Title IX prohibits sex discrimination by recipients of federal education funding: "[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." 20 U.S.C.A. § 1681(a). The Court has previously read this language to imply a private cause of action, to allow money damages for intentional discrimination, and to include sexual harassment.

The Supreme Court, in a 5 to 4 decision authored by Justice O'Connor in Jackson v. Birmingham Bd. of Educ., 125 S. Ct. 1497 (2005), has created a new class of Title IX plaintiffs including teachers and students who are retaliated against for complaining that another group suffers sex discrimination.

Jackson involved a male teacher who coached a girls' high school basketball team and came to suspect that the girls' team received unequal funding and access to the school's athletic equipment and facilities. Mr. Jackson complained to school officials. Those officials were unresponsive to his complaints, but subsequently gave Mr. Jackson unfavorable evaluations ultimately resulting in his removal from his coaching position. Mr. Jackson then filed suit.

The District Court dismissed the suit on the basis that Title IX did not authorize a person to sue for retaliation. The Eleventh Circuit Court of Appeals affirmed this decision, but offered a more extensive rationale for finding against Mr. Jackson.

First, the Court of Appeals stated the text of Title IX did not authorize a person to sue for retaliation. Second, a Department of Education regulation that prohibited retaliation against gender discrimination complainants did not provide a basis for Mr. Jackson's suit because the regulation went beyond the scope of the statute. Third, the Court of Appeals held that even if Title IX prohibited retaliation the coach was not protected by the statute.

A majority of the Supreme Court disagreed with the Eleventh Circuit's first and third conclusions. Justice O'Connor wrote that, "retaliation against a person because that person has complained of sex discrimination is another form of intentional sex discrimination encompassed by Title IX's private right of action." Justice O'Connor used the following propositions to support the majority's position: (1) Prior case law makes it clear that Title IX implies a private right of action to enforce its prohibition against intentional sex discrimination; (2) Congress gave Title IX a "broad reach;" (3) "Discrimination" is a broad term covering a wide range of intentional unequal treatment; (4) "Retaliation is, by definition, an intentional act;" and (5) "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."

The majority acknowledged that Title IX lacked anti-retaliation language as found in Title VII of the Civil Rights Act of 1964 which expressly prohibits retaliation. This omission was not considered to bar Mr. Jackson's suit. Justice O'Connor held Title VII is a "vastly different" statute from Title IX. In particular, "Title IX is a broadly written general prohibition on discrimination, followed by specific, narrow exceptions. . . .by contrast, Title VII spells out in greater detail the conduct that constitutes discrimination in violation of that statute." Thus, "Because Congress did not list any specific discriminatory practices when it wrote Title IX, its failure to mention one such practice does not tell us anything about whether it intended that practice to be covered."

The majority did not rely on Department of Education regulations that extended Title IX beyond its intended scope. Rather, the Court reached its result based on the language in the statute. "We hold that Title IX's private right of action encompasses suits for retaliation, because retaliation falls within the statute's prohibition of intentional discrimination on the basis of sex."

Justice O'Connor rejected the 11th Circuit's additional holding that, even if Title IX prohibited retaliation, it did not encompass claims on behalf of "indirect victims" of discrimination. Justice O'Connor wrote,

The statute is broadly worded; it does not require that the victim of the retaliation must also be the victim of the discrimination that is the subject of the original complaint. If the statute provided instead that 'no person shall be subjected to discrimination on the basis of such individual's sex' then we would agree with the Board. However, Title X contains no such limitation.

Title IX's "on the basis of sex" requirement is met where retaliation occurs because a teacher, student, or other person complained about sex discrimination.

School Districts should take note of the ease with which the Court set aside the Birmingham Board of Education's reliance on the principal that as to legislation enacted by Congress under its spending power, "private damages actions are available only where recipient of federal funding had adequate notice that they could be liable for the conduct at issue." The Supreme Court has held that the awareness requirement does not create an obstacle to private suits for damages where a funding recipient's intentional conduct violates the clear terms of a statute. Retaliation against individuals who complain of sex discrimination was found to be intentional conduct that violated Title IX's clear terms.

Furthermore, the majority found the Board had notice that it could not retaliate against the coach. Justice O'Connor provided that the notice requirement in this case was met as, "funding recipients have been on notice that they could be subjected to private suits for intentional sex discrimination under Title IX, since 1979, when we decided Cannon." The Supreme Court held in Cannon v. University of Chicago, 441 U.S. 677 (1979) that Title IX implies a private right of action to enforce its prohibition on intentional sex discrimination. Justice O'Connor also noted that regulations implementing Title IX, which expressly prohibit retaliation, have existed for nearly 30 years.

It is noteworthy that Justice Thomas, joined by Chief Justice Rehnquist and Justices Scalia and Kennedy filed a dissent that contests every point of the majority's decision. Given the current political climate and the likely retirement of one or two Supreme Court Justices in the very near future, it is hard to predict whether this case indicates a shift in federal rights issues or whether it merely affirms Justice O'Connor's belief in effective enforcement of gender discrimination prohibitions and the balancing role she and Justice Kennedy play.

The issues that cause School Districts and their counsel concern: