Aug. 22, 2006

Court Allows Title IX Retaliation Claim

A former athletics director who accused Lafayette College of retaliating against her for complaining about sex discrimination can seek damages against the institution under Title IX of the Education Amendments of 1972, a federal appeals court ruled Monday. Several legal experts said they believed the case was the first in which a federal appeals court had applied (to higher education, at least) a 2005 U.S. Supreme Court decision that permitted such suits under Title IX.

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In March 2005, a deeply divided Supreme Court, ruling in a case brought by a high school coach in Birmingham, Ala., said that individuals who bring complaints about sex discrimination under Title IX can seek damages from colleges or schools that retaliate against them for blowing the whistle. Title IX bars educational institutions that receive federal funds from discriminating on the basis of gender. Some observers speculated at the time that the ruling in Jackson v. Birmingham Board of Education could encourage high school and college coaches and teachers to be more willing to complain about inequitable treatment of female athletes, if they knew their institutions could be held accountable for damages if retaliation ensued.

Legal experts agree that the Jackson decision has not opened the door to a rush of new lawsuits under Title IX. But it has kept alive Eve Atkinson’s lawsuit against her former employer, Lafayette.

Atkinson sued Lafayette in 2001, charging that it had violated federal civil rights laws and Pennsylvania law by firing her in 1999 after she complained about what she characterized as the college’s inequitable treatment of women’s sports. A federal judge dismissed her Title IX claim in 2002, concluding that there was no evidence that Congress intended to create a private right of action against retaliation under the law, and then dismissed the rest of her case in 2003. Atkinson appealed to the U.S. Court of Appeals for the Third Circuit, which withheld a ruling on the case pending the outcome of the Supreme Court’s deliberations in Jackson.

In its decision Monday, a three-judge panel of the Third Circuit upheld the lower court judge’s dismissal of all but one of Atkinson’s claims, which dealt with breach of contract, discrimination and retaliation under other federal and state laws. But it cited the Supreme Court’s Jackson decision in directing the lower court judge to consider her retaliation claim under Title IX. “The basis for the District Court’s dismissal in Atkinson’s case for failure to state a claim for relief under Title IX is inconsistent with the decision in Jackson,” the Third Circuit panel said. “Accordingly, the dismissal of Atkinson’s Title IX retaliation claim must be vacated and the case remanded for further proceedings consistent with Jackson.”

Alan B. Epstein, a lawyer for Atkinson — who is now a professor of recreation, health and physical education at Pennsylvania’s Cheyney University, where she had served as athletics director — said that it “had been apparent to everyone” that her lawsuit was a Title IX case, and a spokesman for Lafayette agreed. “After the Supreme Court ruling on Title IX retaliation, which came while this case was pending, we felt this issue should be remanded so it could be argued appropriately by both sides, and we stated that to the court,” said Glenn Airgood, director of public information at the college.

He added: “Setting that issue aside, we are very pleased that all other issues in this case have been resolved in favor of the college. We intend to argue the remaining issue vigorously, if and when it comes before the court.”

That language, and similar words from Epstein, the lawyer for Atkinson, suggest that the case may settle before the lower court gets a chance to decide whether Lafayette actually retaliated against Atkinson.

— Doug Lederman

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