Man, I throw like a woman.

Oral argument from the court.
Nov. 30 2004 6:35 PM

Man, I Throw Like a Woman

The Supreme Court explores the subtleties of sex and basketball.

Illustration by Robert Neubecker

Talk about taking one for the team. …

Dahlia Lithwick Dahlia Lithwick

Dahlia Lithwick writes about the courts and the law for Slate. Follow her on Twitter.

Roderick Jackson bitched to his bosses about the second-class treatment accorded the girls' basketball team he coached at Ensley High School in Birmingham, Ala. Banished from the school's new gym, Jackson's team practiced in an unheated, rickety facility where its hoops literally drooped from age. When Jackson's bosses fired him, he filed suit under Title IX, a federal sex discrimination statute. The district court and then the 11th Circuit Court of Appeals rejected his claim that being fired for protesting gender discrimination itself constitutes an act of gender discrimination for which he was entitled to sue under Title IX.

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Title IX of the Education Amendments of 1972 bars gender discrimination in educational and other programs receiving federal funds and permits the government to stop funding entities engaging in sex discrimination. In a 1979 case, Cannon v. University of Chicago, the Supreme Court held that victims of sex discrimination also had a private right to sue under Title IX. The question for the Supreme Court today is whether Title IX additionally created a private cause of action for people who were fired for complaining about sex discrimination against others. The court will decide whether the statute covers whistle-blowers or just victims.

Walter Dellinger (whom I know and edit) represents Jackson, and he argues this morning that it does no good to protect teenage athletes in a vacuum. "People like Coach Jackson need to come forward," he argues. "Students are minors, they don't know about budgets." Justice Antonin Scalia points out that the civil rights statutes that sought to protect against retaliatory firings "expressly provide for that." It's not logical to infer that Congress intended for the word "discrimination" to also include "retaliation" unless Congress explicitly said so. Dellinger responds that Title IX is identical to Title VI, which has long been understood to include retaliation in its definition of discrimination.

Quoting the statute, Scalia says he can't see where Coach Jackson was "on the basis of sex … excluded from participation in … denied the benefits of, or … subjected to discrimination under any education program." He asks whether that "even remotely describes" Jackson's experience.

Justice Anthony Kennedy notes that the '60s are so over: "This is not the heyday of private causes of action anymore." And Scalia objects to adding a new list of possible lawsuits to beleaguered school boards: "When the states signed on," he says, "they couldn't know this door to litigation was being opened to them." Dellinger counters that there is "no way that when the school districts accepted these [federal] funds, they thought they'd be free to retaliate."

Justice Sandra Day O'Connor, who will likely be the deciding vote in this case, asks whether Jackson availed himself of the administrative remedy available to him under Title IX before trying to sue own his own behalf. David Souter rephrases that question as: "Why do we need a private cause of action and not just this administrative remedy? Is the administrative remedy too draconian?" The justices confirm that termination of federal funding for schools based on Title IX violations are rare. At which time Scalia points out that maybe Title IX works "because the sanctions are so draconian. No one in their right minds wouldn't rehire a coach" if faced with a withdrawal of federal funds.

Irving Gornstein is an assistant to the solicitor general, and he argues for 10 minutes on Coach Jackson's side of the case. Many oral advocates have accidentally called Justice Ginsburg "O'Connor" over the years. Gornstein calls O'Connor "Justice Kennedy" this morning, thus proving that the two swing justices are merging inexorably into one great fungible Justice of Goo. Gornstein points out that in 1969 in Sullivan v. Little Hunting Park, the Supreme Court found that the statutory ban on racial discrimination encompassed retaliation and that Congress was well aware of the Sullivan rule when it passed Title IX in 1972.

Scalia asks wryly, "Do you think we take the same approach to implied causes of action today that we took in 1969?" He rejects the idea that "we'd go skipping along forever as we did in 1969." Bong in one hand, bong in the other. … And O'Connor reminds him that "Mr. Jackson was not discriminated against because of his gender." Gornstein replies that any "person who is victimized by retaliation because he complained about sex discrimination is a victim of sex discrimination."

The Birmingham Board of Education is represented by Kenneth Thomas, whose accent makes Dellinger's soft Carolina drawl sound Brooklynesque. Thomas opens with the claim that when there's a Title IX complaint, the Office for Civil Rights swoops in, and then there's hell to pay at school. "We know about OCR. They're in Atlanta, 167 miles away," he says. "And when they come, they come. …"Thomas goes on to argue that a private cause of action under Title IX offers no benefits to the team itself: "With a private suit, the award goes only to the coach," he says. "Nothing would go to benefit the girls' basketball team."

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