The landmark gender equity law that touched off a revolution in women's sports came before the Supreme Court today, as the justices debated whether to protect coaches and teachers who complain about failures to give girls equal treatment.
Until recently, the answer would have been obvious. After Congress passed the civil rights laws of the 1960s and 1970s, the high court said victims of discrimination and their defenders could sue to enforce those laws.
But three years ago, the court, now more conservative, changed course and said it would no longer assume victims and others could sue to enforce a federal law unless Congress clearly gave them that right.
The 5-4 ruling in that case narrowed the Civil Rights Act of 1964 and threw out a lawsuit brought by Spanish-speaking residents of Alabama who complained that the state driver's exam was in English only.
Relying on a newly announced, stricter approach, a federal judge in Alabama threw out a lawsuit brought by a girls basketball coach in Birmingham who was stripped of his duties after he complained his team was getting second-class treatment.
The coach, Roderick Jackson, sued the school district under the terms of Title IX of the Education Amendments of 1972. That measure says no person in a school or college that receives federal funds may "be subjected to discrimination ... on the basis of sex." This one-sentence decree forced universities, colleges and high schools to offer full sports programs for women, many for the first time.
But as the federal judge in Birmingham and the U.S. Court of Appeals in Atlanta pointed out, the law did not specifically say victims of sex discrimination could sue in court.
Instead, it said they could complain to the U.S. Department of Education in Washington and its Office for Civil Rights. This agency in turn can threaten to cut off federal funds to the school or college if it continues to violate Title IX.
The high court took the case of Jackson vs. Birmingham Board of Education to decide whether to maintain its long-standing liberal approach to enforcing Title IX or to adopt its new, more conservative approach that shuns lawsuits.
And not surprisingly, the justices quickly divided along conservative and liberal lines.
A lawsuit against the school "could be very disruptive," said Justice Antonin Scalia, the author of the earlier ruling that limited lawsuits in civil rights cases.
A Bush administration attorney and Walter Dellinger, the U.S. solicitor general during the Clinton administration, joined in arguing for the right of coaches and teachers to sue to enforce Title IX. They noted that since 1969 the court has said that the laws against race and sex discrimination in schools and colleges can be enforced through private lawsuits.
"And you think we take the same approach to these implied causes of action as we took in 1969," Scalia interjected with a tone of sarcasm.
The two veteran advocates replied that when Congress passed Title IX in 1972, lawmakers assumed victims of discrimination were free to sue. Moreover, they said, the law then clearly allowed whistleblowers to sue.
"Retaliation [against a whistleblower]is itself discrimination under Title IX," said Irving Gornstein, an assistant solicitor general.
He said the Education Department's regulations make clear that Title IX forbids schools and colleges to retaliate against those who complain of violations.
Maybe so, but Justice Anthony M. Kennedy indicated he agreed with Scalia. "You have to show there was a congressional intent" to allow private lawsuits, he told Dellinger and Gornstein.
A lawyer for the school board said victims of discrimination or retaliation have an easy, quick way to enforce the law. "They can make a toll-free phone [call] to OCR," said Kenneth Thomas, the school's lawyer.
By contrast, a lawsuit could be costly to the school system, including its sports teams. If Jackson won money damages from a jury, "the reward would go only to him. Nothing would go to benefit the girls' basketball team," he said.
But Justice Ruth Bader Ginsburg, a leading advocate of women's rights during the 1970s, said private lawsuits were crucial to enforcing the nation's civil rights laws. "Antidiscrimination laws would be a dead letter if there was no private cause of action," she said.
In response to her questions, lawyers defending the school board conceded that no college, university or school district has had its federal funds cut off for failing to comply with Title IX.
The outcome appeared to hinge on Justice Sandra Day O'Connor. In the past, she has joined with her more conservative colleagues to limit lawsuits, but has also voted with the court's liberal bloc in cases involving sex discrimination.
She asked several questions about how the complaint procedures worked and what became of Jackson. She did not telegraph how she intended to vote.
Jackson kept his teaching post and was later rehired as an interim coach of the girls' basketball team. His lawsuit seeking back pay for his lost time as a coach has not gone to trial.
It will be several months before the court issues a ruling.