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In a second case this term, the U.S. Supreme Court will examine whether a major federal civil rights law provides greater protection than is apparent on the face of the statute itself. The high court today will hear arguments over whether Title IX, the 1972 federal law prohibiting sex discrimination by educational institutions and programs receiving federal funds, also prohibits retaliation, not only against victims of discrimination who speak out, but against third parties, such as coaches, who complain on behalf of their students. The case, Jackson v. Birmingham Board of Education, No. 02-1672, arises out of a claim by Roderick Jackson, a high school girls’ basketball coach, that his team had significantly worse facilities and resources than the boys’ team had. Jackson, shortly after complaining, started receiving poor evaluations and lost his coaching job, but he kept his tenured teaching position. Although Title IX is at the heart of the challenge, the Jackson case has potentially broad ramifications. Congress modeled Title IX after Title VI of the 1964 Civil Rights Act, which prohibits discrimination on the basis of race, color or national origin in all programs and activities receiving federal funds. If the justices decide that Title IX’s prohibition against sex discrimination does not encompass acts of retaliation, civil rights scholars and other legal experts believe that retaliation also will not be recognized under Title VI. And, some experts add, other civil rights statutes, whose broadly stated bans against discrimination have been interpreted to include retaliation, also may be affected. For the justices, the Jackson challenge is the second time this term in which they have been asked to examine the reach of a civil rights statute whose language is either silent or ambiguous on questions that are key to the statutes’ enforcement. In Smith v. City of Jackson, Miss., No. 03-1160, which has already been argued, the high court will decide whether disparate-impact claims — claims that an employer’s facially neutral policy adversely affects older workers — can be brought under the federal Age Discrimination in Employment Act. The Title IX question is “very important,” said Charles Craver of George Washington University Law School, “because if somebody raises an issue of discrimination, under almost all civil rights laws you have an anti-retaliation provision. All of the policy reasons that I can see weigh in favor of providing similar protections to make sure there is unimpeded access to the courts.” Three-time Olympic Gold medal winner Nancy Hogshead-Makar, a law professor at Florida Coastal School of Law who does a lot of Title IX work, said that the big picture is that prohibiting retaliation is essential to achieving the goals of Title IX and Title VI. The little picture is what actually happens in educational institutions, said Hogshead-Makar, who filed an amicus brief supporting Jackson on behalf of the Women’s Sports Foundation. “I counsel every athlete I speak to that if they do file a discrimination claim, they should expect retaliation,” she said. Retaliation is discrimination, she said, and Title IX must prohibit it against sex-discrimination victims and third parties who complain on the victim’s behalf. The best person to complain is the coach, she said, who has access to budgets and resources, but who often is vulnerable because he or she may not be a union member and may not have tenure. “If the coach is not protected by a claim for retaliation, his or her voice is muted,” said Hogshead-Makar. However, Kenneth L. Thomas of Birmingham’s Thomas, Means, Gillis & Seay, counsel to the Birmingham Board of Education in the Jackson case, disagreed. “In the school board setting, you’ve got all kinds of checks and balances,” he said. “In schools, you have the director of athletics; then there is the director of high school athletics. You have board meetings twice a month. Last year, the Birmingham School District had two state girl championships.” If there were discrimination, he said, the girls would go home and complain to their parents and, “I promise you the superintendent’s phone is going to jump off the hook.” Jackson, who brought his own appeal, unsuccessfully, to the 11th U.S. Circuit Court of Appeals, has drawn high-powered help for the Supreme Court. The National Women’s Law Center, one of the strongest champions of Title IX, is representing him, and former Acting Solicitor General Walter Dellinger of O’Melveny & Myers will argue his case. The law center’s Marcia Greenberger, backed by the Department of Justice, the National Education Association and others, argues that Title IX’s broad ban on sex-based discrimination includes retaliation — one variant of sex discrimination. She and the Justice Department contend that that interpretation is in accord with Sullivan v. Little Hunting Park Inc., 396 U.S. 229 (1969), which found retaliation covered by the broad discrimination ban in 42 U.S.C. 1982. Sullivan involved a third-party complaint by a white person about race discrimination in real estate against a black person, they emphasized. It was decided three years before Congress enacted Title IX and, they added, Congress is presumed to have known about the ruling when it enacted Title IX. Greenberger and her supporters also rely on two regulations — issued by the departments of Education and Justice — which state that retaliation violates Title IX. Those regulations, they argue, are due deference by the court. “If you allow schools in the case of Title IX and other federal-fund recipients under other civil rights law to retaliate, you are effectively allowing them to do by the back door what they’re not allowed to do by the front,” said Jocelyn Samuels, the center’s vice president. But Thomas, supported among others by the National School Boards Association and six states, contends retaliation is not mentioned in Title IX’s text. And finding an implied cause of action for retaliation in Title IX, he argues, would be contrary to what the high court requires of Congress when it enacts laws, such as Title IX, pursuant to the spending power clause. “The court has made very clear that when Congress legislates under the spending clause it must be very precise about what the recipients of federal funds are getting into in taking the money,” said Alabama Solicitor General Kevin C. Newsom. “The Birmingham school board would not have had any reason at the time to know it was exposing itself to monetary liability and attorneys’ fees for the retaliatory conduct of its employees.” A decision is expected by July.

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