Title IX under fire

I often write about Title IX (see October 2003 columns Equity or Equality and Punting on Title IX), the gender equity law best known for promoting women’s athletics in public schools and colleges.

It is a fascinating law both in its scope -- it has spawned the careers of world-class athletes such as Lisa Leslie and Mia Hamm -- and applicability: for instance, Radford University has a track team and offers female runners full athletic scholarships.

A case now before the U.S. Supreme Court, Jackson v. Birmingham Board of Education, will either dramatically extend or restrict the limits of Title IX enforcement.

Roderick Jackson is an Alabama basketball coach who was fired in 2001 for repeatedly asking the Birmingham Board of Education to provide his girls basketball team with a heated, regulation-size gym with rims that were not bent and a bus to transport the girls to their games. He also wanted his team to share in money from ticket and concession sales.

The school board provided the boys basketball team with all of these amenities

After pushing for these changes in letters and meeting with school officials, his evaluations got worse and he was removed as coach in May 2001. However, he remained on the payroll as a teacher and was rehired on an interim basis as the girls basketball coach last year. Jackson is suing to permanently get his coaching job back and recover lost wages under the Title IX law.

The legal issue is not whether the Birmingham Board of Education was in violation of Title IX (it clearly was) but whether Congress intended to protect whistleblowers in gender bias cases -- even when they are not the direct victims -- when it passed the 1972 law barring discrimination in any educational program receiving federal funds.

Both district and appeals courts ruled against Jackson, noting that Title IX is silent on the issue of retaliation for reporting gender bias. But other federal courts have reached the opposite conclusion in similar cases, reasoning that coaches and teachers are in a better situation to report bias than students.

These other court are correct. The Bush administration, in a friend-of-the-court briefing backing Jackson, noted that “along with having access to information about funding decisions, coaches are more likely to have the courage and maturity to make changes in discrimination and withstand the criticism that may follow.” Jackson also has garnered support from 180 civil rights, teacher and women’s advocacy groups.

Opposing Jackson are the National School Boards Association, Alabama and eight other states (including, regrettably Virginia). The NSBA, in its court brief, stated, “Litigation against school boards represents a diversion of scarce resources and a distraction from their mission of academic achievement that the nation’s schools can ill afford.”

What baloney.

If Birmingham parents, instead of Jackson, had sued for Title IX violations, it would have been a slam dunk victory and those “scarce resources” would have been paid in damages to the victims.

What the NSBA wants is to allow schools to do indirectly what they can’t do directly: stop a complaint by the gatekeepers (coaches and teachers) of Title IX with the threat of dismissal. A ruling by the Supreme Court to uphold this position would clearly undermine the purposes of the act.

Moreover, this logic is totally at odds with the strict liability that teachers face for ignoring sexual harassment. In Davis v. Monroe County Board of Education, the high court found that the teacher, principal and school board were all liable for not taking seriously a fifth grader’s reports of sexual harassment by a male classmate. Title VII, Title IX’s counterpart in the workplace, has established that supervisors and EEO officers who know of sexual harassment are liable if they don’t actively intervene to stop the gender discrimination.

The Supreme Court’s recent ruling in Pennsylvania State Police v. Nancy Suders reinforces this legal standard. Under one of these legal guidelines, Jackson would have been immune from retaliation for reporting gender bias and (under the other standard) he would have been liable for not reporting the incidents of sexual discrimination. Here, he reports gender discrimination, is fired for his efforts, and told he has no legal recourse under Title IX. What gives?

His opponents say he should file for relief because of a First Amendment speech infringement, not Title VII violations. As a public employee, he has First Amendment protections when speaking out on issues in “the public interest.” The opponents are right but “mixed motive” terminations (wherein a public employee’s right to speak on issues is protected but is fired for other reasons) are hard to prove in court. Indeed, the Birmingham Board of Education has never said with any specificity why Jackson was fired in the first place.

Justice Ruth Bader Ginsburg, as director of the ACLU’s Women’s Rights Project, made her legal reputation by filing U.S. Supreme Court briefs that were designed to dismantle institutional sexual discrimination. The Jackson situation is a classic case of institutional bias where a supposed benign classification (not protecting the whistleblower) can essentially gut the law. During oral arguments in the Jackson case, she expressed concern that barring suits like Jackson’s would deter Title IX gender discrimination complaints. Conversely, Justice Antonin Scalia suggested that Congress never intended to protect whistleblowers under Title IX.

Justice Ginsburg’s position will prevail in the Jackson case. Look for a 6-3 decision in favor of Jackson this spring with a strong dissent from the Scalia/Thomas/Rehnquist right-wing of the court.

Look also for a black eye for Virginia Attorney General Jerry Kilgore for backing such a position concerning Title IX enforcement.