Talk about taking one for the team. …
Roderick Jackson bitched to his bosses about the second-class treatment accorded the girls’ basketball team he coached at Ensley High School in Birmingham, Ala. Banished from the school’s new gym, Jackson’s team practiced in an unheated, rickety facility where its hoops literally drooped from age. When Jackson’s bosses fired him, he filed suit under Title IX, a federal sex discrimination statute. The district court and then the 11th Circuit Court of Appeals rejected his claim that being fired for protesting gender discrimination itself constitutes an act of gender discrimination for which he was entitled to sue under Title IX.
Title IX of the Education Amendments of 1972 bars gender discrimination in educational and other programs receiving federal funds and permits the government to stop funding entities engaging in sex discrimination. In a 1979 case, Cannon v. University of Chicago, the Supreme Court held that victims of sex discrimination also had a private right to sue under Title IX. The question for the Supreme Court today is whether Title IX additionally created a private cause of action for people who were fired for complaining about sex discrimination against others. The court will decide whether the statute covers whistle-blowers or just victims.
Walter Dellinger (whom I know and edit) represents Jackson, and he argues this morning that it does no good to protect teenage athletes in a vacuum. “People like Coach Jackson need to come forward,” he argues. “Students are minors, they don’t know about budgets.” Justice Antonin Scalia points out that the civil rights statutes that sought to protect against retaliatory firings “expressly provide for that.” It’s not logical to infer that Congress intended for the word “discrimination” to also include “retaliation” unless Congress explicitly said so. Dellinger responds that Title IX is identical to Title VI, which has long been understood to include retaliation in its definition of discrimination.
Quoting the statute, Scalia says he can’t see where Coach Jackson was “on the basis of sex … excluded from participation in … denied the benefits of, or … subjected to discrimination under any education program.” He asks whether that “even remotely describes” Jackson’s experience.
Justice Anthony Kennedy notes that the ‘60s are so over: “This is not the heyday of private causes of action anymore.” And Scalia objects to adding a new list of possible lawsuits to beleaguered school boards: “When the states signed on,” he says, “they couldn’t know this door to litigation was being opened to them.” Dellinger counters that there is “no way that when the school districts accepted these [federal] funds, they thought they’d be free to retaliate.”
Justice Sandra Day O’Connor, who will likely be the deciding vote in this case, asks whether Jackson availed himself of the administrative remedy available to him under Title IX before trying to sue own his own behalf. David Souter rephrases that question as: “Why do we need a private cause of action and not just this administrative remedy? Is the administrative remedy too draconian?” The justices confirm that termination of federal funding for schools based on Title IX violations are rare. At which time Scalia points out that maybe Title IX works “because the sanctions are so draconian. No one in their right minds wouldn’t rehire a coach” if faced with a withdrawal of federal funds.
Irving Gornstein is an assistant to the solicitor general, and he argues for 10 minutes on Coach Jackson’s side of the case. Many oral advocates have accidentally called Justice Ginsburg “O’Connor” over the years. Gornstein calls O’Connor “Justice Kennedy” this morning, thus proving that the two swing justices are merging inexorably into one great fungible Justice of Goo. Gornstein points out that in 1969 in Sullivan v. Little Hunting Park, the Supreme Court found that the statutory ban on racial discrimination encompassed retaliation and that Congress was well aware of the Sullivan rule when it passed Title IX in 1972.
Scalia asks wryly, “Do you think we take the same approach to implied causes of action today that we took in 1969?” He rejects the idea that “we’d go skipping along forever as we did in 1969.” Bong in one hand, bong in the other. … And O’Connor reminds him that “Mr. Jackson was not discriminated against because of his gender.” Gornstein replies that any “person who is victimized by retaliation because he complained about sex discrimination is a victim of sex discrimination.”
The Birmingham Board of Education is represented by Kenneth Thomas, whose accent makes Dellinger’s soft Carolina drawl sound Brooklynesque. Thomas opens with the claim that when there’s a Title IX complaint, the Office for Civil Rights swoops in, and then there’s hell to pay at school. “We know about OCR. They’re in Atlanta, 167 miles away,” he says. “And when they come, they come. …”Thomas goes on to argue that a private cause of action under Title IX offers no benefits to the team itself: “With a private suit, the award goes only to the coach,” he says. “Nothing would go to benefit the girls’ basketball team.”
Souter asks what Thomas makes of the fact that Title IX’s administrative remedies are almost never deployed. How can it possibly be working? “On my watch,” drawls Thomas, “the No. 1 priority is to keep OCR out.”
Souter persists. “Unless we allow whistle-blowers to bring a private right of action, this whole statute is a dead letter.” Thomas replies that in Birmingham “we are very conscientious about the administration of our programs.” ” ‘Trust me’ is not an answer,” snaps Ginsburg, “when you are telling a sixth-grader she can’t play on a team.”
In perhaps the single greatest moment of the 2005 term, Justice Stephen Breyer then interrupts Thomas to inquire: “Can I ask you a legal question?”
He goes on to offer a vintage Breyeresque three-part hypothetical, devoting at least five minutes to getting Thomas to concede that he must inevitably lose this case. To which Thomas finally responds with, “Justice Breyer, on the face of the statute, I just can’t get there. I apologize.”
In response to a question from O’Connor, Thomas begins to cite a case that the Supreme Court declined to hear. O’Connor interrupts him: “You don’t base your argument on giving some legal effect to a denial of certiorari?” she asks.
And Ginsburg sums up Dellinger’s side of the case again by urging that “[i]f we are talking about a sixth-grade soccer team, the only person who knows enough and is brave enough to complain is the teacher. … [I]f you cut the teacher out, forget it. [Title IX] is just nice words on paper.” Thomas replies, “The teacher can call OCR.”
Ginsburg says, “And OCR says we’re too busy.” Scalia asks whether we know OCR is routinely too busy to intervene. Thomas says, “I have firsthand knowledge.” Ginsburg snaps again, “Is that your personal testimony?”
“Yes,” says Thomas. Ginsburg then asks how many Title IX complaints he has fielded over the years. “Two,” says Thomas. “In 20 years.” Then he adds, “But they were all memorable.”
State Solicitor General Kevin Newsom gets 10 more minutes to speak in support of the Board of Education. He immediately sets out to correct the justices’ assumption that “without a private right of action, whistle-blowers are left out in the cold.” He urges that OCR has a lot of remedies beyond just yanking funding, and it’s precisely this threat of yanking that can result in “individualized relief.” He adds the “threat” of denying funds “is where the heavy lifting is done.”
This will be a close case, turning on whether the judges can know the unknowable: whether the vast sucking noise behind Title IX in this case is the result of its utter uselessness or its function as the perfect deterrent. Since the court can’t precisely answer that question, it may be forced to answer the next best one: whether the only man truly able to stand up for womankind is always going to be a woman.