By James W. Brosnan
Scripps Howard News Service
March 30, 2005
Women's advocates cheered Tuesday when the Supreme Court ruled that federal anti-sex-discrimination law shields whistleblowers from retaliation. But school boards feared the decision would prompt lawsuits from many demoted and fired coaches.
The justices ruled 5-4 that high-school girls basketball coach Roderick Jackson can sue the Birmingham (Ala.) Board of Education to try to prove that he lost his post because he complained that the girls were denied access to the gym and the school bus used by the boys' team.
But the flood of briefs in the case from associations representing school boards, colleges, states, teachers and coaches spoke to the broader impact of the decision beyond Jackson's supplemental pay as a coach.
"My hope is that it will empower and embolden coaches to be good advocates of their student-athletes," said Nancy Hogshead-Makar, a professor at the Florida School of Law in Jacksonville and a winner of three gold medals in freestyle swimming at the 1984 Los Angeles Summer Olympics.
Hogshead-Makar credits Title IX, the 1972 law prohibiting sex discrimination in schools receiving federal funds, with ensuring that she had plenty of scholarship offers in 1980. (She chose Duke.)
But until Tuesday's decision, it's not been clear that anyone other than the students themselves could complain about sex discrimination without fear of retaliation.
"Coaches are scared to death. They know their girls are getting the short end of the stick and they're worried about their jobs," said Hogshead-Makar, who wrote a brief in the case for the Women's Sports Foundation.
Jackson, who has always kept his full-time position as a teacher at Ensley High School, agreed. "When people like myself know they are protected, they will be more likely to come forward," said Jackson, 39. He added that the ruling would allow students and administrators a chance to fix the problems.
"Indeed, if retaliation were not prohibited, Title IX's enforcement scheme would unravel," Justice Sandra Day O'Connor wrote for the majority.
But Justice Clarence Thomas, writing the dissent, said retaliation is not discrimination on the basis of sex and that "nothing prevents students - or their parents - from complaining about inequality in facilities or treatment."
The case affects sex discrimination in classes and other extracurricular activities besides sports, noted Donna Euben, staff counsel at the American Association of University Professors.
"It will signal to faculty members that they won't be fired for speaking out if they identify general discrimination on campus," Euben said.
Julie Underwood, the lawyer for the National School Boards Association, said the decision allows underperforming coaches and faculty members to "wrap themselves in Title IX" and "pave another path to the courthouse."
One expert on Title IX said it could take several trials like Jackson's to know the full effect of Tuesday's decision.
The legal burden will be on Jackson now to prove not only that he complained about the discrimination but also that there was a connection between those complaints and his losing the coaching job, said Barbara Fick, an associate professor of law at Notre Dame Law School.