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Private action for retaliation under Title IX?
January 19, 2005 by Ross Runkel at LawMemo
In Jackson v. Birmingham Board of Education the US Supreme Court will decide whether Title IX provides a private cause of action for retaliation against a man because he complained about alleged sex discrimination against women.
The 11th Circuit held in favor of the employer. The US Supreme Court heard oral arguments on November 30, 2004. We're waiting for the decision.
Roderick Jackson, a girls' basketball coach, sued under Title IX of the Education amendments of 1972 claiming he was removed from his coaching position because he complained about practices he believed discriminated against his girls' basketball team in violation of Title IX. The trial court dismissed the action; the 11th Circuit affirmed. The 11th Circuit held that Title IX does not provide a private cause of action for individuals who suffer retaliation for complaining about gender discrimination suffered by others. The US Supreme Court granted certiorari to review the 11th Circuit's decision. Decision below: Jackson v. Birmingham Board of Education (11th Cir 10/21/2002). [Briefs and argument transcripts]
A lot of organizations have filed amicus briefs in support of Mr. Jackson: the United States government, the NEA, AAUP, and a whole bunch of sports organizations. Trouble is they don't get to vote; only the Justices do.
The employer's argument is simple: Title IX's language prohibits discrimination but does not prohibit retaliation. Administrative regulation that seem to support Jackson are not entitled to deference because there is no ambiguity in the statute. Jackson has no standing under the regulations as they are written. And Jackson's case is controlled by Alexander v. Sandoval (US Supreme Court 04/24/2001), which held that there is no private right of action for violation of disparate impact regulations promulgated under Title VI.
Jackson's argument is a bit more complex: Although Title IX does not expressly prohibit retaliation, retaliation is included in the concept of "discrimination." Administrative regulations adopted by the Department of Education and the Department of Justice prohibit retaliation against a person because that person has filed a sex discrimination complaint. Neither Title IX itself nor the regulations makes a distinction on the basis of whether the underlying discrimination that is complained about was directed at the complainant (here, Jackson) or someone else (here, the girls' basketball team). Alexander v. Sandoval has no application because it was limited to the question of whether Title VI created a private action to enforce disparate impact regulations.
My sense is that the Supreme Court is reluctant to imply causes of action into statutes and regulations. Their job is to carry out the will of Congress, whether or not the outcome is one they like. The regulations prohibit discrimination (which fairly can include retaliation) "because he has made a complaint, testified, assisted, or participated in any manner in an investigation, proceeding or hearing under this part." One problem for Jackson's side is that what he did was complain to his supervisors. Other statutes that expressly forbid retaliation typically include two types: "participation" (which the regs cover) and "opposition" (which the regs do not cover). Jackson's fact pattern does not seem to fit the regulation. In addition, there is the problem of whether the regulations go beyond the bounds of the statute in the first place.
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