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March 29, 2005
Supreme Court expands Title IX again
The Supreme Court today allowed a Title IX lawsuit go forward, issuing a decision that has some troubling implications for schools. AP coverage here. Ed Week here. This was the case brought by Birmingham, Alabama, teacher Roderick Jackson, who alleges that he was retaliated against for complaining that his girls' basketball team was getting shortchanged compared to the boys' team. Here's what BoardBuzz had to say when the case was argued in November.
The ruling
Writing yet another majority opinion in yet another 5-4 ruling expanding the reach of Title IX, Justice Sandra Day O'Connor basically decided that retaliating against someone for complaining about gender discrimination against somebody else is itself a form of intentional discrimination on the basis of sex. She discounted the school board's argument that Title IX does not expressly permit lawsuits over alleged retaliation, let alone by those who are not the victims of sex discrimination. Those retaliated against are direct victims of sex discrimination, the Court held.
Justice Clarence Thomas wrote the dissenting opinion, which noted that recent Supreme Court opinions had made clear that Congress must unambiguously authorize lawsuits under federal laws like Title IX. "Rather than requiring clarity from Congress," he wrote, "the majority requires clairvoyance from funding recipients."
The disagreement between the majority and the dissent really boils down to this question. The majority decided that because Title IX doesn't enumerate any particular legal claims at all, the more recent rule that the scope of lawsuits must be expressly delineated doesn't apply.
The issue
Marcia Greenberger of the National Women's Law Center, one of Jackson's lawyers, calls the decision "a slam dunk for everyone who cares about equal opportunity." Nice sound bite, but even if you accept her side's legal argument, this assertion is a bit silly. School boards and school administrators care about equal opportunity. NSBA supports Title IX. And incidentally, as former executive director of the American Association of University Women, NSBA Executive Director Anne Bryant is hardly unsympathetic to equity concerns.
The problem, of course, is lawsuits. The Court has created another new path to the courthouse for a new range of plaintiffs, even though Congress was silent on this question and even though Congress also provided a way for complainants to seek administrative enforcement from the federal government and spare everyone the cost of a lawsuit. As NSBA argued and Justice Thomas noted, nothing prevents parents and students from filing Title IX complaints about unfair treatment. Jackson's lawsuit, on the other hand, doesn't even ask for any relief for the girls: it seeks back wages and reinstatement as coach.
The future
More was at stake in this case than Title IX lawsuits. Of even greater concern to NSBA was how the Court's decision may be invoked to argue for new kinds of lawsuits against schools under other federal laws. On this point, there may be a silver lining of sorts: at least the Court does not appear to have endorsed outright the plaintiff's blanket argument that courts should infer that every other non-discrimination statute gives those who are not direct victims of discrimination a right to sue over alleged retaliation.
On the other hand, we'll have to watch what the lawyers and the courts do with this one. School boards should anticipate that plaintiffs' lawyers will attempt to argue that at least some of these other federal laws—those that may be silent on the questions of retaliation lawsuits or indirect victims—are like Title IX and that such lawsuits therefore should be permitted. Stay tuned.
Posted March 29, 2005 12:00 AM
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