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High court hears Title IX whistleblower case

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WASHINGTON-The Supreme Court will decide whether a law designed to promote gender equality in educational programs offers protection to whistleblowers as well as victims of sexual discrimination.

The federal government believes that Title IX of the Education Amendments Act of 1972 does protect whistleblowers, Irving Gornstein, assistant to the U.S. solicitor general, told the high court as the justices heard oral arguments in Roderick Jackson vs. Birmingham Board of Education last week. The law is best known for promoting equitable funding for sports for both sexes.

And some legal experts say that the court's decision could have implications beyond educational institutions to other workplaces subject to employment rights litigation.

The case involves whether Mr. Jackson can pursue a lawsuit against the Birmingham, Ala., school board because he lost his job as a girls' high school basketball coach after he repeatedly complained that the facilities provided for the girls' team were not as good as those provided for the boys' team. Mr. Jackson, who kept his job as a physical education teacher, said that he lost his coaching position in retaliation for his complaints and sued for back pay and reinstatement as a coach. The board of education said that Title IX, unlike some other anti-discrimination laws, does not allow private lawsuits for retaliation claims.

Both a district court and a three-judge panel of the U.S. 11th Circuit Court of Appeals in Atlanta upheld the school board's position. Alabama Solicitor General Kevin Newsom, one of two lawyers arguing the case for the school board before the Supreme Court, said that whistleblowers are not "left out in the cold," and that they can seek administrative remedies under Title IX. "There just aren't many of these retaliation claims out there," he said.

Administrative remedies available under the law range all the way to a school losing federal funds because it violated Title IX. Mr. Newsom told the high court the lack of retaliation claims brought under Title IX shows that the administrative remedy approach is doing what it is supposed to do.

In a brief filed with the Supreme Court in support of the school board's position, the Alexandria, Va.-based National School Boards Assn. and several individual school boards and other educational groups said they "fully support the policy of nondiscrimination underlying Title IX." But the brief continued that its signatories "also have a critical interest in reducing wasteful litigation against public schools and other institutions of learning and in ensuring the effective management of school, college and university personnel."

The brief also noted that "litigation against school boards represents a diversion of scarce resources and a distraction from their mission of academic achievement that the nation's schools can ill afford."

The Washington-based National Women's Law Center, which represented Mr. Jackson, holds that the case could have implications beyond the scope of Title IX.

"I think that this is an important cases that is much broader than Coach Jackson alone or even coaches in general," said Jocelyn Samuels, vp-education and employment for the law center. "The case concerns Title IX directly but also has implications for the enforcement of many other significant civil rights laws. The case will determine whether anyone-a teacher, coach, a student or a parent-can speak up without fear of punishment when they see the laws being violated."

"If they can't, the amount of discrimination will increase and the advances made under the civil rights laws over the last several decades will be at risk. If they can't, neither our daughters nor their daughters will have truly equal opportunities in our schools. We hope that the Supreme Court will agree," Ms. Samuels said.

An employment law expert with no ties to the case agreed that the court's ultimate decision could have ramifications for employers other than educational institutions.

"For employers facing civil rights and workplace litigation, a pro-plaintiff ruling in Jackson might fuel new types of bias claims and categories of claimants," said Gerald L. Maatman Jr., a partner at the Chicago law firm of Seyfarth Shaw. "The Supreme Court may well interpret Title IX's ban on sex discrimination to provide a cause of action for retaliation. If so, this would represent a new entrance to the courthouse via an expansive reading of the statute."

Mr. Maatman added that the "other key issue is whether the Supreme Court will hold that a male coach-who is retaliated against but not himself a victim of discrimination under Title IX-is nonetheless within the category of potential plaintiffs to whom a cause of action is allowed. If so, this would give plaintiffs in civil rights and workplace bias litigation a platform and an argument for expanding the categories of plaintiffs who may sue."