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For more than 30 years, the law known as Title IX has protected young women from discrimination in athletic programs at schools receiving federal funds. On Tuesday, the Supreme Court debated whether the law also protects a man � in this case, the coach of a girls’ high school basketball team � who says he was punished for complaining about unequal treatment for his team. Justices seemed divided over whether third-party retaliation is within the scope of Title IX, or whether the threat of withdrawing federal funds from school districts is a strong enough weapon to discourage the punishment of whistleblowers like Roderick Jackson of Birmingham, Ala., whose case the Court considered. Jackson was relieved of coaching duties, but not his tenured position as a teacher, in May 2001 after he complained to supervisors about Ensley High School’s inadequate facilities for female athletes. He sued, but the U.S. Court of Appeals for the 11th Circuit ruled in 2002 that Title IX does not provide a cause of action to redress retaliation. Title IX advocates, joined by the Bush administration, say it is essential for the vitality of the law to allow whistleblowers to sue for retaliation, because victims of the discrimination themselves � sometimes grade-school girls � are often not in a position to know or complain about the inequalities they are enduring. “This is of vital importance in promoting the purposes of the act,” Irving Gornstein, assistant to the solicitor general, told the justices Tuesday in oral arguments in Jackson v. Birmingham Board of Education. “Title IX is violated by the retaliatory actions against coach Jackson,” said former Solicitor General Walter Dellinger III, who argued on Jackson’s behalf, calling retaliation claims “part and parcel” of a law aimed at ending gender discrimination. “We are not asking the Court to create or infer any new cause of action,” insisted Dellinger, now a partner at O’Melveny & Myers in Washington, D.C. Justice Antonin Scalia said allowing such suits could be “very disruptive,’ because it could lead to abuses by coaches for girls’ teams. Coaches could immunize themselves from ever being fired, Scalia suggested, by complaining about inferior facilities for girls from the outset. Fearing retaliation claims, school boards would then not fire girls’ coaches. Dellinger appeared to gain ground when he replied to Scalia’s point by noting that federal regulations implementing Title IX have, since their creation, prohibited retaliation and not led to the abuse Scalia posited. “This is not a novel concept,” said Dellinger. The regulations do not explicitly allow for lawsuits by those who claim retaliation, and federal appeals courts have divided over the issue. But Scalia repeatedly noted that in recent years the Court has “sworn off” recognizing implied rights of action not explicitly mentioned in statutes. For that reason, Scalia suggested, even if retaliation claims were once allowed, they no longer should be. Justice Sandra Day O’Connor and other justices wondered about administrative remedies under the law. Dellinger and Gornstein said that in the history of Title IX, no school had ever lost its federal funds as punishment for a violation. O’Connor also seemed concerned about how the precise words of the law could be applied to Jackson, who, she said, “was not discriminated against because of his gender.” Justice Stephen Breyer seemed to be answering O’Connor when he said that under civil rights laws covering racial discrimination, both the black person who was refused service at a lunch counter and a white compatriot who was also refused service would have legitimate claims. Lawyers for the Birmingham school board and the state of Alabama told the Court that no matter what policy considerations are involved, the words of Title IX do not allow for retaliation claims. Kevin Newsom, Alabama’s solicitor general, said the “heavy lifting” of Title IX enforcement is done not through lawsuits but administratively � including threats by the federal Department of Education to pull funding. School board lawyer Kenneth Thomas, of Thomas, Means, Gillis & Seay in Birmingham, also said administrative remedies were more than enough to take care of the inequalities cited by Jackson. From his own experiences, Thomas said, when the Education Department’s Office of Civil Rights calls about a Title IX complaint, school officials listen. Asked how often the federal agency called Birmingham over a Title IX complaint, Jackson said he could recall only two occasions in recent years. “But they were very memorable,” he said.

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