A Most Uneven Playing Field

When Roderick Jackson joined Ensley High School as the girls basketball coach in 1999, he soon saw that his Yellow Jackets were getting a raw deal. The boys teams at the Birmingham, Ala., school practiced in Ensley’s new, regulation-size gym with fiberglass backboards. The girls teams were stuck in the small, unheated gym with dinged-up floors, bent hoops and a wooden backboard.

The boys rode to games in a bus paid for with proceeds from game concession sales. His winning girls, who got little of that money, had to arrange carpools. If a boy twisted his ankle, his coach filled an ice pack at the school’s ice machine. But Coach Jackson couldn’t get a key to the room containing the machine.

At first, Jackson made do, but as his lawyers told the U.S. Supreme Court this week, when school officials eliminated the girls junior varsity team while keeping the boys squad, he complained. Jackson wrote memos asking that the girls varsity team get practice time in the new gym and more of the concession revenues. He reminded administrators of the 1972 federal civil rights law known as Title IX, requiring equal opportunities for male and female athletes. He asked that the junior varsity team be restored.

For his troubles, Jackson, who has taught since 1992, was fired as coach but allowed to stay on as a lower-paid driver education and gym teacher. He sued the school district, claiming that the disparate treatment accorded his players was illegal discrimination under Title IX and that his firing as coach was unlawful retaliation for speaking out.

For 30 years, federal courts ruled that victims of discrimination and their defenders, such as Jackson, could sue. But three years ago, the high court switched course, ruling that because the 1972 law did not explicitly grant victims and others access to courts, such suits were disallowed. That led lower courts to dismiss Jackson’s claim.

Last week, the absurd logic of the high court’s new strict constructionist standard was on full display. The school district’s lawyer argued that, instead of suing, Jackson should have complained to the Department of Education’s Office of Civil Rights, which has the power to strip federal funds from schools that discriminate.

So, asked a skeptical Justice Ruth Bader Ginsburg, how many times has that office cut off funding to schools that violated Title IX? Never, answered the lawyer. Of all the complaints lodged from Birmingham in the last 20 years, she pressed, how many has the office investigated? Two, was the reply.

Since its passage, Title IX has changed the face of high school and college athletics. More than 3.6 million girls now play high school sports, up from 295,000 in 1972. Women’s participation in college athletics has similarly soared. Diligent school officials get credit for some of that progress, but much of it resulted from litigation.

Yet, in many places girls are still relegated to chewed-up baseball diamonds, late-night pool practices or lousy coaches. Unless individuals can force redress, these inequities will persist, and a landmark law will wither to a meaningless statement of good intentions.