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In a case involving girls’ basketball, an unheated gym, and a determined high school coach, the scope of whistleblowing protections under the civil rights laws is on the line this term. The Supreme Court will hear oral argument in Jackson v. Birmingham Board of Education on Tuesday. The justices must decide whether Title IX of the 1972 Education Amendments, which generally prohibits gender discrimination in education, supports a private right of action for those facing retaliation for making a complaint under the statute. For plaintiffs who find themselves in Coach Roderick Jackson’s situation, the Court should recognize a cause of action. Recognition will carry out Congress’ intent to promote gender equality in public education. The previous appellate ruling against Jackson reveals a fundamental misunderstanding of the damage that gender discrimination inflicts. SIDELINING THE COACH The Birmingham, Ala., school board had hired Jackson as a physical education teacher. In 1999, he also became coach of the high school girls’ basketball team. According to his complaint, Jackson discovered that the girls’ team was being denied equal funding and equipment. He alleged (as reported in local news accounts) that the school disbanded the girls’ junior varsity team while preserving the boys’ team, denied the girls’ team the same share of money raised at the ticket window and concession stand, and forced the girls to practice on a small court with wooden backboards, crooked rims, and no heat. Jackson reported these disparities to his superiors. According to his complaint, instead of correcting the situation, they gave him negative work evaluations. Ultimately, Jackson was relieved of his coaching duties in May 2001. The District Court dismissed Jackson’s complaint, and the U.S. Court of Appeals for the 11th Circuit affirmed the dismissal. The 11th Circuit held that Jackson had no right of action based partly on the absence of express language in Title IX creating an action for retaliation and partly on its conclusion that Jackson was not a direct victim of gender discrimination. In dismissing the complaint, the 11th Circuit created a split with the 5th Circuit, which in Lowrey v. Texas A&M University (1997) had recognized a retaliation cause of action in a similar Title IX case. In arguing against Jackson, the Birmingham school board notes that in Alexander v. Sandoval (2001), the Supreme Court declared its general hesitancy to create a private right of action where Congress did not clearly do so. Although the regulations promulgated by the Department of Education to enforce Title IX forbid retaliation, the plain language of Title IX itself does not expressly create a cause of action for retaliation — or even a private right of action against direct gender discrimination, for that matter. The 11th Circuit distinguished an earlier Supreme Court case, Cannon v. University of Chicago (1979), which established that, notwithstanding the language, a private right of action exists under Title IX. But the plaintiff in Cannon was a direct victim of gender discrimination, noted the 11th Circuit, whereas Jackson was only an indirect beneficiary of Title IX. ONLY AS GOOD AS ITS REMEDIES Despite these textual arguments against Jackson, the Supreme Court should recognize an implied right of action to help carry out the important purposes of Title IX. The United States has already joined Jackson’s team, with the solicitor general filing an amicus brief on his behalf. Over the last three decades, Title IX has been a valuable tool in the struggle for women’s rights. Although perhaps best known for increasing girls’ participation in sports, the statute broadly prohibits gender discrimination in educational programs that receive federal financial assistance. But a statute is only as good as the remedies it provides. It will be exceedingly difficult to continue the fight against gender discrimination in athletics or other educational programs without protection for those who make complaints. Without the possibility of legal recourse for retaliation, whistleblowers will be even more reluctant to step forward. Knowing that they could be punished with impunity for making a complaint, coaches and teachers might rationally decide to stay silent in the face of gender discrimination. This is surely not the result that Congress intended, and the Court should not read the statute in such a limited way. The cause of action for retaliation finds solid ground in congressional intent, in the accompanying Education Department regulations, and in the Court’s precedent in Cannon. The 11th Circuit’s insistence on dividing gender discrimination plaintiffs into “direct” and “indirect” victims artificially creates statutory discord where there is none. Worse, it misconceives the harm that gender discrimination inflicts. If Coach Jackson was given negative job reviews because he was willing to stand up for equal opportunities for female athletes receiving worse treatment than male athletes, surely he is another victim of that discrimination. If Jackson were a woman, would this case have gone all the way to the Supreme Court, or would the lower courts have recognized that his punishment was a form of gender discrimination? On some level, is the school board’s real argument that Jackson should be denied recovery because he is male? By now, it should be obvious that gender stereotypes and discrimination harm and limit men as well as women, and discrimination law should not (and does not) limit protection against retaliation to those in the same protected category as the immediate victims. In this particular context, the reasons for protecting coaches, teachers, and school administrators from retaliation are especially compelling because they — unlike the students whom the statute expressly protects — are authority figures. They have more institutional power and, as mature adults, are more familiar with legal rights than students are and thus may be better able to assert those rights. If a teacher can be punished with impunity for raising Title IX concerns on behalf of students, how many students — particularly minors — who observe this retaliation would be willing to speak up themselves? To bar a cause of action for retaliation could lead to a real failure to enforce the right to equality. A HAPHAZARD PATCHWORK Jackson’s case also illustrates a broader problem — the haphazard protections the law grants to whistleblowers. Although many federal statutes include whistleblower protections, many others contain no such guarantees. For example, if a private sector employee reports a violation of nuclear safety regulations, that individual would be protected against retaliatory acts because the statutes regulating nuclear energy include an anti-retaliation provision (the nuclear whistleblower protection at 42 U.S.C. §5851). If, on the other hand, the statute is not one of those that contain an express anti-retaliation provision, such as the Endangered Species Act, then the job of a whistleblower reporting a violation of that statute to supervisors or enforcement officials is on shaky ground, depending on state laws, which are uneven. In such a patchwork scheme, too many whistleblowers can fall through the cracks. Whistleblowers not only risk their jobs, but, studies show, are likely to face ostracism from co-workers, resistance from family members, and increased risk of depression. Because much law enforcement depends on those with knowledge of wrongdoing being willing to come forward and make reports, mistreatment of whistleblowers leads to haphazard enforcement of our federal laws. Whistleblower advocates continue to lobby Congress to provide a general federal cause of action for private-sector employees who are fired after blowing the whistle on a violation of federal law. Such a blanket anti-retaliation provision would effectively incorporate whistleblower protection in all federal legislation, so that protection would no longer depend on the vagaries of the language in any given statute. Although the outcome of the legal case is not a slam dunk, Coach Jackson and others like him who act ethically to end gender discrimination should receive the law’s full protection. Miriam A. Cherry is a professor at Samford University’s Cumberland School of Law in Birmingham, Ala. She teaches employment law, feminist jurisprudence, and contracts.

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