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Title IX protects whistleblowers who report inequities, court rules

WASHINGTON—The Supreme Court gave dramatic new breadth to a landmark sex discrimination law Tuesday, saying it protects whistleblowers who complain about gender inequities in education.

The justices, in a contentious 5-4 ruling, said those who stand up for victims of sex discrimination become victims themselves if they're fired or otherwise punished for their advocacy.

The court said Title IX, the 1972 law whose requirements for equality have fueled an explosion in women's athletics, also provides a shield for coaches and teachers who demand that girls get access to the same sports resources and facilities as boys.

"Reporting incidents of discrimination is integral to Title IX enforcement and would be discouraged if retaliation against those who report went unpunished," Justice Sandra Day O'Connor wrote for the court majority. "Without protection from retaliation, individuals who witness discrimination would likely not report it ... and the underlying discrimination would go unremedied."

Justices Ruth Bader Ginsburg, Stephen Breyer, David Souter and John Paul Stevens joined O'Connor in the ruling.

Justice Clarence Thomas dissented, saying Congress didn't explicitly address retaliation in Title IX. His opinion was joined by Justices Anthony Kennedy and Antonin Scalia, and Chief Justice William H. Rehnquist.

The court ruling earns Roderick Jackson a hearing in federal court, where he will still have to prove that he was fired from his job as a girls' basketball coach because he complained to Birmingham, Ala., officials about how unfairly his team was treated.

The ruling also earned the ire of advocates for school officials, who had urged the court to deny Jackson's claims.

"The court just paved another path to the courthouse door for people wanting to sue schools," said Julie Underwood, general counsel for the National School Boards Association. "We're trying to limit the amount of litigation and encourage people to use other avenues, because money spent in court won't be spent in the classroom."

Underwood said the ruling also does nothing to improve conditions for Jackson's team.

"He's suing for damages, not to change things," she said. "I don't see how that's a victory for those girls."

The ruling marks a significant expansion of civil rights law by a court that has generally narrowed the scope of federal authority in this area. In particular, the decision is a rare instance in which the justices seem to embrace the idea that a general anti-discrimination law can provide protection for indirect victims.

"It's significant because in large part this is a court that doesn't accept that kind of logic anymore," said Michael Selmi, a George Washington University law professor who specializes in discrimination law. "They've trimmed the scope of those kinds of protections quite a bit since the 1990s, and the lower courts have taken their cue to trim them even further."

Selmi said it was important for the court to stand up for whistleblowers under Title IX, though, because it's the only way it would have any teeth.

"It doesn't work without that protection, so if they had not done this, it really would have weakened the law," he said.

The Birmingham school district had argued to the court that retaliation couldn't be covered by Title IX, because it says nothing explicitly about it. That distinguishes it from other civil rights laws, which enumerate the things that are protected.

But O'Connor, in her opinion, said Title IX doesn't list any specific discriminatory practices, so "its failure to mention one such practice does not tell us anything about whether it intended that practice to be covered."

She then compared Tuesday's ruling with Sullivan v. Little Hunting Park, Inc., a 1969 decision that upheld the rights of a white man who opposed discrimination against blacks in a private park and, as a result, saw his own membership revoked. The law in that case said nothing about retaliation, but the court still found room to protect the white man's rights.

O'Connor said that case was decided just three years before Congress adopted Title IX, and it's reasonable to assume that lawmakers intended for Title IX to conform to Sullivan.

"Retaliation for (Roderick) Jackson's advocacy of the rights of the girls' basketball team in this case is `discrimination,' `on the basis of sex,' just as retaliation for advocacy on behalf of a black lessee in Sullivan was discrimination on the basis of race,'" O'Connor wrote.

Thomas, a former chairman of the Equal Employment Opportunity Commission, took issue with much of O'Connor's reasoning. He said the "common sense" meaning of the phrase "on the basis of sex," mandates that people covered by the law suffer direct discrimination.

"For example, suppose a sexist air traffic controller withheld landing permission for a plane because the pilot was a woman," Thomas wrote. "While the sex discrimination against the female pilot no doubt adversely impacted male passengers ... one would never say that they were discriminated against `on the basis of sex' by the controller's action."

Thomas said the court was returning to the days when it "created remedies out of whole cloth" and substituted its own policy judgments for Congress'. "The question before us is only whether Title IX prohibits retaliation, not whether prohibiting it is good policy," Thomas wrote.

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(c) 2005, Knight Ridder/Tribune Information Services.

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