Dellinger stressed that, without protection against retaliation, Title IX would be toothless in cases such as that of the Ensley High girls' basketball team, because the students need an adult to take their complaints to the authorities. Also, complaints to the Education Department have never resulted in a cutoff of funds, Dellinger noted.
"You can't expect teenagers themselves to carry this burden," Dellinger said.
Roderick Jackson was coach of girls' basketball in an Alabama high school.
(Melina Mara -- The Washington Post)
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Justice Sandra Day O'Connor, who voted in the majority in 2001 and has been a strong supporter of women's rights on the court, seemed skeptical that Jackson was a victim of discrimination -- but also curious whether private lawsuits or threatened funding cutoffs would have a greater practical effect in enforcing Title IX.
When Assistant Solicitor General Irving L. Gornstein rose to present his argument in favor of Jackson, O'Connor did not even wait for him to say "May it please the court" before asking him how often schools face administrative sanctions for retaliation against those who allege Title IX violations.
Gornstein said he knew of no such cases.
Justice Stephen G. Breyer hammered that point home, noting to Thomas that a white person could bring a federal suit if he were retaliated against for associating with a black person.
"Why isn't this the same thing?" he asked Thomas.
"Don't we have to consider at some point what the intent of Congress was?" Thomas replied. He added: "Over there in Congress is where this debate needs to be."
The case is Jackson v. Birmingham Board of Education, No. 02-1672. A decision is expected by July.
