Supreme
Court Creates New Whistleblower Cause Of Action
The United States Supreme Court on March 29, 2005 in Jackson
v. Birmingham Board of Education held that a high school girls
basketball coach who was given negative evaluations and then
removed from his coaching duties after he complained that the
girl’s team was not given adequate funding, equipment and
facilities, can sue under Title IX of the Education Amendments
of 1972.
Title IX prohibits sex discrimination in any educational program
receiving federal funds. The law essentially provides that female
students must have equal opportunities to participate in educational
programs, including participation in athletics programs. The
law can apply to educational institutions from elementary schools
to colleges and universities. Title IX is probably best known
for its impact on women’s athletics, especially at the
college and university level.
Roderick Jackson coached girls’ basketball at Ensley High
School in Birmingham, Alabama. Shortly after transferring to
Ensley High, he learned that the girls’ team was not receiving
the same level of support and funding as the boys’ team.
This lack of equipment, funding and facilities made it difficult
for Jackson to effectively coach his team so he began complaining
to the school about the unequal treatment. His complaints went
unanswered. However, after complaining, he began receiving negative
evaluations and was removed from his coaching duties. Although
still employed as a physical education teacher, Mr. Jackson filed
suit in federal court alleging that the Board of Education violated
Title IX by retaliating against him for complaining about the
unequal treatment.
The Board of Education successfully moved to dismiss his claim
arguing that a private cause of action alleging retaliation could
not be brought under Title IX. The Eleventh Circuit Court of
Appeals agreed, leading Mr. Jackson to appeal to the United States
Supreme Court.
The Supreme Court, in a 5 to 4 decision, held that Mr. Jackson
could assert a retaliation claim under Title IX against the Board
of Education. The Court noted that its past decisions allowed
for private lawsuits to enforce Title IX’s prohibition
of sex discrimination in education and had provided for monetary
damages for Title IX violations. The Court construed the law’s
prohibition on “discrimination on the basis of sex” broadly
to conclude that retaliation against a person who complained
of sex discrimination is another form of intentional sex discrimination.
In a sharply worded dissent, Justice Thomas, on behalf of the
minority, argued that it was commonsense that a claim of retaliation
is not a claim of sex discrimination. He further used Title VII
principles in an attempt to distinguish Mr. Jackson’s retaliation
claim from a sex discrimination claim. The dissent further argued
that whistleblowers should not be given protection unless Congress
specifically authorizes such protection in the law and noted,
for example, that Title VII provides protection from sex discrimination
and retaliation separately.
Nonetheless, the majority of the Court concluded that when an
educational program subject to Title IX retaliations against
a person because he or she complains of sex discrimination,
such constitutes intentional discrimination on the basis of
sex in violation of Title IX. To prevail at trial, Mr. Jackson
will have to prove that the Board of Education retaliated against
him because he complained of sex discrimination.
As a result of this ruling, educational programs receiving federal
funds should be aware that they now can be sued for compensatory
and punitive damages by employees who complain of sex discrimination
under Title IX. For further information on the Jackson decision
or on whistleblower protections under Title IX and other state
and federal laws, contact your Constany attorney or Jonathan
W. Yarbrough at jyarbrough@constangy.com or call (828) 277-5137.
