Thank you for sharing!

Your article was successfully shared with the contacts you provided.
Title IX is best known for its impact in achieving gender equality in college athletics. But its scope goes beyond athletics to cover gender discrimination in all kinds of federally assisted education programs and activities. A women’s rights group, joined by the U.S. Department of Justice, is asking the Supreme Court to review a case that could expand Title IX even further to protect those who complain about gender bias but are not victims themselves. On June 10 during its private conference, the Court is scheduled to consider whether to grant review in dozens of cases including Jackson v. Birmingham Board of Education, No. 02-1672, which was first filed more than a year ago. At issue is whether Title IX allows a private right of action for someone who suffered reprisals for complaining about unlawful sex discrimination. The petition was filed by the National Women’s Law Center (NWLC) on behalf of Roderick Jackson, a girls’ high-school basketball coach in Alabama. He sued the Birmingham Board of Education, alleging that he was removed in 2001 from his coaching position in retaliation for complaining that his team was being denied equal funding and equal access to sports facilities and equipment. His case was dismissed at the district court level for failure to state a claim, with the judge finding that Title IX does not prohibit retaliation. Jackson appealed, but the U.S. Court of Appeals for the 11th Circuit agreed with the lower court. Judge Stanley Marcus delivered the 11th Circuit’s unanimous opinion, basing most of the court’s judgment on the Supreme Court’s 2001 ruling in Alexander v. Sandoval. That ruling held that Title VI of the Civil Rights Act of 1964 — which prohibits discrimination by recipients of federal aid — does not provide an implied cause of action for cases of disparate impact. The appeals panel reasoned that under Sandoval, the Supreme Court would not possibly entertain a private claim of illegal retaliation under Title IX. The 11th Circuit opinion states also that in the absence of explicit statutory language, Congress did not intend Title IX to cover such cases of retaliation. Marcia Greenberger, co-president of the NWLC, filed the petition on behalf Jackson and has been joined in the case by former acting Solicitor General Walter Dellinger III, now with the D.C. office of O’Melveny & Myers. In October, the Court asked the solicitor general to state the government’s views on the case. In a brief filed last month, Solicitor General Theodore Olson agreed with the NWLC, urging the Court to review the case and to ultimately decide in Jackson’s favor. Title IX, which bans gender discrimination, does not specify what types of behavior constitute unlawful discrimination. As a result, lower courts have had to determine what categories of discrimination are within the scope of Title IX and are therefore prohibited. In the 1979 case Cannon v. University of Chicago, the Supreme Court found that although Title IX does not explicitly allow a private right of action, such a right is implicit for direct victims of gender discrimination. Otherwise, the Court reasoned, individual citizens would be without “effective protection” against practices made unlawful by Title IX. But the Court has yet to rule on whether retaliatory conduct falls into the category of practices prohibited by Title IX or whether the law was intended to cover individuals who were not direct victims of gender discrimination. The NWLC argues that the 11th Circuit was incorrect in its analysis of Title IX. Although Title IX does not expressly prohibit retaliation, the NWLC’s brief states that an implied right of action against retaliation does exist when considering the “legislative history and context within which [Title IX] was passed.” Evidence can be found in the congressional hearings that Congress intended for retaliation to be prohibited by Title IX, the brief asserts. “This is not a novel argument,” says Jocelyn Samuels, vice president for education and employment at the NWLC. “In fact, the Court has recognized that other anti-discrimination statutes inherently prohibit retaliation.” Moreover, the NWLC claims that, in addition to Title IX’s implied right of action, an anti-retaliation regulation promulgated by the Department of Education under the statute further bolsters its contention. The U.S. government brief agrees with the NWLC: “Congress would have understood that, by prohibiting sex discrimination in federally funded educational programs, it was simultaneously forbidding recipients from retaliating against persons who complain about that form of discrimination.” The NWLC stresses that the Court should make room for Jackson on its docket, as the lower courts are in conflict over the issue. The issue presented in this case “squarely divides the federal courts of appeals and is critical to effective enforcement of Title IX,” writes the NWLC in their petition to the Supreme Court. The U.S. Court of Appeals for the 5th Circuit in the 1997 decision in Lowrey v. Texas A&M University System — a strikingly similar case — held that the plaintiff, a women’s athletic coordinator who was removed in retaliation for complaints about disparate treatment of male and female athletes, did have a cause of action for retaliation under Title IX. “[I]ndividuals in the Fifth Circuit may sue for retaliation under Title IX; those in the Eleventh Circuit may not,” says the NWLC. “That conflict by itself warrants the court’s intervention.” In its reply brief, lawyers for the Birmingham Board of Education counter that the 11th Circuit was correct in its holding, citing Alexander v. Sandoval as precedent and binding authority. “ Sandoval established that Title IX, the statutory twin of Title VI, did not create an implied right of action that exceeds the scope of the express statutory right,” states the opposing brief, filed by Kenneth Thomas of Thomas, Means, Gillis & Seay in Birmingham, Ala. “Nowhere in the text of the statute is there even a hint that alleged victims of retaliation . . . are also protected.” The brief does not directly respond to the NWLC’s argument that review should be granted in light of the circuit split over the issue. OTHER CASES UP FOR REVIEW • Roeder v. Islamic Republic of Iran, No. 03-1147. Whether Congress must make a “clear statement” of its intent to annul or repeal an executive agreement that is unratified. • Anaheim, Calif. v. Drummond, No. 03-1268. Whether police officers’ weaponless restraint of an unresisting arrestee that resulted in the arrestee’s vegetative state was a violation of the 14th Amendment. • Castellano v. Fragozo, No. 03-1269. Does a Section 1983 malicious prosecution claim exists under the Fourth Amendment? • Healthplan Services Inc. v. Gunnells, No. 03-1282. Whether a class in a class action can be certified only if common issues predominate over individual issues in the action. • Hall v. United States, No. 03-1294. Whether an overt act is an element of conspiracy to commit money laundering under 18 U.S.C. §1956(h). • Cox v. Larios, No. 03-1413. Whether a Georgia redistricting plan is unconstitutional if it produces small deviations (less than 10 percent) and/or treats incumbent politicians of one party more favorably than the other. • Muehler v. Mena, No. 03-1423. Whether a search warrant gives police the right to detain an arrestee in handcuffs at gunpoint for two or three hours while the police search the premises. This column seeks to identify cases on the Supreme Court’s conference agenda that are leading candidates for Supreme Court review or that raise significant national issues. Thomas Goldstein of Washington, D.C.’s Goldstein & Howe selects these cases from the many petitions filed based on several factors, including whether lower courts have split on the issues presented. He does not otherwise participate in the preparation of this column. Legal Times intern Beth Hanson contributed to this report.

This content has been archived. It is available through our partners, LexisNexis® and Bloomberg Law.

To view this content, please continue to their sites.

Not a Lexis Advance® Subscriber?
Subscribe Now

Not a Bloomberg Law Subscriber?
Subscribe Now

Why am I seeing this?

LexisNexis® and Bloomberg Law are third party online distributors of the broad collection of current and archived versions of ALM's legal news publications. LexisNexis® and Bloomberg Law customers are able to access and use ALM's content, including content from the National Law Journal, The American Lawyer, Legaltech News, The New York Law Journal, and Corporate Counsel, as well as other sources of legal information.

For questions call 1-877-256-2472 or contact us at [email protected]

Reprints & Licensing
Mentioned in a Law.com story?

License our industry-leading legal content to extend your thought leadership and build your brand.


ALM Legal Publication Newsletters

Sign Up Today and Never Miss Another Story.

As part of your digital membership, you can sign up for an unlimited number of a wide range of complimentary newsletters. Visit your My Account page to make your selections. Get the timely legal news and critical analysis you cannot afford to miss. Tailored just for you. In your inbox. Every day.

Copyright © 2021 ALM Media Properties, LLC. All Rights Reserved.