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Hawaii erred in joining
foes of Title IX integrity

THE ISSUE The U.S. Supreme Court has ruled that the Title IX anti-discrimination law protects people against retaliation for reporting violations.

THE landmark 1972 law barring sex discrimination by educational institutions receiving federal funds has narrowly survived a legal challenge to its effective enforcement. By a 5-4 vote, the U.S. Supreme Court ruled that Title IX, authored by the late Rep. Patsy Mink, shields whistleblowers from retaliation. The ruling protects the integrity of a law that has been vital in expanding opportunities for women and girls in sports, education and other activities.

The Lingle administration joined Alabama and seven other states in arguing against protection of whistleblowers. In an amicus brief, they claimed that the threat of cutting off federal funds to institutions violating the law has been adequate in preventing bias on the basis of gender.

The brief that the Hawaii Attorney General's Office signed onto was authored by Kevin Newsom, Alabama's solicitor general. He argued that the Justice Department's power to order withholding of funds from institutions found violating the law is enough to assure compliance.

Newsom maintained in oral arguments before the high court in November that the rarity of known retaliations against whistleblowers in such cases shows "that Title IX's remedial apparatus is kicking along just fine without the implied right of action" by those retaliated against. More likely, it shows that few have been willing to risk retaliation by reporting Title IX violations by their employers.

Title IX does not explicitly allow whistleblower lawsuits, but the federal government has interpreted it to protect against retaliation of those who report violations. Without that protection, "individuals who witness discrimination would be loath to report it, and all manner of Title IX violations might go unremedied as a result," Justice Sandra Day O'Connor wrote for the court's majority.

The case was brought by Roderick Jackson, the coach of a girls' basketball team at a high school in Birmingham, Ala., who complained that the boys' team was provided better conditions for playing and practicing. He consequently was stripped of his coaching position and the extra pay that went with it, although retaining his tenured job as a gymnastics teacher. Jackson sued the Birmingham School Board for striking back at him.

Jackson's lawsuit was dismissed by a federal district judge in Birmingham and the Atlanta-based 11th U.S. Circuit Court of Appeals. Those decisions, if allowed to stand, would have undermined Patsy Mink's legacy.

"Reporting incidents of discrimination is integral to Title IX enforcement and would be discouraged if retaliation against those who report went unpunished," O'Connor wrote.

Fear by Hawaii and other states that whistleblower protection will lead to a new wave of lawsuits have nothing to worry about as long as they comply with Title IX.