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You'll Never Work (or Play) Here Again: A Lingering Question in Title IX Retaliation Claims Brought by Coaches and Athletes after Jackson v. Birmingham Board of Education

30 Pages Posted: 18 Jul 2012  

Brian Porto

Vermont Law School

Date Written: July 17, 2012

Abstract

Schools and colleges have made enormous progress toward gender equity in sports in the forty years since the enactment of Title IX. Nevertheless, problems remain, including a tendency to retaliate against whistleblowers who complain about unequal treament of male and female athletes. Perhaps the best-known Title IX whistleblower in the United states is Roderick Jackson, a girls' high school basketball coach whose complaints to superiors about mistreatment of his team resulted in the loss of his coaching job. But he was vindicated when the United states Supreme Court held in Jackson v. Birmingham Board of Education that the private right of action implied by Title IX encompasses claims of retaliation against whistleblowers. A lingering question after the Jackson decision is whether the law will protect from retaliation a complainant who mistakenly contends that his or her institution has violated Title IX. This article considers alternative answers to that question and recommends using either a contextual reasonableness or good faith standard, instead of the existing reasonable belief standard, to determine whether a plaintiff in a Title IX retaliation action honestly thought the conduct originally complained of was unlawful. Either recommended alternative reflects the youth and lack of legal sophistication of many Title IX complainants, and the remedial purpose of Title IX, better than the reasonable belief standard does.

Keywords: Title IX, sex discrimination, Jackson v. Birmingham Board of Education, National Women's Law Center, Fresno State University, Title VII, retaliation, reasonable belief standard

Suggested Citation

Porto, Brian, You'll Never Work (or Play) Here Again: A Lingering Question in Title IX Retaliation Claims Brought by Coaches and Athletes after Jackson v. Birmingham Board of Education (July 17, 2012). 22 No. 2 Marquette Sports Law Review 553 (Spring 2012). Available at SSRN: https://ssrn.com/abstract=2111260

Brian Porto (Contact Author)

Vermont Law School ( email )

68 North Windsor Street
P.O. Box 60
South Royalton, VT 05068
United States

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