In Birmingham, Ala., a high school girl’s basketball coach, Roderick Johnson, noticed something he believed was a violation of Title IX regulations. The girl’s program was receiving fewer resources than the comparable men’s program, leaving Johnson’s program at a competitive disadvantage, in his opinion.
Historically, Title IX has been used as a way to increase the number of women’s athletics programs across the country. It has had an adverse affect, owing to Title IX enforcement by the Department of Education’s Office of Civil Rights, at cutting the number of athletic opportunities for men on college campuses.
So, Johnson went to school officials and Birmingham Board of Education members to discuss what he saw as a Title IX violation. Instead of increasing the funding for the girl’s basketball program, Johnson was let go as coach but was allowed to remain as a teacher. He eventually sued, saying the Birmingham Board of Education retaliated against him for pointing out the possible violation.
Lower courts ruled against Johnson, dismissing his claim on the grounds he did not have a case of discrimination. In late March, however, the Supreme Court overturned those decisions. By doing so, the Court has expanded Title IX to allow for retaliation lawsuits, never included in the original legislation written more than 30 years ago, by saying that anyone who is retaliated against under Title IX is discriminated against on the basis of sex.
The 5-4 decision in Jackson v. Birmingham Board of Education paves the way for more lawsuits to be filed by outside parties and on the basis of sexual discrimination. It’s a misguided decision that fails to address the true reforms needed to make Title IX a more fair and applicable regulation.
Justice Sandra Day O’Connor, who sided with the more liberal wing of the court, wrote in the majority opinion that litigation had been implied under Title IX statues and case law. Now, the floodgates are open; anyone who thinks his Title IX issue wasn’t properly addressed by an institution may sue that institution on the basis of sexual discrimination.
“[R]etaliation is discrimination ‘on the basis of sex’ because it is an intentional response to the nature of the complaint: an allegation of sex discrimination,” O’Connor wrote. “We conclude that when a funding recipient retaliates against a person because he complains of sex discrimination, this constitutes intentional ‘discrimination’ ‘on the basis of sex,’ in violation of Title IX.”
The decision turns away from the intent of “on the basis of sex” phrase in Title IX. Its intent was to cover sexual discrimination, regardless of sex, at federally funded institutions. Outside parties, in the original intent of the legislation, have no sexual discrimination claim for alleging a Title IX violation. Sexual discrimination, as it relates to Title IX, can only be implied if a school fails the three-prong compliance test of a proportionate number of male and female athletes compared to the number of male and female students, a history and continued practice of providing opportunities for the underrepresented gender, or “fully and effectively” met the interest and abilities of the underrepresented gender.
Justice Clarence Thomas, writing the dissenting opinion, best describes the failure of an outside party to prove a sexual discrimination claim. In his opinion, Thomas wrote that passengers of an airline flight would not be able to file a sexual discrimination case against a sexist air traffic controller who failed to give landing instructions to a female pilot. Though the passengers were adversely affected by the air traffic controller’s actions, Thomas wrote, as was Jackson, you could not argue that they were discriminated against “on the basis of sex.”
“Congress’ usage of the phrase ‘on the basis of sex’ confirms this commonsense conclusion,” Thomas wrote.
However, the majority disagreed, wrongly, using an argument that was presented by Jackson’s attorney about two athletes – a male and a female – who complain about Title IX violations and were suspended. In the majority opinion, that would be considered as much an act of sexual discrimination as the violation itself.
One can only imagine the number of lawsuits that will be filed because of this new ruling. Parents, teachers, coaches, and anyone in the general public can now sue, claiming sexual discrimination if an institution retaliates against their claim of a Title IX violation.
What happens if a school investigates an alleged Title IX violation and finds that there was no violation? Does the person who filed the complaint now sue claiming that they were a victim of sexual discrimination? It’s a real possibility.
True Title IX reform does not mean allowing more lawsuits. It means improving the enforcement of regulations so that opportunities are not taken away only to create new ones. This decision is a far cry from a true Title IX reform.
Shannon Blosser (sblosser@popecenter.org) is a staff writer with the John W. Pope Center for Higher Education Policy in Chapel Hill.