A landmark gender equity law should protect people who report complaints of discrimination, the Supreme Court was told Tuesday as it heard arguments in the case of an Alabama coach fired when he protested the unequal treatment of his girls’ high school basketball team.
“This is vital to promoting the purposes of the act,” said government attorney Irving L. Gornstein, referring to the Title IX law best known for promoting women’s athletics.
The Bush administration is supporting the position of the coach, Roderick Jackson, who lost his job in 2001 after repeatedly asking the Birmingham Board of Education to provide his team a regulation-size gym with basketball rims that weren’t bent — just like the boys’ team had.
Jackson then sued to get his job back permanently along with lost wages under the Title IX law.
At issue is whether Congress intended to allow lawsuits by those who complain of gender bias — even if they are not direct victims — when it passed the 1972 law barring discrimination in any educational program receiving federal funds.
Justices appeared divided along ideological lines, with Ruth Bader Ginsburg and other liberal members expressing concern that barring suits like Jackson’s would deter discrimination complaints. Justice Antonin Scalia and his more conservative colleagues suggested Congress never intended that.
Schools fear lawsuit flood
Kenneth Thomas, a lawyer representing the Birmingham school board, argued that the word ’retaliation’ is never mentioned in the statue. To allow whistleblowers, regardless of their sex, to sue would open school districts to a wave of lawsuits that lawmakers never intended.
“Don’t we have to consider congressional intent?” he asked.
Marcia Greenberger, Jackson’s attorney, said on ABC’s “Good Morning America” that he was trying to protect the rights of the girls to equal treatment with boys and should not have been punished for speaking out.
“What’s at stake in this case — which affects everyone around the country in the area of athletics and in every type of educational arena — is, can somebody try to enforce Title IX by simply speaking out and bringing to the attention of school officials violations of the law without being punished?” she said.
The lower courts in the case ruled against Jackson, noting that Title IX is silent on the matter. But other federal courts have reached an opposite conclusion in similar cases, reasoning that coaches and teachers are better positioned to report discrimination than students.
Along with having access to information such as funding decisions, coaches are “more likely to have the courage and maturity necessary to make charges of discrimination and withstand the criticism that may follow,” the Bush administration writes in a friend-of-the-court brief backing Jackson.
Broad interest from rights groups
Jackson’s case has drawn wide interest, with support from a coalition of 180 civil rights groups including the NAACP, the American Civil Liberties Union and the American Federation of Teachers, as well as dozens of women’s advocacy groups.
Opposing Jackson are the National School Boards Association as well as Alabama and eight other states, who fear a wave of lawsuits claiming retaliation that they say Congress never intended.
The eight other states are Delaware, Hawaii, Nevada, Oregon, South Dakota, Tennessee, Utah and Virginia. They argue in part that Jackson could have sued under the First Amendment or other civil rights laws, but not Title IX.
“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,” the National School Boards Association writes in its friend-of-the-court filing.
Unlike colleges and universities, public high schools are not required under federal law to disclose data on how they are funding their athletic programs. As a result, monitoring of these programs — of which 42 percent of the participants are girls — is largely left to school boards and activists, advocates say.
Alabama school specifics
For Jackson, the disparities between the girls’ and boys’ teams were immediately apparent after he started work at Ensley High School in 1999.
Besides using an old gym with no heat, the girls sometimes rode to games in teachers’ and parents’ cars while the boys always used a bus, and the girls’ team didn’t get any money from ticket or concession sales.
After pushing for changes in letters and meetings with school officials, Jackson said his job evaluations soon got worse, and he was removed as coach in May 2001. He remained on the payroll as a teacher.
Jackson eventually was rehired last year as coach on an interim basis, and the old gym now has two new, regulation-sized hoops. Birmingham school officials have declined to say why he was initially removed.
The case is Jackson v. Birmingham Board of Education, 02-1672.