Supreme Court Broadens the Scope of Title IX

Those that were concerned about the reach of Title IX in the wake of last week's Policy Clarification (here, here, here) can rejoice today. The Supreme Court held today, with Justice O'Connor writing, that Title IX not only protects girls and women who might be victims of discrimination, but also those who seek to enforce its guarantee of equal treatment. In Jackson v. Birmingham BOE, the Court ruled that a male high school basketball coach that was fired for complaining about the lack of funding for his women's team should be able to bring a lawsuit under Title IX.

The decision seemed to come down to one fundamental question: How should statutes be read? The majority believes that statutes should be read broadly, taking into consideration the context in which they were passed and the believed policy goal of Congress. The dissent, on the other hand, takes the position that these factors are subservient to the actual language of the statute, which the Court must follow as the only indicator of Congressional intent. Which of these positions you agree with also determines whether you will agree with the decision in Jackson.

Title IX states that, "No person in the United States shall, on the basis of sex, be...subjected to discrimination under any education program or activity receiving Federal financial assistance..." (20 USC s.1681). The majority opinion states that Title IX has always been "construed broadly" to prohibit intentional discrimination based on gender and that the retaliation Jackson claims to have been subject to is clearly a form of intentional discrimination. The Court also found it important that the statute was passed three years after the decision in Sullivan v. Little Hunting Park, which implied a right of action for retaliation in a different anti-discrimination statute (42 USC s.1982). Perhaps most importantly, the Court held that Title IX applies to Jackson, a male coach.

The statute is broadly worded; it does not require that the victim of the retaliation must also be the victim of the discrimination that is the subject of the original complaint. * * * Where the retaliation occurs because the complainant speaks out about sex discrimination, the "on the basis of sex" requirement is satisfied. The complainant is himself a victim of discriminatory retaliation, regardless of whether he was the subject of the original complaint.

For the Court, this broad construction of Title IX is the only way to ensure the policy goals of the statute, to prevent gender discrimination, are protected.

The dissent takes a very different view and sees the majority as ignoring the law in order to reach a desired result. In the eyes of the dissenting Justices, providing a right of action for retaliation is the role of Congress, and Congress must "speak unambiguously" to subject recipients of federal funds to potential liability. Using numerous examples, the dissent claims that Congress has not done so in this case. The opinion argues that retaliation is not discrimination "on the basis of sex." Jackson suffered no discrimination; he was fired for complaining about potential discrimination. For the dissenting Justices, this is too far removed from the purposes of Title IX to allow such a claim without specific Congressional authorization. The fact that the word "retaliation" does not even appear in Title IX, when Congress has specifically authorized such claims in other statutes, indicates a desire to exclude it. For the dissent, allowing such a claim creates a "prophylactic enforcement mechanism" that Title IX does not support.

The most interesting part of these opinions is how they largely ignore administrative remedies (i.e., taking away part of the school's funding). Although discussed at length in the oral argument (see transcript here), the Court seems to indicate that the only plausible enforcement mechanism is private lawsuits. This potentially can be justified because of the largely individual nature of retaliation, but it nevertheless is alarming to those who are concerned about the proliferation of litigation. For statutes that deal with federal funding, administrative remedies need to serve as an efficient deterrent or else plaintiff's attorneys will dictate the anti-discrimination policies of our country. If the current administrative remedies are too draconian, or conversely, too weak, then they should be re-examined so as to remain a plausible alternative, or even substitute for, private litigation.

The full opinion can be found here.
For the briefs and other links about the case, click here.

Posted in: