Law Review Case Note Analyzes Jackson v. Birmingham

The current issue of the Wyoming Law Review includes a case note called "No Hitting Back: Schools Have to Play by the Rules," which analyzes Jackson v. Birmingham, the 2005 Supreme Court decision holding that a victim of retaliation has a private right of action under Title IX.

The author, Elisa Butler, concludes:

While the Court's reasoning was convincing in some respects, there were three major-but never articulated-arguments that could have significantly bolstered the opinion. First, the Court should have rebutted the dissent's contention that, because Title VII specifically calls for protection against retaliation and Title IX does not, this means that retaliation is not covered under Title IX. This argument was erroneous and the majority could have pounced on it. Second, the majority neglected to make any arguments based on Title IX regulations. There is a specific regulation that prohibits retaliation that, if used, would have made for a more complete opinion. Finally, the Court overlooked the four-part Cort test that it had previously used to determine when to imply rights of action. Given the major ramifications of this decision, a more thorough and convincing analysis was appropriate.

For more see 7 Wyo. Law Rev. 577 (2007).