Gender-equity case takes coach to highest court in the nation
By JAY REEVES, ST. Louis Dispatch, November 28, 2004
The Associated Press

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Objected to girls' facilities

BIRMINGHAM, Ala. - It didn't take long for coach Roderick Jackson to get tired of his girls basketball team practicing in the grimy little gym at Ensley High School, while the boys worked out in the nicer, newer one.

Built in 1908, the old gym was smaller than regulation, and its tan-and-white walls were covered with graffiti. The floor was slick, the hoops were the wrong size and the backboards were made of plywood, making it difficult for players to adjust to the Plexiglas ones used in games.

"There's not any bounce. It makes them throw it up there harder," Jackson said.

Jackson complained, and, he claims, was temporarily removed as coach for griping. He sued the Birmingham Board of Education under the landmark Title IX law, which bars discrimination in schools, but lower federal courts ruled against him.

Tuesday, the Supreme Court hears Jackson's case - a dispute asking whether Title IX protects people who blow the whistle on gender bias, regardless of their sex.

The Bush administration and a broad spectrum of civil rights groups are backing Jackson, while groups representing the school board and nine states are opposing him.

The Birmingham school board denies any discrimination and argues that Congress never meant for Title IX to cover people who say they suffered retaliation for reporting gender discrimination against others.

Jackson, 39, says he never thought so much would come of his concerns. "I've been in the system, I figured it'd be worked out," he said between classes. "But if you don't stand for something, you'll fall for anything."

And so he's become an unlikely champion of gender equity, traveling to Washington earlier this month to accept an award from the National Women's Law Center, which represents him in court.

He plans to attend the Supreme Court arguments, forcing him to miss a game for the first time in 18 years of volunteer and professional coaching.

He started work at Ensley High in 1999 and says the disparities between the girls and boys teams were soon clear.

Besides having to use the old gym, 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. Also, the school axed the girls' junior varsity team, while the JV boys kept playing.

"I thought it would get better," he said. "It didn't."

Jackson began pushing for changes, writing letters and meeting with school officials all the way up to a deputy superintendent. He said he was met mainly with indifference, and colleagues warned him about pushing the issue.

"They said, 'You better hush your mouth. You're making problems for yourself,'" Jackson said. "They weren't kidding."

Jackson said his job evaluations got worse, and he was removed as coach in May 2001, costing him nearly $7,000 annually in coaching pay. Because he had tenure, he kept teaching health and physical education.

Jackson sued under Title IX, claiming he lost the coaching position in retaliation for his complaints that the girls were victims of gender discrimination. A lower court threw out the case, agreeing with the board that the law doesn't cover retaliation claims.



Retaliation not mentioned
USA Today; 11/5/2004; Erik Brady

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Roderick Jackson says he was fired as girls basketball coach at Ensley High School in 2001 as retaliation for complaining of sex discrimination against his team. Kenneth Thomas, an attorney who represents the Birmingham Board of Education, says it isn't so.

Thomas says coaches serve year to year in Birmingham and can be "non-renewed" for any reason -- and that no reason needs to be given.

The reason is not at issue at the moment anyway. When Jackson sued over his lost job, the district court assumed for the sake of argument that Jackson was retaliated against -- and ruled he could not file suit for it under Title IX, which does not explicitly mention retaliation. The U.S. Court of Appeals for the 11th Circuit agreed. Jackson took his case to the U.S. Supreme Court; it will hear arguments Nov. 30.

Title IX broadly bans sex discrimination at schools receiving federal funds. But the law does not specify what constitutes sex discrimination. That has been left to lower courts and to regulations promulgated by federal agencies. Those regulations include a prohibition against retaliation. Jackson's lawyers argue those regulations deserve deference because Congress reviewed them before they took effect.

But lawyers for the Birmingham board cite Alexander v. Sandoval, a 2001 Supreme Court decision that was the basis of the lower court decisions in Jackson's case. Martha Sandoval was a Mexican immigrant who could not pass a driver's license exam in Alabama, which gave the exam in English only. She sued under Title VI, which bars discrimination on the basis of race, color or national origin -- and which uses language almost identical to Title IX's.

Courts have said plaintiffs must prove the discriminatory intent of a practice to sue under Title VI. But the implementing regulations of Title VI allow individuals to sue by showing only the discriminatory effect of a practice. The lower courts ruled in Sandoval's favor based on the regulations.

But the Supreme Court ruled 5-4 that Congress never intended to allow individuals to sue under authority of the regulations.

Jackson's lawyers say the 11th Circuit was wrong to apply Sandoval to the Jackson case. They say other federal appeals courts have recognized a right to sue for retaliation under Title IX.

They say the Supreme Court has recognized a prohibition on retaliation in other broadly worded anti-discrimination laws even when the statute itself does not mention retaliation.

They argue in court papers: "If schools and other defendants could freely retaliate against those who protest discriminatory treatment, they would effectively be engaging in the discrimination prohibited by the statute."

(Copyright (c) 2004 USA Today)

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JUSTICE DEPARTMENT FILES MOTION TO INTERVENE IN TITLE IX SEXUAL HARASSMENT CASE AGAINST RHINEBECK CENTRAL SCHOOL DISTRICT

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WASHINGTON, D.C. - The Justice Department today announced that it has moved to intervene in a sexual harassment case involving allegations that a former New York high school principal sexually harassed former students and a school employee. The motion to intervene and proposed complaint were filed today in U.S. District Court for the Southern District of New York.

The complaint alleges that the Rhinebeck Central School District violated Title IX of the Education Amendments of 1972. The Justice Department seeks to intervene the May 2003 lawsuit, AB et al v. Rhinebeck Central School District and Thomas Mawhinney, filed by four current and former high school students and a school employee.

"No student should have to endure sexual harassment while trying to obtain an education," said Assistant Attorney General R. Alexander Acosta. "Our effort to intervene in this case demonstrates that the Department of Justice will not hesitate to enforce the law when we find evidence of unlawful sex discrimination in our nation's schools."

The complaint alleges that Mawhinney sexually harassed the four plaintiff students as well as other female high school students during his 10 year tenure as principal and that the school district violated Title IX by acting with deliberate indifference to known sexual harassment of students. Specifically, the government alleged that Mawhinney created a hostile educational environment for female students, that the school district had actual notice of Mawhinney's sexual harassment of female students, and that the district did not take adequate corrective steps to address the problem.

If permitted to intervene, the Department will seek to prohibit school district officials and employees from all unlawful discrimination against school-age children on the basis of sex. The Justice Department also seeks to have the district ordered to develop and timely implement a comprehensive plan that will ensure a discrimination-free educational environment for all its students.

Enforcement of federal education discrimination laws is a priority of the Civil Rights Division.

Rhinebeck school district gets mixed messages from fed offices
Justin Philpott , Special to the Daily Freeman, 04/10/2004

RHINEBECK - Less than three weeks before five plaintiffs filed a multimillion-dollar lawsuit against the Rhinebeck Central School District and former Principal Thomas Mawhinney for alleged sexual harassment by the principal, the U.S. Office for Civil Rights told the district it had complied with federal regulations concerning sexual harassment.

Plaintiffs in the May 2003 lawsuit alleged the district and principal had violated provisions of Title IX, a federal act that prohibits discrimination on the basis of sex. But in an April 17, 2003 letter from the Office for Civil Rights, the district was told it had "addressed the requirements of Title IX."

Making this even more puzzling is that on March 18, 2004, less than a year after the Office for Civil Rights determined the school district had met Title IX requirements, the federal government filed a motion to become a co-plaintiff in the lawsuit against the district and Mawhinney.

"This is the same government - granted, different departments - saying the opposite thing," said Markus Rushfield, attorney for the school district.

The Office for Civil Rights is a branch of the U.S. Department of Education. The U.S. Attorney's Office, which is part of the Department of Justice, filed the motion in March to become a plaintiff in the lawsuit against the district.

In 1996, the parents of a female student at Rhinebeck High School filed a complaint with the Office for Civil Rights, alleging Mawhinney made a statement about oral sex to the girl. That complaint, and complaints by three other students and one staff member, led to the May 2003 lawsuit, and the Office for Civil Rights required the district to sign a "resolution agreement" that addressed Title IX requirements.

In the agreement, the district promised to, among other things, revise its grievance procedures to ensure prompt and equitable resolution of complaints of sexual harassment; provide continued training for all employees and students on issues of gender and sexual harassment; ensure the principal's behavior would be monitored closely by the superintendent; and develop a plan to offer counseling to students who are victims of sexual harassment.

In order to monitor the agreement's implementation, the Office for Civil Rights ordered the district to provide evidence that it had complied with the requirements. The district did so, resulting the April 17, 2003 letter that stated Title IX requirements had been met.

But in the March 18, 2004, filing, the U.S. Attorney's Office wrote: "The United States files this complaint in intervention to redress discrimination on the basis of sex in violation of Title IX."

Heidi Wendel, the U.S. attorney in charge of the case, would not comment on last year's letter from the Office for Civil Rights.

However, the suit filed by the four plaintiffs last May states: "Despite the intervention of the OCR, Mawhinney has continued to harass female students at Rhinebeck High School up to the present time."

Rather than face disciplinary action, Mawhinney stepped down last May 26 after 10 years on the job in Rhinebeck.

©Daily Freeman 2004