Supreme Court Decides That Retaliation Is an Actionable Claim Under Title IX
 
June 14, 2005
 

Roderick Jackson v. Birmingham Board of Education, 125 S. Ct. 1497 (2005)

Overview

In a decision that expands the risks faced by recipients of federal financial assistance, including colleges and universities, the U.S. Supreme Court ruled that individuals can sue under Title IX if they suffer retaliation for complaining about gender discrimination. Roderick Jackson v. Birmingham Board of Education, 125 S. Ct. 1497 (2005). The Court reinstated the suit of a high school basketball coach who claimed that the Birmingham Board of Education removed him as girls’ basketball coach in retaliation for his complaint that the girls’ team did not receive resources equal to those received by the boys’ team. The Court reached this conclusion even though Title IX does not expressly prohibit retaliation or grant individuals a right to sue.

Legal Background

Title IX prohibits any activity or program receiving federal financial assistance from discriminating against individuals based upon their gender, but does not specifically prohibit retaliation for complaining about gender discrimination. The Department of Education has issued a regulation enforcing Title IX that provides that no entity receiving federal financial assistance can “intimidate, threaten, coerce, or discriminate against any individual for the purpose of interfering with any right or privilege” secured by Title IX. Title IX permits any federal department or agency to investigate and enforce compliance with the statute; however, it does not specifically grant individuals the right to sue recipients of federal financial assistance for violations of Title IX.

In the 1979 case of Cannon v. University of Chicago, 441 U.S. 677 (1979) the U.S. Supreme Court ruled that despite Congress’ failure to specifically grant individuals a right to sue under Title IX, Congress intended such a right, and individuals who believed they suffered gender discrimination could sue in federal court under Title IX. Since the Cannon decision, the U.S. Supreme Court has become more restrictive about granting rights to sue under a statute where Congress did not expressly create one. For example in Alexander v. Sandoval, 532 U.S. 275 (2001), the Supreme Court refused to allow a private court suit to enforce Department of Justice regulations interpreting Title VI (which prohibits race, national origin and religious discrimination by recipients of federal financial assistance) to prohibit disparate impact discrimination. The Court stated that it could allow a private suit only if Congress had expressed such an intention, not because the Court thought a private suit would help enforcement of the law. Without such congressional intent, “a cause of action does not exist and courts may not create one, no matter how desirable that might be as a policy matter, or how compatible with the statute.” Id. at 286.

Background Facts

In 1993, Roderick Jackson became employed by the Birmingham Board of Education (the Board) as a physical education teacher. In 1999, Jackson was transferred to Ensley High School, where he served as basketball coach for the girls’ team. Jackson complained to superiors that the girls’ team did not receive as much funding as the boys’ team, and did not have equal access to sports facilities and equipment. After making these complaints, Jackson began receiving negative evaluations and eventually was relieved of his coaching duties in 2001.

Jackson sued the Board in federal court, claiming that the Board had retaliated against him for complaining about gender discrimination in a federally funded program in violation of Title IX, and its accompanying regulation promulgated by the Department of Education, 34 C.F.R. 100.7(e).

The United States Court of Appeals for the Eleventh Circuit rejected Jackson’s claim. It first noted that Jackson had not complained about sex discrimination against himself and was not within the class protected by Title IX. The Court further ruled that Title IX did not give plaintiffs such as Jackson a right to sue in court, as opposed to complaining to the administrative agency. Relying on Sandoval, the Court concluded that nothing in Title IX suggested a congressional intent to allow a party to sue based on a claim that he suffered retaliation for protesting discrimination against others, and the Court therefore could not authorize such a claim.

Supreme Court Decision

The Supreme Court disagreed and ruled that even though Title IX does not specifically prohibit retaliation, an individual may sue under Title IX based on a claim that he suffered retaliation for complaining about gender discrimination against others. The Court first concluded that Title IX prohibited the kind of retaliation Jackson alleged, because “retaliation falls within the statute’s prohibition of intentional discrimination on the basis of sex.” In reaching this conclusion, the Court relied on its decision in Sullivan v. Little Hunting Park, Inc., 396 U.S. 229 (1969), where the Court ruled that a white property owner could sue under the Civil Rights Act of 1866 for retaliation that was triggered because he complained about discrimination against his black tenant. The Court concluded that as Sullivan was decided only three years before Title IX was enacted, Congress likely intended that retaliation would violate Title IX. “Retaliation for Jackson’s advocacy of the rights of the girls’ basketball team in this case is ‘discrimination’ ‘on the basis of sex,’ just as retaliation for advocacy on behalf of a black lessee in Sullivan was discrimination on the basis of race,” the Court reasoned.

Because the Court had previously recognized in Cannon that an individual can sue for intentional discrimination on the basis of sex, it followed that the individual could sue for retaliation, “another form of intentional sex discrimination” prohibited by Title IX.

Plaintiff Need Not Be the Direct Victim of Discrimination

The Board argued that Jackson should not be able to sue because he did not complain about gender discrimination directed at him and thus could not show discrimination “on the basis of sex.” The Court disagreed. It noted that Title IX prohibits discrimination “on the basis of sex,” and not “on the basis of such individual’s sex.” When an individual suffers retaliation for speaking out about sex discrimination, the “on the basis of sex” requirement is satisfied, the Court ruled. The individual complaining about sex discrimination is himself a victim of discriminatory retaliation, regardless of whether he was the subject or direct victim of the underlying discrimination. Because the statute is broadly worded, it does not specifically require that the victim of retaliation must also be the victim of the underlying discrimination.

Further, one of the objectives of Title IX is to provide individuals with effective protection against discriminatory practices. A teacher and coach such as Jackson is often in the best position to recognize and protest discrimination. If recipients of federal financial assistance could freely retaliate against those such as Jackson who report gender discrimination against their students or team members, Congress’ intent to prohibit such discrimination would be thwarted, the Court reasoned.

Finally, the Court concluded that its 1979 Cannon decision gave funding recipients sufficient notice that they could be liable for the kind of retaliation claim Jackson asserted. “Funding recipients have been on notice that they could be subjected to private suits for intentional sex discrimination under Title IX since 1979, when we decided Cannon.” “A reasonable school board would realize that institutions covered by Title IX cannot cover up violations of that law by means of discriminatory retaliation, the Court concluded.”

Four justices dissented from this ruling. First, they noted that there was no evidence that Congress intended Title IX to cover retaliation. Second, they argued that because a valid retaliation claim does not require proof of underlying sex discrimination (but merely a reasonable belief that sex discrimination has occurred), it is not discrimination on the basis of sex. Third, they noted that Jackson was not complaining about sex discrimination against himself, and so could not show that he suffered discrimination “on the basis of sex.” Finally, the dissenters disputed that a recipient of federal financial assistance would have been on notice that Title IX prohibited the kind of retaliation Jackson alleged.

Significance

The Jackson decision was a surprise legally but not practically. As a legal matter, the Supreme Court has recently stated that it should not allow individuals to sue under a federal statute unless Congress has specifically authorized such a suit. Jackson conflicts with that trend. As a practical matter, however, the decision is not surprising. Coaches such as Jackson are often the ones in the best position to recognize the kind of discrimination Title IX is supposed to prohibit – such as fewer resources or facilities allocated to women’s teams. Unless such individuals can report discrimination without fear of retaliation, Title IX will not be as effective in stopping sex discrimination, the Court reasoned. Furthermore, recipients of federal financial assistance could not reasonably have believed they would be allowed to retaliate in that fashion, the Court concluded.

The Jackson decision means that recipients of federal financial assistance must be very careful about employment decisions they make concerning individuals who have complained about discrimination prohibited by Title IX. They must assume such an individual is protected from retaliation and that an adverse employment action will result in a Title IX retaliation suit. As a result, before taking adverse employment action against such an individual, federal funding recipients must ensure that any such decision is fully vetted, and should consult legal counsel.

For more information, e-mail Jolynn C. Caroline at jolynn.caroline@hklaw.com or call toll free, 1-888-688-8500.

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