The U.S. Supreme Court will review the 11th U.S. Circuit Court of Appeals’ finding almost two years ago that Title IX did not give a male high school coach in Alabama the right to sue his employer, even if the employer allegedly retaliated against the coach because the coach complained that the employer discriminated against his team because of their gender.
The high court is scheduled to hear the case this fall.
Roderick Jackson, the plaintiff, coached the Ensley (Ala.) High School girls’ basketball team. Jackson complained that his team was denied equal funding and equal access to sports facilities and equipment in violation of Title IX.
After expressing his concerns, Jackson began receiving negative work evaluations. He was ultimately removed from his position in May 2001. He sued the Birmingham Board of Education, claiming that it terminated his contract in retaliation for his complaints about gender discrimination.
The district court dismissed his complaint, and Jackson, representing himself, appealed. The appeals court posed the central question as “whether Title IX provides Jackson a private right of action and a private remedy against the board for its allegedly retaliatory actions?”
In its opinion — Jackson v Birmingham Board of Education, 11th Cir., No. 02-11303, 10/21/02 — the 11th Circuit examined Jackson’s argument that Section 902 of Title IX prohibits retaliation against a person who has complained of a Title IX violation. However, panel seemed even more pre-occupied with a recent U.S. Supreme Court decision – Alexander v. Sandoval, 532 U.S. 275, 121, S.Ct. 1511, 149 L. Ed.2d 517 (2001).
The Sandoval court concluded that Title VI did not “imply a right of action for private litigants to sue recipients of federal funds for ‘disparate impact’ violations.” Specifically, the court focused on the importance of legislative intent when deciding whether a private right of action may be inferred:
“Like substantive federal law, itself, private rights of action to enforce federal law must be created by Congress. The judicial task is to interpret the statute that Congress has passed to determine whether it displays an intent to create not just a private right but also a private remedy. Statutory intent on this latter point is determinative. Without it, a cause of action does not exist and courts may not create one, no matter how desirable that might be as a policy matter, or how compatible with the statute. Raising up causes of action where a statute has not created them may be a proper function for common-law courts, but not for federal tribunals.”
The appeals court in the instant case continued to find great relevance in Sandoval, specifically the analysis of Section 602 of Title VI. “Section 902, like its twin (Section 602), is devoid of ‘rights-creating’ language of any kind – whether against gender discrimination, retaliation or any other kind of harm.”
The two sections are similar, noted the court, in that they are both more concerned with enforcement measures against entities that are not complying with the law, rather than creating private rights of action.
“Moreover, even if Title IX did aim to prevent and remedy retaliation for complaining about gender discrimination, Jackson is plainly not within the class meant to be protected by Title IX… .
“Congress could easily have provided some protection or form of relief to these other interested individuals had it chosen to do so – especially for a harm as plainly predictable as the retaliation here at issue – but it did not do so expressly.”
The appeals court seemed to empathize with Jackson, yet …
“We are not free to extend the scope of Title IX’s protection beyond the boundaries Congress meant to establish, and we thus may not read Title IX so broadly as to cover anyone other than the direct victims of gender discrimination.”
That decision will now be left to the Supreme Court.
