Justices Weigh Gender Equity Law

The landmark gender equity law known as Title IX, which touched off a revolution in women’s sports, came before the Supreme Court on Tuesday as the justices debated whether to protect coaches and teachers who complain that their schools or colleges fail 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 in court to enforce those laws.

But three years ago, a more conservative court changed course and said it would no longer assume that 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 Alabama’s Spanish-speaking residents who complained that the state driver’s exam was in English only.

Relying on the newly announced, stricter approach, a federal judge in Alabama threw out a lawsuit brought by a Birmingham girls’ basketball coach who was stripped of his duties in May 2001 after he complained his team received less funding and was provided poorer equipment and facilities than the boys’ team.

The coach, Roderick Jackson, sued the school district under Title IX of the Education Amendments of 1972, which 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 a full sports program 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 could cut off federal funds to the school or college if it continued to violate Title IX.

The high court took up 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 newer, more conservative approach that shuns lawsuits.

And 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.

Walter Dellinger, the former U.S. solicitor general during the Clinton administration, and a Bush administration attorney, Irving Gornstein, joined in arguing that coaches and teachers had a right to sue to enforce Title IX. They noted that, since 1969, the court had said that the laws against race and sex discrimination in schools and colleges could 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.

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 whistle-blowers to sue.

“Retaliation [against a whistle-blower] is itself discrimination under Title IX,” said Gornstein, an assistant solicitor general, adding that the Education Department’s regulations made clear that Title IX forbid schools and colleges to retaliate against persons who complained 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 had 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, referring to the Office of Civil Rights.

By contrast, a lawsuit could be costly to the school system, including its sports teams. If Coach 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.

She also questioned whether it was realistic to think the government would cut off federal funds. In response to her questions, lawyers defending the school board conceded that no college, university or school district had 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 she also has voted with the court’s liberal bloc in cases involving sex discrimination.

She asked several questions Tuesday about how the complaint procedures worked and what became of Jackson. She did not telegraph how she intended to vote, however.

Jackson kept his teaching post and was later rehired as interim coach of the girls’ basketball team. His lawsuit seeking back pay for his lost time as a coach has never gone to trial.

It will be several months before the court issues a ruling.