Jackson v. Birmingham Board of Education and the Expansion of Title Ix's Judicially Implied Right of Private Action - Darl H. Champion, Jr.

• Jurisdiction: United States,Federal
• Publication year: 2006
• Citation: Vol. 57 No. 3

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Jackson v. Birmingham Board of Education and the Expansion of Title IX's Judicially Implied Private Right of Action

In Jackson v. Birmingham Board of Education,¹ the United States Supreme Court departed from its current trend of hostility toward implying rights of action in federal statutes. In Jackson the Court held that there is an implied private right of action for retaliation under Title IX² when a whistleblower is retaliated against for complaining about sex discrimination.³ As a result, the Court increased the protections to employees and students of funding recipients who report instances of sex discrimination.

I. Factual Background

Roderick Jackson was a teacher and a coach of the women's basketball team at Ensley High School in the Birmingham, Alabama School District. Employed by the Birmingham School District since 1993, Jackson took the position at Ensley in 1999. In December 2000 Jackson started to complain to his supervisors that the women's basketball team was not receiving equal treatment. Despite continued complaints, the alleged unequal treatment continued. In addition to the failure of the school board to remedy the situation, Jackson started receiving negative work evaluations. Finally, in 2001 Jackson was fired as the women's basketball coach at Ensley, although he was retained as a teacher.⁴

Jackson brought suit against the Birmingham Board of Education (the "Board") in the United States District Court of Alabama, alleging, inter alia, his firing violated Title IX's prohibition against sex discrimination. Asserting that Title IX did not grant a private right of action for retaliation, the Board moved to dismiss the suit and the District Court granted the motion.⁵

The Court of Appeals for the Eleventh Circuit affirmed, holding that Title IX should not be read to grant an implied right of action for retaliation claims.⁶ Observing that a Department of Education regulation promulgated under Title IX prohibited retaliation, the court cited Alexander v. Sandoval⁷ for the proposition that regulations cannot create implied rights of action when the regulation proscribes conduct not prohibited in the statute.⁸ Furthermore, even if Title IX did prohibit retaliation, the court held that Jackson was not within the class of persons protected by Title IX.⁹ Jackson sought review in the Supreme Court, which granted certiorari.¹⁰

II. Legal Background

A. Plain Text of Title IX

Enacted by Congress in 1972, Title IX¹¹ prohibits discrimination on the basis of sex under any education program that receives federal funding.¹² The portion of Title IX that prohibits discrimination provides, "No 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."¹³ Title IX does not contain an express prohibition against retaliation.¹⁴ In contrast, other contemporary federal anti-discrimination statutes, such as the Americans with Disabilities Act,¹⁵ the Age Discrimination in Employment Act,¹⁶ and Title VII,¹⁷ all contain express prohibitions against retaliation.

B. Implied Right of Action Cases over time, the Supreme Court has moved away from an approach that is more receptive to implying a right of action in a federal statute and has undertaken an approach that is more reluctant to implying a right of action. The receptive approach was exemplified in J. I. Case Co. v. Borak.¹⁸ In Borak the Court stated that "it is the duty of the courts to be alert to provide such remedies as are necessary to make effective the congressional purpose."¹⁹

Approximately ten years after Borak, the Court in Cort v. Ash²⁰ signaled a shift to a more restrictive approach to implying rights of action. In Cort the Supreme Court developed a four-factor test for determining whether to imply a right of action in a statute:

First, . . . does the statute create a federal right in favor of the plaintiff? Second, is there any indication of legislative intent, explicit or implicit, either to create such a remedy or to deny one? Third, is it consistent with the underlying purposes of the legislative scheme to imply such a remedy for the plaintiff? And finally, is the cause of action one traditionally relegated to state law, in an area basically the concern of the States, so that it would be inappropriate to infer a cause of action based solely on federal law?²¹ @@@

While the focus in Borak was simply on whether an implied remedy would further the legislative purpose, the focus in Cort shifted to whether Congress intended to imply a remedy.²²

The Supreme Court applied Cort's four-factor test in Cannon v. University of Chicago²³ to imply a private right of action under TitleIX.²⁴ In Cannon a female applicant who claimed that she was denied admission to medical school because she was a woman filed suit alleging a violation of Title IX. The district court dismissed the suit on the basis that Title IX did not contain an express or implied private right of action.²⁵ The court of appeals affirmed and the Supreme Court granted certiorari.²⁶ observing that violations of a federal statute do not always give an individual harmed by the violation a private right of action, the Supreme Court applied the four-factor test from Cort to determine whether Congress intended to provide a right of action in Title IX.²⁷ After applying each of the Cort factors, the Court concluded that each factor weighed in favor of implying a right of action.²⁸

Since Cannon, several Supreme Court cases have defined the contours of Title IX's implied right of action. In Franklin v. Gwinnett County Public Schools,²⁹ the Court held that individuals could sue for damages under Title IX.³⁰ In Gebser v. Lago Vista Independent School District,³¹ the Court held that damages could be recovered for teacher-student sexual harassment when an official of the school district with the authority to institute corrective measures had notice of the misconduct and was deliberately indifferent.³² In Davis v. Monroe County Board of Education,³³ the Court held that damages could be recovered from a school district for the failure to correct student-on-student harassment when the school district had actual notice of the harassment, was deliberately indifferent, and the harassment was so severe that it could be said to deprive the victim of educational opportunities and benefits.³⁴

Justice Rehnquist's concurrence in Cannon foreshadowed the Court's subsequent resistance to implying rights of action. Rehnquist wrote, "Not only is it 'far better' for Congress to so specify when it intends private litigants to have a cause of action, but for this very reason this Court in the future should be extremely reluctant to imply a cause of action absent such specificity on the part of the Legislative Branch."³⁵ In two cases decided the same year as Cannon, Touche Ross & Co. v. Redington³⁶ and Transamerica Mortgage Advisors, Inc. v. Lewis,³⁷ the Court implemented its shift to a position more hostile to implying rights of action.

In Touche Ross & Co. ("Touche Ross"), the Court held that the inquiry into whether Congress intended to create a private right of action ends when the plain language of the statute, coupled with the legislative history, does not suggest a legislative intent to create a private right of action.³⁸ Thus, in such cases it is not necessary to apply all of the Cort factors.³⁹ In Transamerica Mortgage Advisors, Inc. ("Transamerica"), decided several months after Touche Ross, the Court reinforced Touche Ross and the shift away from Cort by stating that "[t]he dispositive question remains whether Congress intended to create" a private right of action.⁴⁰ As in Touche Ross, this case effectively undermined the analysis proffered in Cort by making legislative intent, one ofthe factors in the four-factor test, dispositive.⁴¹

Alexander v. Sandoval⁴² provides a recent example of the Court's current approach to implying rights of action. In Alexander the Court addressed whether there was a private right of action to enforce disparate impact regulations promulgated under Title VI of the Civil Rights Act of 1964.⁴³ Under section 601 of Title VI, only intentional discrimination is prohibited,⁴⁴ while activities that have a disparate impact are not.⁴⁵ Under section 602, however, federal agencies are authorized to issue rules, regulations, and orders to effectuate the section 601 provisions.⁴⁶ Using this authority, the Department of Justice ("DOJ") issued a regulation that proscribed the funding recipient from creating "criteria or methods of administration" that had a disparate impact on a group because of race, color, or national origin.⁴⁷

While acknowledging that its prior decisions had implied a private right of action to enforce section 601's ban on intentional discrimination,⁴⁸ the Supreme Court stated that section 601 did not create a private right of action to enforce the disparate impact regulations.⁴⁹ As a result, any right of action to enforce the disparate impact regulations would have to come from section 602 itself.⁵⁰ The Court then anlyzed the text and structure of Title VI, section 602 in particular, to determine whether there was a private right of action under section 602.⁵¹

The Court observed that the rights-creating language found in section 601 was not present in section 602.⁵² Because section 602 focused on the agency doing the regulation, and not on the individual protected, the Court stated that section 602 did not reveal a congressional intent to create a private right of action.⁵³ While the regulations did contain rights-creating language, the Court held that such language could not invoke a private right of action because the regulation, which the Court assumed to be valid for administrative enforcement purposes, prohibited conduct that Congress did not prohibit in the statute.⁵⁴ As a result, the Court held...