Posted on 11/30/2004 6:27:06 PM PST by bahhumbug
Good facts, bad law: Supreme Court hears Title IX case today
The Supreme Court hears oral arguments today in a school case from Alabama that has implications for school boards and other educational institutions nationwide. The issue is whether Congress intended to give people the right to sue a school or university under Title IX when they allege that they suffered retaliation for complaining about discrimination against others. Title IX prohibits gender-based discrimination in educational programs that receive federal funding.
Just the facts Here are accounts from Education Week and Nina Totenberg of NPR. The nutshell: Roderick Jackson, a teacher and girls basketball coach in Birmingham, Ala., says that when he complained that his team was getting short-changed compared to the school's boys' team, he started getting bad evaluations and was removed as coach. He brought a Title IX lawsuit, but both the federal district court and the Eleventh Circuit Court of Appeals ruled that Title IX does not allow a lawsuit for retaliation, especially by a third party who was not the victim of the alleged gender discrimination.
At this point only Mr. Jackson’s version of events is out there, since if the Court rules in his favor and allows the case to go to trial, the disputed facts will be contested in the litigation back in the lower court. The rule at this stage in a trial is that the court has to assume for the sake of argument that the plaintiff's allegations are true, so that's the version you're reading in the press. And, if that version is true, it's a pretty sympathetic one for the teacher. We all love a story like this, and the news media know it: An underdog takes a principled stand for disadvantaged kids, the system comes down on him, but he won't back down.
The law Even assuming all of these allegations are true, however, this is another of those situations where, as the lawyers say, good facts make for bad law. Here's NSBA's press statement on the case. NSBA's brief to the Court argues that courts should not read between the lines in laws like Title IX to divine Congressional intent, that this kind of lawsuit simply is not necessary to realize the goal of Title IX, and that allowing this kind of lawsuit will have negative consequences for schools. Joining the brief are the Alabama Association of School Boards , the American Association of School Administrators, the American Association of Presidents of Independent Colleges and Universities, and the Association of Southern Baptist Colleges and Schools.
The big guns have come out for the other side. Arguing Mr. Jackson's case is Walter Dellinger, former Solicitor General of the U.S., who was brought in by the National Women's Law Center. Also advocating an expansive reading of Title IX are the Bush administration, which will argue the case as well, and the National Education Association (NEA). This New York Times editorial is a faithful recitation of their arguments, some of which we want to address here.
First, this case is not about, as this article on the Florida newspaper site TCPalm.com puts it, "whether coaches of girls' sports teams can gripe about second-class treatment from their schools without fear of losing their jobs." Mr. Jackson was not dismissed as a teacher, only as a coach. And, as every school board member, school lawyer, and school administrator is all too aware, teachers have a formidable arsenal of legal protections against actions by their employers. Mr. Jackson could have sued under the First Amendment for his right to speak out on a matter of public concern, for example. Just because Title IX doesn't address retaliation doesn't mean the laundry list of other protections don't either.
Mr. Jackson also could have called the U.S. Department of Education's hotline and spared everyone the trouble and expense of a lawsuit. If there really is a problem, schools can lose their federal funding for refusing to fix it, and they'll respond when the Department says so. This lawsuit, on the other hand, does nothing for the girls' team. And again, just because Mr. Jackson couldn't sue specifically under Title IX doesn't mean that calling in a complaint would have left him exposed to retaliation.
Second, Title IX will not collapse if third parties can't sue. NSBA supports Title IX. But the lawyers for Mr. Jackson want the Court to rule that every non-discrimination statute automatically assumes that third parties can sue for retaliation, even if Congress didn't say so, because they may be the "only effective advocate" for victims of discrimination. Ask any school principal—heck, just ask any parent—whether kids hesitate to complain when they think something isn't fair. And ask any school board member whether their parents are too timid to voice dissatisfaction. Opening the door even more widely to more lawsuits doesn't give school leaders warm fuzzies.
Third, anti-discrimination protections will not be rendered toothless if the Court insists that Congress be clear about who can sue whom under what circumstances. Contrary to assertions that most such statutes have the same kind of general language as Title IX, lots of other federal anti-discrimination laws do contain express prohibitions against retaliation and/or express provisions authorizing others to sue on behalf of direct victims. Congress knows how to do this. If the Court does find for the school board, Congress can always decide that it really did want to anoint third-party champions and amend Title IX accordingly.
The policy Finally, there are important policy considerations on the school side, too. Retaliation lawsuits sometimes go forward and end up costing schools money even when the court determines that there actually was no discrimination after all. And it's already hard enough for schools to take even routine personnel actions without letting every employee adorn himself or herself with the mantle of civil rights crusader and sue, alleging that the school's action really is retaliation. Even if Mr. Jackson's allegations are true in this instance, this is an unsettling scenario in an era of educational accountability.
Let's face it: In the court of public opinion, these legal and policy arguments about a workable system may sound like pretty cold-blooded calculations when weighed against a compelling personal story and the general idea of fairness to girls. We'll see what the Court and Congress think about the law.
That baffles me.
Bush - the gift that keeps on giving.
All indications point to this being a perfect "useful idiot" scenario.
Don't like Title IX? Don't accept federal welfare!
"...educational programs that receive federal funding..."
The feds produce NO FUNDS! That is taxpayer earned money.
Stop all so-called federal funding, get back the wasted money they steal from us, kick the feds out of ALL aspects of state and local issues --- especially school!
FMCDH(BITS)
It's so. He just appointed left-wing extremist Margaret Spellings to head the Department of Education. She even LOOKS like she works for the Village Voice. My theory is she's Jeanine Garofalo's lover. (See SWF and then watch Garofolo's transformation.)
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