Title IX and Retaliation


In 2005, the U.S. Supreme Court, in Jackson v. Birmingham Board of Education, rendered a sharply divided opinion in deciding that employees who report gender discrimination in violation of Title IX of the Education Amendments of 1972 and are retaliated against as a result of their complaints can seek redress for retaliation under Title IX. Title IX prohibits discrimination “on the basis of sex” by recipients of federal education funds. Although there is no specific reference to retaliation in the text of Title IX, Jackson extends the statute’s protections against discrimination “on the basis of sex” to those retaliated against for reporting violations of its provisions regardless of their gender.
Until Jackson was resolved, lower federal courts had disagreed as to whether a private right of action existed under Title IX. Jackson settled the question and has stimulated litigation against colleges and universities resulting in costly damages and settlement agreements, thereby opening a new window for aggrieved employees to seek restitution from institutions of higher learning for alleged instances of retaliation under Title IX. Accordingly, this entry examines Jackson’s background and potential ramifications for institutions of higher leaning.

Jackson v. Birmingham Board of Education


Facts of the Case


Roderick Jackson was hired as the physical education teacher and girls’ basketball coach by the public school board in Birmingham, Alabama, in 1993. Jackson was transferred to a different school in 1999, where he discovered that the girls’ basketball team did not receive equal funding or access to athletic equipment and facilities. The lack of funding and equipment caused Jackson significant difficulty in coaching the girls’ basketball team. Jackson complained of this unequal treatment to his supervisor beginning in December 2000, but his complaints were unheeded. Rather, Jackson began to receive negative performance evaluations and his employment as coach was terminated in May 2001; he retained his job as a teacher.
Jackson filed suit in a federal trial court in Alabama alleging, among other issues, that the school board retaliated against him because of his complaints of gender inequity in violation of Title IX. However, the trial court dismissed Jackson’s claim in declaring that Title IX’s private right of action did not include retaliation claims. The Eleventh Circuit affirmed on the basis that the plaintiff failed to state a claim, because Title IX did not provide for a private right of action for retaliation. The court added that even if Title IX had prohibited retaliation, Jackson would not have been entitled to relief, because he was not a member of the protected class, namely females, under Title IX.

The Supreme Court’s Ruling


The Supreme Court agreed to hear an appeal in order to resolve the question of whether the private right of action under Title IX encompassed claims of retaliation for complaints of discrimination on the basis of sex. Writing for the majority in a five-to-four judgment, Justice O’Connor, writing for the Court, reversed in favor of Jackson.
At the outset of its analysis, the Supreme Court pointed out that in 1979, in Cannon v. University of Chicago, it had recognized that Title IX implies a private right of action to prohibit intentional discrimination on the basis of sex. The Court also noted that, over time, it had distilled the contours of this private right of action in other cases, indicating that it authorizes private parties to seek monetary damages for Title IX violations and that the private right of action encompasses intentional sex discrimination in the form of deliberate indifference to a teacher’s sexual harassment of a student or to sexual harassment of a student by another student.
In Jackson, the Supreme Court held that retaliation against a person who complained of sex discrimination is another form of intentional discrimination on the basis of sex that is subject to Title IX’s private right of action. The Court reasoned that retaliation, by definition, is an intentional act and a form of discrimination, because a complainant is treated differently on the basis of a complaint, an action that represents an intentional response to an allegation of sex discrimination that constitutes the very nature of the complaint. The Court thus indicated that if plaintiff is subject to retaliation for raising a complaint of sex discrimination, this constitutes intentional discrimination “on the basis of sex,” in violation of Title IX.
The Supreme Court further explained that discrimination is a term covering a broad spectrum of disparate treatment and that Congress provided Title IX with a wide berth as a result of the breadth of its statutory language. To this end, the Court determined that Congress could have mentioned retaliation expressly in Title IX, just as it did in Title VII of the Civil Rights Act of 1964. Even so, the Court interpreted the two laws as different, insofar as Title IX’s cause of action is implied, while Title VII’s is explicit. According to this interpretation, the Court wrote, Title IX is a broadly constructed general prohibition of discrimination accompanied by narrow and specific exceptions to that general prohibition, while Title VII expressly denotes the conduct that constitutes illegal discrimination.
The Supreme Court went on to reject the board’s argument that Jackson was not entitled to invoke Title IX because his experience of the sex discrimination was indirect. Rather, the Court posited that because Title IX’s construction is sufficiently broad, it does not require victims of retaliation to also be the victims of the discrimination that was the subject of the initial complaints. In this way, the majority was of the opinion that the individuals who complained of discrimination, if retaliated against on the basis of those complaints, were to be treated as victims of discrimination regardless of whether they were parties to the original complaints.
As part of its rationale, the Supreme Court recognized that because reporting discrimination is essential to the enforcement of Title IX, the statute would have been diminished if the subjects of those reports could retaliate against persons who filed complaints alleging that discriminatory policies were in effect. The Court noted that those who teach and coach are in the best position to advocate for the rights of their students; they can effectively bring discrimination to the attention of administrators because of their closeness to situations in which discrimination might occur.
The school board’s final argument centered on the notion that Title IX should not have been interpreted as prohibiting retaliation, because its officials were unaware that it could have been liable for retaliating against those who complained of Title IX violations. The Supreme Court disagreed, ruling that the board and its officials should have been placed on notice in light of earlier cases that consistently interpreted Title IX’s private right of action as encompassing diverse forms of intentional sex discrimination.
According to the Court, because the regulations implementing Title IX, which clearly prohibited retaliation, had been in place for some 30 years, this fact should reasonably have informed the defendants that they were not free to retaliate against individuals who complained of gender inequity in violation of Title IX. In conclusion, the Supreme Court reversed and remanded in favor of Jackson, specifying that he should have been allowed to offer evidence to support his allegation of retaliation under Title IX. Jackson and the board subsequently reached a settlement that allowed him to return to work as head coach of a girls’ team at another high school in the district under the same terms of employment as other coaches (“Coach in Title IX Case,” 2006, p. 14).

The Dissent


The dissenters, in an opinion authored by Justice Thomas, characterized the majority’s holding as plainly against the grain of the language of Title IX, indicating that retaliatory conduct does not constitute discrimination on the basis of sex. The dissenting justices further asserted that they would have interpreted Title IX as not referring to retaliation in its text and that the clear meaning of the phrase “on the basis of sex” is relative to the sex of the plaintiff, not the complainant. The dissent was convinced that, within this construction, Jackson’s argument that the board retaliated against him failed to advance a claim for sex discrimination and that his allegation of discrimination was predicated on a tenuous connection between the alleged adverse treatment of the female basketball team and the alleged retaliation against him. The dissent rounded out its opinion with the comment that because Jackson’s sex did not play a role in his adverse treatment, the language of Title IX precluded embracing his complaint as a valid retaliation claim.

Impact of Jackson v. Birmingham in Higher Education


Jackson has stimulated litigation against institutions of higher education that has resulted in damages and settlement agreements reaching into the millions of dollars. The first application of the retaliation standard articulated in Jackson to higher education took place in 2006 in Atkinson v. Lafayette College. In Atkinson, a female athletic director who alleged that her employment was terminated as a result of her complaints regarding gender inequities in her institution’s sport programs successfully persuaded the Third Circuit to vacate an earlier order dismissing her case and to remand it for further proceedings consistent with Jackson. Atkinson was followed closely by Burch v. Regents of University of California (2006), in which a university wrestling coach publicly complained of inequities relative to the female wrestling team. His employment was subsequently terminated, which the institution held was a factor of the coach’s employment record of potential NCAA violations. Yet, the coach demonstrated that there were material issues of fact as to whether he was dismissed in retaliation for his complaints of gender inequities, consistent with the Jackson Title IX retaliation standard. The university settled with the coach for $725,000 in 2007.
In a case described by Lipka (2007), California State University at Fresno faced steep damages and settlements as a result of Title IX retaliation litigation. In 2007, a former volleyball coach was awarded a verdict of $5.85 million, while a female basketball coach who successfully argued retaliation for her advocacy of women’s athletics was awarded $19.1 million, an amount later reduced to $9 million. The university also settled a similar case with a former female athletics director for $3.5 million, while the University of California system settled for $3.5 million with a former Berkeley swimming coach who successfully contended that her layoff was discriminatory and retaliatory in nature (Lipka, 2007).
In 2008, Florida Gulf Coast University (FGCU) settled with two female coaches who argued that they had been retaliated against on the basis of their complaints concerning inequities in women’s athletics at the institution (Jaschik, 2008). FGCU paid the coaches $3.4 million, and also paid $800,000 to a former general counsel who argued that she had been retaliated against while working to resolve the matter. Similarly, in 2008 two female basketball coaches filed suit under Title IX against San Diego Mesa College, alleging retaliation for their advocacy of women’s sports (Stripling, 2008).
Kerry Brian Melear

See also U.S. Supreme Court Cases in Higher Education
Further Readings
Coach in Title IX case wins reinstatement. (2006, December 6). Education Week, p. 14.
Hausrath, C. M. (2006). Jackson v. Birmingham Board of Education: Expanding the class of the protected, or protecting the protectors? University of Richmond Law Review, 40, 613–630.
Jaschik, S. (2008, October 22). Quick takes. Retrieved June 23, 2008, from http://www.insidehighered.com/news/2008/10/22/qt
Lipka, S. (2007, August 3). Fresno State grapples with a spate of sex-discrimination claims. The Chronicle of Higher Education, 53(48), A29.
Melear, K. B. (2007). Title IX and retaliation: The impact of Jackson v. Birmingham Board of Education on Higher Education. Journal of Personnel Evaluation in Education, 19, 91–103.
Redden, E. (2007, December 10). Fallout from Fresno State’s multi-million dollar case(s). Retrieved May 25, 2009, from http://www.insidehighered.com/news/2007/12/10/fresno
Russo, C. J., & Thro, W. E. (2005). The meaning of sex: Jackson v. Birmingham School Board and its potential implications. Education Law Reporter, 198, 777–792.
Stripling, J. (2008, July 28). Lesbian basketball coaches call foul. Retrieved May 25, 2009, from http://www.insidehighered.com/news/2008/07/28/mesa
Legal Citations
Atkinson v. Lafayette College, 460 F.3d 447 (3d Cir. 2006).
Burch v. Regents of University of California, 433 F. Supp. 2d 1110 (E.D. Cal. 2006).
Cannon v. University of Chicago, 441 U.S. 677 (1979).
Jackson v. Birmingham Board of Education, 544 U.S. 167 (2005).
Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e (1964).
Title IX of the Education Amendments of 1972, 20 U.S.C. §§ 1681 et seq. (1972).