Justices Ask for U.S. Views On Title IX Case
By Caroline Hendrie
Education Week

Washington -- Do school employees who say they were retaliated against for complaining about unequal treatment of students have the right to sue under the federal law barring sex discrimination in schools?

That question is raised in a lawsuit brought by an Alabama high school girls' basketball coach that the U.S. Supreme Court is now considering whether to take up. The court signaled its interest in the Alabama case last week by asking the Bush administration for its views on whether to accept the appeal in Jackson v. Birmingham Board of Education (Case No. 02-1672.)

The action came Oct. 6, the first day of the court's new term and the same day the justices declined to consider appeals of several other lower-court rulings of concern to educators.
At the center of the case is Roderick L. Jackson, who claimed in a 2001 suit against the Birmingham, Ala., school district that he was stripped of his paid coaching duties and given negative job evaluations after complaining that his female players at Ensley High School were being deprived of facilities and funding on a par with the boys' basketball program.

Mr. Jackson, 38, who is still a tenured health and physical education teacher at Ensley High, alleges that his treatment by the district violated Title IX of the Education Amendments of 1972, which prohibits discrimination based on sex in any education program receiving federal funding.

In upholding the dismissal of his case by a federal district judge in Montgomery, Ala., a three-judge panel of the U.S. Court of Appeals for the 11th Circuit, in Atlanta, held unanimously that Mr. Jackson had no right to sue under Title IX. The court cited the Supreme Court's 2001 decision in Alexander v. Sandoval that Congress never meant for a federal law barring race-based discrimination to allow people to sue over practices that are neutral on their face but have a "disparate impact" on protected groups. ("Civil Rights Ruling Could Affect Education Bias Cases," </ew/ewstory.cfm?slug=33scotus.h20> May 2, 2001.)

Mr. Jackson said he fears that if the 11th Circuit court's ruling stands, other educators will be discouraged from coming forward about various kinds of discrimination in schools.
" People will say, 'I won't say anything because see what happened to old Jackson,'" he said in an interview last week. "I'm very prayerful that [the justices] will accept it because all Americans deserve the same access to educational opportunities."

Given the Sandoval decision, the Birmingham district is confident that if the high court accepts the case, it will rule that Congress did not intend Title IX to provide a right to sue for alleged "reprisal discrimination," especially not by third parties, said Kenneth L. Thomas, a lawyer for the 34,500-student district.

" We take the position that because Congress was silent on that issue, that they can't sue," Mr. Thomas said.

But lawyers from the Washington-based National Women's Law Center, who represent Mr. Jackson, argue that the 11th Circuit court misapplied Sandoval in the coach's case. They also say the 11th Circuit court's ruling conflicts with decisions on the issue by two other federal circuit courts, and that a Supreme Court decision is needed to guide enforcement of Title IX nationwide.

" Our position is that if you're prohibiting discrimination, you're also prohibiting retaliation. You can't separate the two," said Dina R. Lassow, a lawyer at the center.

Wrestlers' Appeal Pinned

In a separate case involving gender discrimination in athletics, the Supreme Court let stand a ruling that upheld a California college's decision to cut players from its wrestling team in the interests of complying with Title IX as interpreted by the federal Department of Education.
According to court papers, California State University- Bakersfield had made the cuts as part of an effort to bring its numbers of male and female athletes into balance with the school's undergraduate enrollment, which is about 64 percent women.

The wrestlers argued in their lawsuit that Title IX should not be seen as requiring such proportionality, and that schools should instead link athletic opportunities to the levels of interest among male and female students in participating in school sports. But the U.S. Court of Appeals for the 9th Circuit, in San Francisco, rejected that view, overturning a lower-court decision in favor of the wrestlers. The high court declined last week to hear the wrestlers' appeal in Neal v. Board of Trustees of California State University (No. 03-32).

The Neal case is among several recent cases arguing that the Education Department's interpretation of Title IX has unfairly hurt male athletes. Last June, a federal judge in Washington threw out a suit brought against the department by the National Wrestling Coaches Association and wrestling teams at three universities.

Title IX recently was the subject of a major review this year by the Bush administration, which elected to leave the department's regulations and enforcement program largely unchanged. ("After Long Title IX Review, Agency Makes No Changes," </ew/ewstory.cfm?slug=43titleix.h22> Aug. 6, 2003.)