Supreme Court weighs scope of gender-equity law

By The Associated Press
12.01.04

WASHINGTON — The Supreme Court considered yesterday whether a landmark gender-equity law shields people who report discrimination, hearing the case of an Alabama girls basketball coach who was fired after complaining that the boys were treated better.

In a case testing the scope of the Title IX law, Roderick Jackson used the statute as the basis for a lawsuit against the Birmingham Board of Education, claiming wrongful termination.

Jackson lost his coaching job in 2001 after repeatedly asking the Birmingham school officials to provide his team a regulation-size gym with basketball rims that weren’t bent — just like the boys’ team had. He remained on the payroll as a teacher.

Lawyers for the board contend that if the justices side with Jackson it will open the door to a flood of litigation.

Title IX prohibits gender discrimination in public and private schools that receive federal funding, which almost all do. It covers admissions, recruitment, course offerings, counseling, financial aid, student health and housing, as well as athletics.

At issue is whether Congress intended to allow lawsuits by people — regardless of their sex — who say they were punished for pointing out gender bias.

The Court appeared split along ideological lines.

Justice Ruth Bader Ginsburg — who was joined at times by liberal colleagues David Souter, John Paul Stevens and Stephen Breyer — pressed Birmingham School Board lawyer Kenneth L. Thomas on whether bias complaints would be fully aired if coaches and teachers could be fired without recourse.

When Thomas replied that plenty of complaints are reported and resolved voluntarily, Ginsburg interrupted.

“To say ‘trust me’ is not an answer,” she said, contending that discrimination victims often “call and call and get no response.”

“If we say to a school, you can’t retaliate, that’s a powerful tool to prevent retaliation and to force them to do something about discrimination,” Ginsburg said.

But Justice Antonin Scalia said expanding Title IX protections when the statute is silent on issues like Jackson’s would be unfair.

“In other statutes, when Congress does create a cause of action, it goes out of its way to create a cause of action for retaliation,” he said. “It’s fair to say when states signed on for funding, they should have known they would be subject to lawsuits.”

Lower courts in the case ruled against Jackson, noting that the Title IX statute doesn’t address the matter. But other federal courts have reached an opposite conclusion in similar cases, reasoning that coaches and teachers are better positioned to report discrimination than students.

Irving L. Gornstein of the Justice Department, which backs Jackson in the case, said allowing lawsuits like Jackson’s “is vital to promoting the purposes of the act.”

But Thomas argued that the statute never mentions the word “retaliation.” Allowing whistleblowers to sue — regardless of their sex — would open school districts to a wave of lawsuits that lawmakers never intended.

“Don’t we have to consider congressional intent?” he asked.

Jackson’s case has drawn wide interest, with support from a coalition of 180 civil rights groups including the NAACP, the American Civil Liberties Union and the American Federation of Teachers, as well as dozens of women’s advocacy groups.

Opposing Jackson are the National School Boards Association as well as nine states — Alabama, Delaware, Hawaii, Nevada, Oregon, South Dakota, Tennessee, Utah and Virginia. They argue in part that Jackson could have sued under the First Amendment or other civil rights laws, but not Title IX.

Unlike colleges and universities, public high schools are not required by federal law to disclose how they are funding their athletic programs. As a result, monitoring of these programs — of which 42% of the participants are girls — is largely left to school boards and activists, advocates say.

Jackson was rehired last year as coach on an interim basis, and the gym used by the girls now has two new, regulation-sized hoops.

The case is Jackson v. Birmingham Board of Education, 02-1672.


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