B’Ham Bd. Of Ed. Settles Landmark Case

I meant to put this up yesterday:

Lawyers for teacher Roderick Jackson and the Birmingham Board of Education settled Tuesday night a 5-year-old gender-discrimination lawsuit that went to the U.S. Supreme Court in 2005, lawyers for both sides said.

The school board approved the settlement after emerging from a 10-minute closed session at the end of a board meeting.

Speaking for the board, attorney Kenneth Thomas said Jackson will receive $50,000. His lawyers will receive $340,000. . . .

Jackson, then an Ensley High teacher and coach, filed suit against the school board in 2001, contending he lost his job as head coach of the girls’ basketball team after he complained that the team was being treated unfairly when compared with the boys team.

The school, of course, argued that it fired Jackson not because he complained about gender discrimination, but because he was a sorry employee. That’s what the jury would have decided if this had gone to trial. If it found that he was fired for being a bum, then the school would have won. If it found that he was fired for complaining about the discrimination, then he would have won. We’ll never know what actually happened, though, because the Board decided there was too great a risk of losing big at trial to proceed and therefore decided to settle.

That kind of lawsuit happens every day. What made this one interesting – and what got it to Scotus – was whether Jackson could even bring a lawsuit under the relevant federal law. In the normal case, the person who sues for gender discrimination is the person directly discriminated against. The typical plaintiff is someone like the members of the girls’ team in this case. Jackson, though, was not the direct victim of gender discrimination. Rather, he complained about it occurring to someone else.

The Board argued that the law did not allow suits for retaliation against whistle blowers. Scotus, in a remarkably short opinion, said, yeah it does.

Here’s the statute (28 U.S.C. 1681(a):

“[n]o person in the United States shall, on the basis of sex, be excluded from participation in, be denied the benefits of, or be subjected to discrimination under any education program or activity receiving Federal financial assistance.”

The Court explained that the retaliation was “on the basis of sex” because Jackson had complained that the girl’s team received less resources than the boy’s team. And it was “discrimination” because Jackson was treated differently than other similarly situated individuals. In short:

retaliation is discrimination “on the basis of sex” because it is an intentional response to the nature of the complaint: an allegation of sex discrimination. We conclude that when a funding recipient retaliates against a person because he complains of sex discrimination, this constitutes intentional “discrimination” “on the basis of sex,” in violation of Title IX.

You may not like the statute at issue, but I think this result is the proper reading of the statute. The Court pointed out that if the statute protected people from being discriminated against on the basis of “their sex” then the result would have to be different. But it doesn’t say that. It prohibits discrimination on the basis of sex. That was exactly what Jackson alleged in this case, and Scotus was correct to let the lawsuit proceed.

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