From Betsy Combier:

Most children learn at an early age that if they do something wrong they will be punished for it. Our government, it seems, wants us to unlearn that, but this may change. In fact, we believe that it will, perhaps not immediately in the case brought by Mr. Roderick Johnson, but the future for whistleblowers is a good one. It must be so.

The massive amounts of federal money lost every year through graft, fraud, embezzlement and outright theft by people elected or appointed to public office is aided and abetted by the fact that there are seldom any consequences for these actions in the courts of America. This must change. We need to support whistleblowers and the inevitable retaliation that follows their exposure of wrong-doing by establishing the private right to sue and the right to be protected from harm as these courageous people stop governments from misusing public money and destroying the public trust.

Justice Kennedy is quoted below as saying "This is not the heyday of private causes of action." We believe the 'heyday' is, indeed, here.

December 1, 2004
Retaliation at Issue in Discrimination Case
By LINDA GREENHOUSE, NY TIMES

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WASHINGTON, Nov. 30 - The law known as Title IX has expanded opportunities for women and girls in sports and other activities by prohibiting sex discrimination in schools and colleges that receive federal money. The questions for the Supreme Court in an argument on Tuesday were whether Title IX also protects those who complain about sex discrimination from retaliation, and whether victims of retaliation can bring their own Title IX lawsuits.

The case was brought by the coach of a girls' basketball team at a high school in Birmingham, Ala., who complained that the school gave the boys' team favored conditions for playing and practice. The coach, Roderick Jackson, lost his coaching position, along with the extra pay it carried, although he retained his tenured position as a gym teacher. He brought a lawsuit under Title IX accusing the Birmingham school board of improperly retaliating against him.

His suit was dismissed by both the federal district court in Birmingham and the United States Court of Appeals for the 11th Circuit, in Atlanta, which held that the statute did not encompass the right to bring such a lawsuit. His Supreme Court appeal, Jackson v. Birmingham Board of Education, No. 02-1672, is being supported by an array of civil rights groups and by the Bush administration. Since 1975, three years after Congress added Title IX to federal education law, the federal government has interpreted it as providing protection against retaliation.

But the statute itself does not mention retaliation, in contrast to some other civil rights laws, including Title VII of the Civil Rights Act of 1964, the basic federal law against employment discrimination. Title VII provides explicit protection against retaliation.

The Supreme Court has grown increasingly reluctant to accept administration interpretations that go beyond the actual language of a statute and to permit private lawsuits that the statute itself does not explicitly authorize. The only action to which Title IX refers as a remedy for violating its terms is the withholding of federal money.

The case therefore has both practical and theoretical importance for the enforcement of federal civil rights laws. The court's decision will determine the scope of Title IX and, by extension, a law known as Title VI, which bars racial discrimination in federally financed programs.

Further, the decision will provide a snapshot of the court's current view on what are known as "implied private rights of action," the judicial determination of a right to sue under a statute that does not grant one in so many words.

To the lawyers on Mr. Jackson's side, those two issues are intertwined, and the answers are clear.

"Antidiscrimination laws simply can't be effective" if the threat of retaliation deters knowledgeable people from complaining about unequal treatment, one of those lawyers, Walter Dellinger, told the justices. Mr. Dellinger, who was acting solicitor general in the administration of President Bill Clinton and more recently Martha Stewart's appellate lawyer, is representing Mr. Jackson without charge on behalf of the national Women's Law Center, which organized his appeal.

"It is people like Coach Jackson who make Title IX work," Mr. Dellinger said, adding, "It is very important to enable people to bring their institutions into compliance."

Irving L. Gornstein, an assistant solicitor general arguing for the government on Mr. Jackson's behalf, said that "retaliation against a person because that person has complained about discrimination is itself discrimination within the meaning of Title IX."

Mr. Gornstein told the court that "we're not asking you to add words to the statute but to interpret the words that are there."

It was clear from the justices' responses that this would be a closely fought case. Justices Antonin Scalia and Anthony M. Kennedy were openly skeptical, both of the lawyers' interpretation of the statute and of the ability of a private plaintiff like Mr. Jackson to bring a lawsuit under it.

"This is not the heyday of private causes of action," Justice Kennedy told Mr. Dellinger, a statement of the obvious to many in the courtroom.

Three years ago, in a case called Alexander v. Sandoval, the court limited the right to bring private lawsuits to enforce Title VI, the anti-race-discrimination statute, ruling that because Congress barred only intentional discrimination, the law could not be interpreted to permit private suits for actions that had discriminatory effects without necessarily showing intent.

The court of appeals based its dismissal of Mr. Jackson's case largely on the Sandoval decision, and the two lawyers who defended that ruling on Tuesday also invoked it. Kenneth L. Thomas, representing the Birmingham school board, and Kevin C. Newsom, Alabama's solicitor general, also tried to persuade the justices that the administrative remedy provided by Title IX, a complaint to the Department of Education's Office of Civil Rights leading to a cutoff of federal money, was effective enough to ensure the statute's vitality.

"Title IX's remedial apparatus is ticking along just fine," Mr. Newsom said.

Now it was Justice Ruth Bader Ginsburg's turn to be openly skeptical. Was the Office of Civil Rights so unlike other federal agencies that it could really respond to every complaint? she asked. Didn't its limited resources mean that it "has to pick and choose?"

Mr. Gornstein, the assistant solicitor general, had informed the court that the agency had never cut off money as a result of a Title IX complaint. How many times had the Office of Civil Rights even investigated a complaint in Birmingham? Justice Ginsburg asked the school board's lawyer.

Two times in his 20 years as an education lawyer, Mr. Thomas replied.

"Two in 20 years?" Justice Ginsburg repeated.

"Yes, ma'am, but they're all memorable," the lawyer replied. He said investigations by the agency, known as O.C.R., were "onerous" and "on my watch the No. 1 priority is to keep O.C.R. out."

Justice Scalia, taking the school board's side, said the absence of resort to the "draconian sanction" of withholding money did not show that enforcement was ineffective but rather that it was "overwhelmingly effective" because a school district threatened with enforcement "will hop to it."

With the court likely to be closely divided, the outcome might well turn on Justice Sandra Day O'Connor's vote. She asked several questions during the argument but did not tip her hand.

THE NATION
Justices Weigh Gender Equity Law
The question is whether coaches and teachers who think girls aren't getting equal treatment can sue to enforce antidiscrimination laws.
By David G. Savage, LAtimes.com, December 1, 2004
Times Staff Writer

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WASHINGTON - The landmark gender equity law known as Title IX, which touched off a revolution in women's sports, came before the Supreme Court on Tuesday as the justices debated whether to protect coaches and teachers who complain that their schools or colleges fail to give girls equal treatment.

Until recently, the answer would have been obvious: After Congress passed the civil rights laws of the 1960s and 1970s, the high court said victims of discrimination and their defenders could sue in court to enforce those laws.

But three years ago, a more conservative court changed course and said it would no longer assume that victims and others could sue to enforce a federal law unless Congress clearly gave them that right.

The 5-4 ruling in that case narrowed the Civil Rights Act of 1964 and threw out a lawsuit brought by Alabama's Spanish-speaking residents who complained that the state driver's exam was in English only.

Relying on the newly announced, stricter approach, a federal judge in Alabama threw out a lawsuit brought by a Birmingham girls' basketball coach who was stripped of his duties in May 2001 after he complained his team received less funding and was provided poorer equipment and facilities than the boys' team.

The coach, Roderick Jackson, sued the school district under Title IX of the Education Amendments of 1972, which says no person in a school or college that receives federal funds may "be subjected to discrimination ... on the basis of sex." This one-sentence decree forced universities, colleges and high schools to offer a full sports program for women, many for the first time.

But as the federal judge in Birmingham and the U.S. court of appeals in Atlanta pointed out, the law did not specifically say victims of sex discrimination could sue in court.

Instead, it said they could complain to the U.S. Department of Education in Washington and its Office for Civil Rights. This agency in turn could cut off federal funds to the school or college if it continued to violate Title IX.

The high court took up the case of Jackson vs. Birmingham Board of Education to decide whether to maintain its long-standing liberal approach to enforcing Title IX or to adopt its newer, more conservative approach that shuns lawsuits.

And the justices quickly divided along conservative and liberal lines.

A lawsuit against the school "could be very disruptive," said Justice Antonin Scalia, the author of the earlier ruling that limited lawsuits in civil rights cases.

Walter Dellinger, the former U.S. solicitor general during the Clinton administration, and a Bush administration attorney, Irving Gornstein, joined in arguing that coaches and teachers had a right to sue to enforce Title IX. They noted that, since 1969, the court had said that the laws against race and sex discrimination in schools and colleges could be enforced through private lawsuits.

"And you think we take the same approach to these implied causes of action as we took in 1969?" Scalia interjected.

The two veteran advocates replied that when Congress passed Title IX in 1972, lawmakers assumed victims of discrimination were free to sue. Moreover, they said, the law then clearly allowed whistle-blowers to sue.

"Retaliation [against a whistle-blower] is itself discrimination under Title IX," said Gornstein, an assistant solicitor general, adding that the Education Department's regulations made clear that Title IX forbid schools and colleges to retaliate against persons who complained of violations.

Maybe so, but Justice Anthony M. Kennedy indicated he agreed with Scalia. "You have to show there was a congressional intent" to allow private lawsuits, he told Dellinger and Gornstein.

A lawyer for the school board said victims of discrimination or retaliation had an easy, quick way to enforce the law. "They can make a toll-free phone call to OCR," said Kenneth Thomas, the school's lawyer, referring to the Office of Civil Rights.

By contrast, a lawsuit could be costly to the school system, including its sports teams. If Coach Jackson won money damages from a jury, "the reward would go only to him. Nothing would go to benefit the girls' basketball team," he said.

But Justice Ruth Bader Ginsburg, a leading advocate of women's rights during the 1970s, said private lawsuits were crucial to enforcing the nation's civil rights laws. "Antidiscrimination laws would be a dead letter if there was no private cause of action," she said.

She also questioned whether it was realistic to think the government would cut off federal funds. In response to her questions, lawyers defending the school board conceded that no college, university or school district had had its federal funds cut off for failing to comply with Title IX.

The outcome appeared to hinge on Justice Sandra Day O'Connor. In the past, she has joined with her more conservative colleagues to limit lawsuits, but she also has voted with the court's liberal bloc in cases involving sex discrimination.

She asked several questions Tuesday about how the complaint procedures worked and what became of Jackson. She did not telegraph how she intended to vote, however.

Jackson kept his teaching post and was later rehired as interim coach of the girls' basketball team. His lawsuit seeking back pay for his lost time as a coach has never gone to trial.

It will be several months before the court issues a ruling.

Coach: Title IX protects me from retaliation
CNN.com, Law Center, December 1, 2004

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(CNN) -- The U.S. Supreme Court is considering whether the gender equity law that prohibits discrimination in women's sports also affords protections to people who report the unfair treatment.

Attorneys argued that issue Monday, and on Tuesday, CNN anchor Miles O'Brien interviewed several people involved in that litigation. He talked to Roderick Jackson, an Alabama high school basketball coach who lost his job after complaining of inadequate facilities for female players, Jackson's attorney, Marcia Greenberger, and Naomi Gittins, a lawyer who filed a friend of the court brief, for the Birmingham, Alabama, School Board.

O'BRIEN: Mr. Jackson, let me begin with you. Is there another way that you can go about this? In other words, could this be something where you could say you're a whistleblower as opposed to something that is protected under Title IX, which is all about gender bias?

JACKSON: No, sir. This was a Title IX case, because it involved sex discrimination against the young ladies at the high school that I represented.

O'BRIEN: And give us a sense of what kind of discrimination you observed and what you said about it.

JACKSON: Well, the girls were forced to practice in the old, shabby gym with the floors not polished. The back boards were wooden. The rims were bent and not collapsible and not regulation-length. That was just one of the many things, including no access to the expense accounts to allow the girls to pay for their buses and officials.

O'BRIEN: And all of this, when you compare it with the boys' team -- big difference?

JACKSON: Yes, sir. Well, the boys practiced in the regulation gym, and we just thought we should rotate it. You know, no one should get exclusive use of the gym. We thought that we should take turns, make a schedule and that kind of thing. But no one wanted to hear that.

O'BRIEN: And then ultimately you were fired. Now, you're back on the job now, correct, just to clarify it, right?

JACKSON: Yes, sir. With the election of a new elected school board and a new school administration, we interviewed for the position and received the interim coaching position at Ensley (High School).

O'BRIEN: All right. So, Ms. Greenberg, this is about the interim period, the back pay and so forth. In your mind, is this a clear case that involves gender bias? Or is this somebody who has been singled out for being a whistleblower, which would be a different set of laws?

GREENBERGER: Well, actually it is a clear case of gender bias. And the whistleblower laws don't really apply in this instance at all. Every single anti-discrimination law for decades, for over 40 years, has said that a part and parcel of the protection against discrimination is also the protection against retaliating against someone because they've been complaining about discrimination.

O'BRIEN: Title IX doesn't clearly state that, though, does it?

GREENBERGER: Well, Title IX has a general broad-based prohibition against discrimination. It doesn't list the kinds of discrimination or the specific practices that are involved. And that's been true for many anti-discrimination laws over the years. Some do specifically say it includes retaliation. Those are the kinds of laws that often describe the types of discrimination that are being prohibited.

Title IX just says no discrimination in or under or for those who participate in programs or activities that receive federal funds. And that's modeled on Title VI, a law that was passed in 1964 that prohibits race or national origin discrimination, using the same exact wording.

The government, since the '60s has said that part of that protection is against those who are retaliated against. The government in 1975, when Title IX regulations were issued, said same thing for Title IX.

The law for all of these anti-discrimination laws, however they're worded, for constitutional equal protection purposes, for statutory protection purposes, has always been interpreted to protect against those who complain about illegal discrimination.

O'BRIEN: All right.

GREENBERGER: And obviously we know why, because if people like Coach Jackson were allowed to be punished when they stepped forward, our laws wouldn't be worth the paper that they're written on.

O'BRIEN: All right. Let's turn it now over to the other side. Ms. Greenberg and Mr. Jackson, thank you very much.

Ms. Gittins, I guess the question is: How broad is Title IX in your view?

GITTINS: Well, Title IX does say that school districts can't discriminate against people on the basis of sex. And so it all comes down to what does on the basis of sex really mean?

Well, Congress clearly was trying to protect girls and women and to give them equal opportunities and educational programs. They weren't thinking about people who might stand up and say, these people have been discriminated against. They were thinking of girls and women and not people like Mr. Jackson.

O'BRIEN: So you would go for a fairly narrow interpretation here. And just to be clear, you don't dispute the fact that his team was not treated as well as the boys' team at that school.

GITTINS: Well, those are the allegations that he made. And it's important to remember that there has been no factual determination as to whether the team actually was discriminated against under Title IX, or whether he actually was retaliated against. The courts have assumed that in order to decide the issue.

O'BRIEN: All right. So the court, in general, the Supreme Court, the Rehnquist court, generally takes a narrow view of such matters. What's your take on it?

GITTINS: That's correct. What they've said is that the most important thing in determining a statute that doesn't clearly say one way or another is to look at congressional intent. Well, there is nothing that really says that Congress intended to protect people other than girls and women who were being discriminated against on the basis of their gender.

In this case, if you want to say that Mr. Jackson was discriminated against, he was discriminated against on the basis of speaking up. And contrary to what he said, he seemed to suggest that Title IX was his only avenue for relief. Well, that isn't exactly correct. He could have, for instance, brought a claim under the First Amendment. The court...

O'BRIEN: All right. Just a final thought, though, because I just want to get the sense of, taking aside the legalities here and whether it's the First Amendment or Title IX, was he treated fairly?

GITTINS: Again, that's something that is for a court to determine. And I suppose if the Supreme Court agrees that he does have a right to sue under Title IX, then that's something the courts will determine at later point.

O'BRIEN: Naomi Gittins, thank you very much. Appreciate it. Marcia Greenberger and Roderick Jackson. We'll be following that story for you. Thank you for your time.

US Supreme Court Legal Briefs

Previous articles about Title IX cases:

US Supreme Court Will Hear Arguments on Retaliation for Alleged Title IX Sex Discrimination in Several US Schools

US Department of Justice Files Motion to Intervene in Title lX Sexual Harassment Case Against Rhinebeck Central School District

TITLE IX Now Reaches High Schools and Even Middle Schools