Title IX and Retaliation: The Impact of Jackson v. Birmingham Board of Education on Higher Education

In 2005, the United States Supreme Court rendered a closely divided opinion that extends the protections against discrimination provided by Title IX of the Education Amendments of 1972 to include a private cause of action for retaliation in Jackson v. Birmingham Board of Education. Therefore, “whistleblowers,” or employees who report allegedly discriminatory practices, can file suit against employers who retaliate against them on the basis of their complaints under the auspices of Title IX, which prohibits discrimination “on the basis of sex” by recipients of federal education funds. Unlike other federal anti-discrimination laws such as Title VII of the Civil Rights Act of 1964, retaliation is not expressly mentioned within the text of Title IX, and the Supreme Court reasoned that the broad language of the statute encompasses implied protections against retaliation, regardless of the gender of the employee who alleges retaliatory action. As a result of Jackson, the first generation of litigation against colleges and universities under this expanded standard has begun to navigate the federal courts. This article analyzes the Supreme Court’s opinion in Jackson and the related cases representing the first application of the retaliation standard articulated therein to colleges and universities. The article concludes with suggestions for insulation from liability associated with alleged retaliation claims against administrators and educational institutions.