In Cannon v. University of Chicago, the Supreme Court ruled that victims of Title IX violations - that is, victims of sex discrimination by schools receiving federal funding - can sue the school. (By saying discrimination victims - not just the government - can sue, the Court recognized what the law calls an "implied right of action.") Then, in Franklin v. Gwinnett County Public Schools, the Court held that the remedy in such a suit can encompass money damages, not just, for instance, a court order directing a school to equalize resources.
Significantly, the court reached both holdings despite the fact that the statute is silent on both issues. Now the Supreme Court must address more questions as to which the statute is silent: Can a suit allege retaliation for complaining about sex discrimination, instead of - or in addition to - discrimination itself? And if so, must the person who complains, and suffers retaliation, also be a discrimination victim?
Let's consider these questions in order.
Does Title IX Protect Against Retaliation in the First Place?
The Supreme Court will undoubtedly hold that Title IX's ban on discrimination includes a ban on retaliation. The legislative history, the text of the statute, administrative regulations, and the general rule that such bans are part-and-parcel of nondiscrimination laws make this outcome not only inevitable, but correct.
Retaliating against someone for complaining about discrimination furthers the discrimination itself, and is thus inextricable from the illegal conduct. Conversely, if retaliation is not separately illegal, Title IX's guarantees will be very difficult to enforce - for anyone who complains may anticipate paying a costly price.
Congress had evidence of widespread instances of retaliation against women in educational institutions who had complained about sex discrimination, in a variety of forms, on campus. Against that backdrop, it enacted Title IX. Retaliation unfortunately remains a common practice, and nondiscrimination statutes must be construed to prohibit it.
Imagine a scheme in which Congress banned discrimination, but permitted violators to punish with impunity those who tried to enforce the law. Any female student who asked why her team had to practice in a dilapidated gym could be cut from the team; or have her entire team cut from the school's budget. In the end, such a law would not provide much meaningful protection against the discriminatory acts it intended to prohibit.
Examples like these show that retaliation must be covered by Title VII.
The Solicitor General of the United States took this position, when asked by the Court to brief this issue. (He did, however, leave open the possible that statutes other than Title IX may evidence Congress's intent to omit a prohibition on retaliation. In other words, in the S.G.'s view, statutory bans on discrimination don't always include an implied retaliation claims - but Title IX's does.)
DOE regulations also take the position that Title IX prohibits retaliation. And a 1969 Supreme Court case, Sullivan v. Little Hunting Park, Inc. provides strong support. In Sullivan, the Court noted that broad statutory bans on discrimination are generally construed to prohibit retaliation as well. The statute at issue there was Title VIII - a fair housing statute prohibiting race discrimination.
Sullivan's clear rule might seem to be the end of the matter: Title IX prohibits discrimination and therefore, under Sullivan, it prohibits retaliation as well. However, a 2001 Supreme Court decision, Alexander v. Sandoval - which I discussed at greater length in a previous column - is arguably to the contrary.
Interpreting Alexander v. Sandoval: Is It Relevant Here?
In Alexander, the Court was interpreting Title VI -- which is a parallel statute to Title IX. (While Title IX bans sex discrimination by federally funded educational entities, Title VI bans discrimination by a broad variety of federally funded entities.)
The Court held that regulations recognizing a "disparate impact" theory of discrimination (that is, a theory based on unequally severe impact on a protected group) were invalid. That specific holding is not on point here.
But the Court, in Alexander, went on, more generally, to suggest that courts may not imply private rights to sue without clear Congressional intent. Again, that holding is not directly on point here. Unless the Court opts to overrule its own precedents -- in Cannon and Franklin -- it's plain that Title IX does imply a private right to sue, at least for victims of discrimination who sue for discrimination's harms.
Alexander might be read even more broadly, however, to suggest the Court ought to adopt the narrowest possible construction of a statute's implied right of action. And that holding might arguably be on point here: Some might argue that opting for the narrowest possible construction rules out any claim but a simple discrimination claim.
But there's a problem with that argument: Since Sullivan, it's been the norm that a right to sue for discrimination is coupled inseparably with a right to sue to sue for retaliation for reporting discrimination. So it seems that once a right to sue exists for Title IX, a right to sue for retaliation ought to follow, as the proverbial carriage does the horse.
Moreover, Title IX was enacted after Sullivan, when Congress should have known this "horse-and-carriage" rule - and thus, Congress can be assumed to have intentionally included retaliation by not omitting it.
For all these reasons, the Court - despite Sandoval - is very likely to hold that Title IX does, indeed, encompass retaliation.
That leads to our second question: Does it encompass retaliation against a non-victim - such as Coach Jackson?
Does Title IX Prohibit Retaliation Against Non-Discrimination-Victims?
DOE regulations specifically ban retaliation against both victims of Title IX violations and anyone who complains about such violations. These regulations, thus, would cover Coach Jackson.
But are these regulations invalid under the statute? Put another way, does the statute limit retaliation only to discrimination victims?
Congress's intent to effectively prevent discrimination cuts strongly in favor of the holding that there is no such limitation. If only young students - including high school students, who are minors - can report discrimination without fear of retaliation, discrimination may well continue. Young female athletes - especially high school girls - may assume discrimination is the way of the world, and be unaware of their rights, or how to enforce them.
In contrast, coaches and teaches have the kind of comparative view - and Title IX savvy - to see inequalities, and the confidence and access to speak out against them. Unless, that is, they may legally lose their jobs for doing so. In its brief, the United States argued: "Teachers and coaches are often in a much better position to identify sex discrimination and express opposition to it than are the students who are denied equal educational opportunities."
Nevertheless, the high school that removed Coach Jackson from his position contends that Title IX does not protect reports of discrimination by coaches and others.
To begin, it claims that coaches are not harmed by discrimination against the players they coach - but that is simply incorrect: What coach would prefer to teach a team with markedly lesser resources, and even non-standard equipment? Could that team win the victories necessary to help the coach's reputation and resume?
The defendant also argues that an "indirect" victim such as a coach cannot bring a Title IX claim, because whatever consequence he suffered was not "because of sex"--a requirement spelled out in the statute. But this claim, too, is unpersuasive
Granted, it's possible that if a school retaliated against all complainers equally, then its retaliation would not be "because of sex"; it would be pursuant to a general anti-complainer stance.
But schools tend to pick their battles - and it seems Coach Jackson's school, according to his allegations, was no exception. There, the school allegedly retaliated against a single complainer who was complaining about intentional sex discrimination.
In such a situation it would be entirely fair to conclude he was retaliated against "because of sex." He claims that his complaint of sex discrimination, in particular, raised the school's hackles and caused it to retaliate.
By comparison, imagine a white coach who complains that his public high school gave white students new uniforms, but makes African-American students wear last year's - and got removed from coaching. Plainly, his removal would be "because of race."
The Supreme May Limit Retaliation Claims, Even As It Supports Them
While the Supreme Court, as I have noted, is very likely to interpret Title IX to allow retaliation claims, it's possible it will also limit those claims in some way.
It might, for instance, require - though the law gives it no basis to do so -- that the underlying discrimination be proven to violate the statute, before the complainer can recover damages for retaliation.
The Court may also follow the S.G.'s lead in hedging a bit on this particular case. In particular, it might limit its ruling to Title IX - leaving for the future the question whether other statutes also allow suits for retaliation claims. It might also, for instance, require a case-by-case assessment of whether retaliation is "because of sex."
Such limitations, if imposed, would be misguided. Nevertheless, the decision in Jackson will be a significant victory for equality in school athletics as long as the Court recognizes the right to sue for retaliation, however it may limit that right.