GPSolo Magazine - September 2006

Individual Rights & Responsibilities
Sex Discrimination in Education: Miles to Go Before We Sleep

The U.S. Supreme Court decided a case in March 2005 that provides a stark reminder of how far we still have to go in both establishing basic legal principles interpreting our anti-discrimination laws and eliminating the discrimination they prohibit. In Jackson v. Birmingham Board of Education, a high school coach who was fired for complaining about the unequal treatment of his girls’ basketball team sued his school for retaliation under Title IX of the Education Amendments of 1972, the federal law prohibiting sex discrimination in, under, or by federally funded education programs. The lower courts dismissed his complaint on the ground that Title IX does not provide a private right of action for retaliation, despite the fact that all other circuits to address the issue have held otherwise. The Supreme Court reversed.

Jackson ’s principles and Title IX. In a 5-4 opinion the Supreme Court held that retaliation against people who complain of sex discrimination is itself a form of intentional sex discrimination prohibited by Title IX and that a private cause of action is therefore available to redress the injury suffered. Writing for the majority, Justice Sandra Day O’Connor held that the Eleventh Circuit ignored the Court’s prior holdings construing discrimination under Title IX broadly, and that retaliation is an aspect of discrimination that does not need to be expli-citly mentioned in a general anti-discrimination statute. Moreover, because Title IX prohibits sex discrimination under any education program, to be covered, the victim of the retaliation does not also have to be the victim of the discrimination that is the subject of the original complaint. The Court recognized that “[r]eporting incidents of discrimination is integral to Title IX enforcement and would be discouraged if retaliation against those who report went unpunished.” The impact of this decision, like others interpreting Title IX, extends to analogous statutes prohibiting other types of discrimination in federally funded programs, as well as to constitutional principles addressing discrimination and institutional liability.

Important issues remain unresolved. Jackson resolved one of the many Title IX legal issues that had yet to be decided despite the decades the law has existed. For instance, the Court has now made clear that a damages remedy for intentional discrimination is available under a Title IX private right of action, but the nature of the proof necessary to secure damages remains unresolved.

Similarly, the Supreme Court has held that a private right of action is available under Title VI for intentional discrimination only, not for discrimination resulting from practices having a disparate impact on the basis of race or national origin. Most lower courts have assumed that such a limitation applies to Title IX as well, but its scope and application are unclear. This issue is especially important in addressing some of the discriminatory barriers young women face in securing nontraditional educational options.

Nor has the Court ruled on the Title IX standards prohibiting sex discrimination in athletics. All ten circuits to consider Title IX’s athletics policies, in place since 1979, have upheld and applied them. However, in March 2005 the Bush administration adopted a “clarification” of the policies, weakening a key aspect of the requirements relating to the provision of equal participation opportunities.

Sex discrimination remains. Discrimination against women and girls in education persists in career and technical education, math and science programs, and athletics, to name a few. Girls represent more than five out of six students in courses leading to traditionally female occupations and fewer than one out of six students in courses leading to nontraditional occupations. The traditionally female fields pay substantially lower wages than nontraditional fields and therefore have serious implications for girls’ future economic security. Successful practices used by various states to increase female enrollment in nontraditional subjects dispel the notion that girls are not interested in these subjects. Rather, states’ experiences show that young women’s enrollment in nontraditional courses rises when they are edu-cated about and encouraged to participate in these classes.

At a time when the United States is falling further behind in science, technology, engineering, and mathematics, addressing the barriers that hinder women’s participation in these fields could not be more important. Yet, according to the National Science Foundation, the number of women who received undergraduate degrees in computer and information sciences actually fell to 28 percent in 1999 from a high of 37 percent in 1984. As a study conducted at the Massachusetts Institute of Technology makes clear, women and girls face multiple barriers to pursuing careers in these fields. They continue to confront stereotypes about their interests, abilities, and commitment to work. They lack mentors and role models, are discouraged by their professors, and face sexual harassment and hostility.

Young women continue to face discrimination on the playing field, with women receiving only about one-third of the overall athletic operating budgets and dollars spent to recruit athletes. Each year female athletes receive about $130 million less than male athletes in athletic scholarships, which affects their economic security and possibly their ability to attend school at all.

The road ahead. Title IX is a powerful tool that can remedy the discrimination women and girls continue to face in education, but its effectiveness is dependent on courts’ willingness to interpret its provisions in a way that gives force to Congress’s intent that it apply broadly. With so many key issues to be resolved, the role of the courts will be critical in the years to come.

Similarly, administrative enforcement of Title IX is essential. People may file complaints with the relevant federal agencies, or the agencies may initiate compliance reviews. If a recipient of assistance is found to have discriminated and voluntary compliance cannot be achieved, the federal agency can either initiate fund termination proceedings or refer the matter to the Department of Justice. Concerns have arisen, however, regarding reduced resources given to these key enforcement agencies and a lack of will to enforce Title IX.

Great concern exists, for example, regarding the Department of Education’s March 2005 athletics clarification, which weakens the standards as to the participation opportunities schools must provide to female students. Women’s organizations and others, including the National Collegiate Athletic Association, have objected strongly to the change. The degree to which schools will take advantage of this new policy, with its legality under question, is unclear. But what is clear is that the department will not be applying the strong policy in its own investigations that had been in effect since 1979.

The country has come a long way since Title IX was enacted, but we have miles to go to make the promise of the law a reality. Especially with cutbacks in administrative enforcement, future interpretations and applications of this landmark civil rights law in the courts are extremely important. Now is no time to turn back the clock.

 

Marcia D. Greenberger is co-president of the National Women’s Law Center in Washington, D.C.; she can be reached at mgreenberger@nwlc.org. Neena K. Chaudhry is senior counsel at the National Women’s Law Center; she can be reached at nchaudhry@nwlc.org.

For More Information about the Section of Individual Rights and Responsibilities

- This article is an abridged and edited version of one that originally appeared on page 19 of Human Rights, Fall 2005 (32:4).

- For more information or to obtain a copy of the periodical in which the full article appears, please call the ABA Service Center at 800/285-2221.

- Website: www.abanet.org/irr.

- Periodicals: Human Rights, quarterly journal; IRR News Report, quarterly newsletter; IRR E-newsletter, bimonthly electronic publication.

- CLE and Other Educational Programs: The Section offers a variety of cutting-edge CLE programs and teleconferences each year; for more information, please visit our website.

- Events: Thurgood Marshall Award Reception and Dinner, held each year during the ABA Annual Meeting.

 

Back to Top

< /