Fall 2004

ABA Files Section-sponsored Amicus Brief in Title IX Case

The ABA filed a Section-sponsored amicus curiae brief on behalf of petitioner in Jackson v. Birmingham Bd. of Ed. (No. 02-1672), in which the U.S. Supreme Court will decide whether Title IX of the Education Amendments of 1972 provides a private right of action to redress employer retaliation against employees seeking to vindicate Title IX-based rights on behalf of others. Jackson, a high school girls’ basketball coach, was stripped of his coaching duties after complaining that the rights of his students had been violated.

The brief argues that, although Title IX does not provide expressly for a private right of action for retaliation, Congress regarded an express provision unnecessary in light of federal case law recognizing such a right as inherent in other federal anti-discrimination laws. The legislative history of Title IX also supports a private right of action for retaliation, as Congress made clear that Title IX was intended to extend to the educational setting the anti?discrimination mandates of Title VII of the Civil Rights Act of 1964, which includes a prohibition against retaliation.

The brief also argues that access to the courts to redress retaliation is especially important under Title IX and other civil rights-in-education statutes because, as a practical matter, enforcement of these statutes rely almost entirely upon the willingness of third parties, such as teachers and coaches, to contest discrimination on their students’ behalf. Without the ability of third parties to seek adequate redress for retaliation, Title IX rights are far less likely to be enforced.
The brief is consistent with Section-sponsored policy, passed by the ABA House of Delegates at the 2004 ABA Annual Meeting in Atlanta, expressly acknowledging a private right of action for retaliation under Title IX. It also serves ABA Goal II -- “To promote meaningful access to legal representation and the American system of justice for all persons regardless of their economic or social condition” -- for, as argued in the brief, without a private right of action against retaliation under Title IX, the ability of lawyers to effectively vindicate Title IX-based rights on behalf of those subjected to gender-based discrimination nationwide will be severely curtailed.

The Court is expected to decide the case by June 2005. For a copy of the brief, visit the Section’s website at www.abanet.org/irr.

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