Lower Court Dismisses Former AD's Case Against Lafayette College

Eve Atkinson sued Lafayette College in 2001, arguing that the college terminated her from the athletic director position, which she had held since 1989, in retaliation for her advocacy on behalf of women's athletics and Title IX. A federal court initially dismissed her lawsuit on the grounds that Title IX's private right of action did not cover retaliation claims. Her appeal was stayed pending the Supreme Court's eventual decision in Jackson v. Birmingham Board of Education allowing for private enforcement of Title IX retaliation claims, so the Third Circuit reversed the lower court's decision and reinstated Atkinson's case. Lafayette then moved for summary judgment, arguing that Atkinson did not allege sufficient evidence to support a retaliation claim. Earlier this month, the district court agreed, and again dismissed Atkinson's case against the college.

In particular, the district court determined that Atkinson had not sufficiently alleged that she engaged in protected conduct, the first element of a retaliation claim, because all of her advocacy for gender equity advocacy was done in her capacity as Athletic Director. However, I believe that in requiring a Title IX retaliation plaintiff to be targetted for conduct outside her job duties in order to receive the protection of law, the district court imposes a new and unwarranted requirement that is inconsistent with other Title IX retaliation decisions, including Jackson. Moreover, if it is the case that the college terminated her because of her Title IX advocacy (the district court thinks Atkinson's fails on this element as well) then it should not matter at all whether she was acting against or in accord with her role as the athletic director. I hope that an appeal gives the Third Circuit an opportunity to clarify this legal issue.

Decision: Atkinson v. Lafayette College, 2009 WL 2949295 (E.D. Pa. 2009).

WATN? Coach Roderick Jackson of Birmingham

In the spirit of WHB's "where are they now?" feature, I note that Roderick Jackson, the girls high school basketball coach who brought the successful and groundbreaking Title IX retaliation case against the Birmingham Board of Education, is back in the coaching game -- though coaching a different game. Jackson announced yesterday that he has been hired to coach the girls soccer team at one of the Birmingham high schools, where he will be "building a program from scratch." The article raised the possibility that this new position is part of a settlement agreement between Jackson and the school district. Though Jackson's retaliation case settled in 2006, Jackson has continued to challenge what he argues is the district's failure to comply with the terms and conditions of the agreement that they had reached.

Coach Jackson Fights On

After the Supreme Court confirmed in 2005 that Title IX prohibits retaliation against a coach who advocates for gender equity on behalf of his team, the defendant in that case, the Birmingham Board of Education, eventually settled with the plaintiff, former girls basketball coach Roderick Jackson. However, according to Coach Jackson, the Board has not been living up to its obligations under the settlement agreement. The Birmingham News reports that Jackson filed a motion in federal district court last week asking the judge to find the Board in contempt.

Jackson argues that, contrary to the Board's promise in the settlement agreement, female athletes at Jackson-Olin High School (and likely, other schools in the district) are still receiving inferior athletic opportunities, as measured by things like transportation, uniforms, and access to facilities.

The settlement agreement also obligated the Board to produce a Title IX compliance report. But Jackson maintains that the report is incomplete for failing to compare the financial resources provided to girls and boys sports. (The district's excuse, that it doesn't keep track of donations by "outside sources," sounds suspiciously like the "booster club made me do it" excuse we've heard many times before.) The report was also flawed, says Jackson, for only comparing the numbers of sports offered to boys and girls -- a meaningless statistic in terms of Title IX compliance -- rather than the number of athletic opportunities offered to each sex. Moreover, since Jackson-Olin High School does not satisfy that aspect of Title IX by statistical proportionality (55% of the student population is female, but receive only 36% of athletic opportunities) the report should have explained whether the district is in alternatively in compliance under one of the other two prongs.

Last, the article reports that while the settlement agreement required the Board to reinstate Jackson as head coach, Jackson is currently not serving in that position. Jackson claims this is a result of ongoing discrimination against female athletes and retaliation against him. Jackson reportedly resigned around the time of the settlement, out of concerns that his litigation was a distraction to his team. He rescinded his resignation 8 days later, and even though the Board hadn't acted on it, it refused to rehire Jackson back for the remainder of the season. Nor was he rehired for the position when it was posted for the following school year. Instead, the Board hired a football coach who some players and parents say was "treated them disrespectfully, had little basketball knowledge, and made football his priority."

Another Retaliation Case of Note

Last September, the federal district court in Montana denied Montana State University's motion for summary judgment on a Title IX retaliation suit filed by former head women's basketball coach, Robin Potera-Haskins. Her case is now heading for trial, but is unscheduled as of now.

Potera-Haskins headed the women's basketball program in Bozeman from 2001 until 2004, when the University president gave her the choice between resignation and termination. In her complaint, Potera-Haskins maintains that she was retaliated against in this manner for complaining about the inequitable conditions for the women's program relative to the men's in areas including coaching salaries and benefits, access to facilities, and the university's efforts to secure corporate sponsors and otherwise promote the team. She also alleges that she was singled out for this treatment because she resisted pressure from Athletic Director Peter Fields to offer a spot on the team to a friend of his who lacked the talent required of Division I program.

Potera-Haskins turned a losing MSU program around, posting three winning seasons and two conference championships during her tenure as head coach. Neverthess, MSU defends Potera-Haskins was terminated because of poor performance as a coach and "mistreatment and abuse suffered by the student athletes under her leadership." However, the judge acknowledged that this is a factual dispute properly decided by a jury rather than on summary judgment.
Though this post is belated (the judge's decision's recent publication in the F. Supp. 2d finally brought it to my attention), I am eager to mention it because it helps illustrate the trend of Title IX retaliation cases we have seen in the wake of Jackson v. Birmingham Board of Education, the 2005 Supreme Court decision affirming that Title IX also protects coaches (and others) who complain about inequitable treatment of women's sports. Potera-Haskins is another member of the "team" of female coaches and athletic department administrators who have brought retaliation cases against their colleges or universities -- a list that includes Eve Atkinson, Lindy Vivas, Karen Moe Humphreys, Diane Milutinovich, Stacy Johnson-Klein, Laurel Wartluft, Deena Deardurff Schmidt, and Jaye Flood.

Decision is: Potera-Haskins v. Gamble, 519 F. Supp. 2d 1110 (D. Mont. 2007).

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).

Recent Legal Scholarship on Sport and Gender

Two new articles on sport, law and gender have caught my eye.

First, Professor Suzanne Eckes from Indiana University School of Law has published Title IX and High School Opportunities: Issues of Equity on and in the Court in the current issue of the Wisconsin Women's Law Journal (citation: 21 Wisc Women's L.J. 175). She suggests that after Jackson v. Birmingham, "school districts need to pay even closer attention to Title IX compliance because they may face more challenges from coaches and other observers."

Second, Yael Lee Aura Shy, a third year law student at Northeastern, has an excellent article in the Sports Lawyers Journal (citation: 14 Sports Law. J. 95) called "Like Any Other Girl": Male-to-Female Transsexuals and Professional Sports. Focusing on professional sports, Shy does not directly address the legal status of transsexual athletes in intercollegiate sport. But she does point out the trend of transsexual inclusion policies by sport governing bodies, and cites some evidence suggesting that the NCAA is considering an inclusive policy as well. More generally, she suggests that the discourse surrounding transsexual inclusion cases and policies can undermine gender equality by reinforcing a gender binary and generalizations about physical inferiority of female athletes.

Law Review Comment Addresses Whistleblowing After Jackson

This recently published piece provides a comprehensive look at the Jackson decision:

Lindsay C. Ferguson, Comment, Whistle Blowing Is Not Just for Gym Class: Looking into the Past, Present, and Future of Title IX, 39 Texas Tech L. Rev. 167 (2006).

Seventh Circuit Relies on Jackson in Cracker Barrel Race Discrimination Case

Further proving that Jackson v. Birmingham Board of Education is more than just a Title IX case, the Seventh Circuit Court of Appeals recently relied on the decision to hold that retaliation is prohibited under 42 U.S.C. 1981, a federal civil rights statute that prohibits discrimination in the making and enforcing of contracts.

The plaintiff, Hedrick Humphries, an African American, was an associate manager at a Cracker Barrel restaurant in Illinois. In his complaint against the Cracker Barrel corporation, he alleges that he was fired in retaliation for complaining that disciplinary action against him and the manager's termination of a fellow African-American employee were racially motivated. (In addition to suing under 1981, he also brought a Title VII claim, but forfeited it for failing to press it before the district court.) The district court granted Cracker Barrel's motion for summary judgment, but the Seventh Circuit reversed.

In holding that 1981 covers retaliation, the Seventh Circuit acknowledged that its own prior precedent, which had rejected retaliation claims under 1981, was no longer good law after Jackson, the Supreme Court decision holding that Title IX protects a male coach from retaliation for complaining about inequal treatment of female athletes. Over objections from a dissenting Judge Easterbrook, a majority on the Seventh Circuit panel reasoned that "the Jackson court appears to have jettisoned our prior observation that 'retaliation and discrimination are separate wrongs.'"

The case is remanded to the district court for consideration of the merits of Hendricks's retaliation claims.

Birmingham Board of Education Finally Settles with Coach Jackson

The Birmingham Board of Education has finally settled with Coach Roderick Jackson, the victorious plaintiff in the Supreme Court's important 2005 decision clarifying that Title IX protects whistleblowers who face retaliation for challenging sex discrimination. For background on his case, see prior posts here and here. After the Supreme Court decision, the case returned to district court so that Jackson could prove that the retaliatory discrimination he alleged did in fact occur. But instead, the parties have opted to settle:

Under the settlement reached Tuesday night with the Birmingham Board of Education, Jackson will receive $50,000, his lawyers will receive $340,000, and the board will take all necessary steps to provide female athletes with facilities comparable to those used by male athletes. Jackson had complained in part that his players had to practice in a gym built in 1908 rather than a new one used by boys.

The settlement also assures that Jackson will remain the girls’ basketball coach at Jackson-Olin High School. He had been rehired as interim coach by the Birmingham system earlier.

From AP via New York Times.

A press release from the National Women's Law Center, which represented Jackson on his Supreme Court appeal, also points out that that the settlement requires the Board to appoint Title IX Coordinators for the each school in the system, adopt a Title IX compliance policy and grievance procedure, and conduct compliance training and reviews. Having met Coach Jackson and heard him discuss his motivations for pursuing his case, I believe he is probably at least as happy about these provisions as ones that compensate him personally.

Jackson's Court of Justice

Roderick Jackson is no stranger to the court. But the one he was used to in Birmingham had no heat, crummy rims, and a sloped floor that forced his players to dribble downhill. His fight for better conditions for his team took him to another Court -- one hundred of miles away, adorned with friezes and robes, one where he found himself seated in the gallery next to Walter Dellinger's wife.

Last night Coach Roderick Jackson, the litigant in Jackson v. Birmingham Board of Education, addressed a Western New England College audience of a couple hundred students, faculty, administrators, and members of the Springfield community. We learned about the conditions his players on the girls basketball team faced: they practiced in a cold, old gym with sloped floors. They made their own travel arrangements to the game; their (winning) junior varsity program was eliminated. In contrast, the boys team played in a new facility with comfort and amenities. School buses transported them to all away games. Their (losing) junior varsity team was spared. Jackson pointed out these inequities to school officials in his chain of command, but was told things like "they're just girls" and "don't make trouble." He persisted, believing that not 't fight against the discrimination that he saw was tantamount to participating in it. Eventually his efforts to secure equal treatment for his team got him fired from his coaching position. With the help of a pro bono lawyer, Jackson sued the school board, but when he lost, the lawyer could not help him file an appeal. So Jackson--a teacher, not a lawyer--wrote his appellate brief himself in less than 2 weeks (he learned about the brief deadline when a clerk called to tell him it was 14 days away). The Eleventh Circuit was impressed enough with his arguments to grant a hearing, but in the end it too denied his claims. But Jackson didn't quit, and eventually his case got a boost when the National Women's Law Center and superlawyer Walter Dellinger offered to appeal his case to the Supreme Court. At last, Coach got a "W" last March when the Supreme Court ruled 5-4 that retaliation was actionable under Title IX. The case was remanded and is still pending in the lower courts (no, believe it or not, the school board hasn't conceded).

What was most impressive to me about Jackson's story was the certainty with which he took every step. It didn't occur to him not to raise the issue and fight the school board. Then he loses his coaching job, loses in district court, loses his lawyer. So the man writes his own brief -- as it was the obvious the thing to do, as if accepting the status quo was not even an option. Giving up on a task, which, frankly, intimidates trained lawyers, never seemed to cross his mind. He called that brief as a hail mary pass. But it saved the case by keeping it alive and preserving the possibility for a Supreme Court appeal.

Here is the Coach, along with the panelists who gave context to Coach's story by talking about the history of Title IX and the legal significance of the Court's decision, as well as our college president who honored Coach Jackson with the President's Medallion. From left to right: Professor Curt Hamakawa, WNEC School of Business; Assistant AD Cindy Costanza of WNEC; Professor Erin Buzuvis, WNEC School of Law; Coach Roderick Jackson from Birmingham; President Anthony Caprio of WNEC; Dr. Carol Barr, University of Massachusetts.

Roderick Jackson to Speak at Western New England College

(photo from National Women's Law Center)

Who: Coach Roderick Jackson of Birmingham, Alabama, litigant in Jackson v. Birmingham Board of Education, the Supreme Court Title IX decision we've described here.
When: Thursday, October 5, 7 pm
Where: Rivers Auditorium, Western New England College, Springfield MA

Jackson's Legacy

We here at Western New England College are "wicked psyched" -- as we say in Mass. -- for an upcoming visit from Coach Roderick Jackson, who is speaking on campus next Thursday (stay tuned to Title IX blog for updates and coverage). Yes that's the Coach Jackson, also known as the plaintiff who sued the Birmingham School District after he was removed from his coaching position for challenging his school's lack of support for the girls' basketball team. The case made its way to the Supreme Court and resulted in an important decision affirming that Title IX protected whistleblowers like Jackson against discrimination.

The Jackson decision is already having an effect on Title IX caselaw. Last month, the Third Circuit Court of Appeals invoked Jackson in its decision to reinstate Title IX claims by Lafayette College AD Eva Atkinson against her former institution, which she maintains terminated her employment after she made gender equity a budgetary priorty.

The Third Circuit decision also made clear that protection against retaliation for insisting that one's employer treat female students equitably was a claim squarely in the realm of Title IX -- and not a case of direct gender discrimination that would be actionable under Title VII (statute prohibiting employers from discriminating against employers on the basis of their sex). The court reasoned that Lafayette College's decision to terminate Atkinson had nothing to do with Atkinson's sex, but Atkinson's insistence that the school correct discrimination against certain students as a result of their sex.