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When Eve Atkinson filed suit against Lafayette College in 2001, her case hinged on a novel theory – that she had been fired in retaliation for complaining about gender inequity in the funding of the college’s sports programs. Her lawyers – Alan B. Epstein and Jennifer L. Myers of Spector Gadon & Rosen – argued that the firing violated Title IX, the federal law that mandates equal access to sports programs. But U.S. District Judge Ronald L. Buckwalter held that Title IX does not allow for retaliation claims. Ultimately, Buckwalter dismissed the entire case, Atkinson v. Lafayette College, in 2003, including her Title VII and contract claims. Since then, however, the law has changed. Atkinson’s appeal to the 3rd U.S. Circuit Court of Appeals was put on hold when the U.S. Supreme Court took up a case that presented the same question. In 2005, the justices ruled 5-4 in Jackson v. Birmingham Board of Education that Title IX not only bans sex discrimination in schools receiving federal funds, but also protects whistleblowers who are punished for reporting bias. Justice Sandra Day O’Connor, writing for the majority, sided with plaintiff Roderick Jackson, the male coach of a Birmingham, Ala., girl’s basketball team, who claimed he was removed after complaining about inadequate funding for the girl’s program. “When a funding recipient retaliates against a person because he complains of sex discrimination, this constitutes intentional discrimination ‘on the basis of sex,’ in violation of Title IX,” O’Connor wrote. A ruling that did not protect whistleblowers would weaken the potency of Title IX, O’Connor said, because “if recipients were permitted to retaliate freely, individuals who witness discrimination would be loath to report it, and all manner of Title IX violations might go unremedied as a result.” O’Connor also found that teachers and coaches are often in the best position to “vindicate the rights” of their students. Now the 3rd Circuit has ruled that, in light of Jackson, Atkinson’s Title IX retaliation claim must be revived. Most of the court’s 20-page opinion is devoted to discussion of Buckwalter’s dismissal of Atkinson’s other claims, and the 3rd Circuit affirmed those rulings. But by reversing Buckwalter’s dismissal of the Title IX retaliation claim, the court revived the heart of Atkinson’s case. According to the suit, Atkinson was the first woman in the United States to hold the post of director of athletics of a combined men’s and women’s program at a school in the National Collegiate Athletic Association’s Division I level with an NCAA I-AA football program. She was also the president of the Eastern College Athletic Conference, the nation’s largest athletic conference, the suit said. Atkinson, who is now a physical education professor at Cheyney University, claimed that after she publicly spoke out against the unequal funding of men’s and women’s sports at Lafayette, she was physically threatened by a high-ranking administrator and that college officials did nothing about it. When she continued to press for equal funding for women, the suit said, she was suddenly informed that she was being fired after 12 years of service. In addition to the Title IX retaliation claim, Atkinson’s suit alleged sex discrimination claims under Title VII and a claim of breach of contract. Now the 3rd Circuit has ruled that Buckwalter correctly dismissed the Title VII and contract claims. Writing for the court, visiting Judge Tom Stagg of the Western District of Louisiana found that the language of Atkinson’s appointment letter was “clear and unambiguous” and that it “unequivocally provides that she was to serve at the pleasure of the president of the college and its board of trustees.” Epstein argued that the language referred only to Atkinson’s roles as director of athletics and head of the department, but not to her position as a professor for which she should be considered tenured. Stagg disagreed, saying Atkinson cannot “somehow claim to have received tenure by default, as Lafayette College’s provisions on tenure clearly do not allow tenure to occur simply by inaction.” Stagg’s opinion was joined by 3rd Circuit Judge Thomas L. Ambro. The late Judge Edward R. Becker also heard oral argument in the case, but died before the opinion was handed down. The court also held that Buckwalter had correctly dismissed Atkinson’s sex discrimination claim, finding there was no evidence that Atkinson’s gender played a role in the college’s decision to fire her. “Atkinson’s claims for sex discrimination appear to be focused upon her advocacy of Title IX issues, and are more appropriately considered as Title IX claims, which she will now have a chance to fully explore before the district court,” Stagg wrote. Lafayette College was represented in the appeal by attorneys John G. Harkins Jr. and Neill C. Kling of Harkins Cunningham. (Copies of the 20-page opinion in Atkinson v. Lafayette College , PICS No. 06-1132, are available from The Legal Intelligencer . Please call the Pennsylvania Instant Case Service at 800-276-PICS to order or for information. Some cases are not available until 1 p.m.)

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