Does Title IX Make Retaliation Illegal?
All this is settled. But two questions still remain open, and the Jackson case raises them. The first issue is this: Does Title IX prohibit not only sex discrimination itself, but also retaliation against those who complain about sex discrimination? A federal regulation bans retaliation under Title IX, but some argue that the regulation exceeded the statute’s authority – and the Eleventh Circuit apparently holds that position. In so holding, the Eleventh Circuit relied upon the Supreme Court’s 2001 decision in Alexander v. Sandoval. There, the Supreme Court was interpreting Title VI, a federal antidiscrimination statute very similar to Title IX. The Eleventh Circuit read Sandoval to suggest that the courts may not imply rights of action without clear Congressional intent, and that no such intent exists under Title IX, at least with respect to prohibiting retaliation. Other courts, however, have strenuously disagreed – noting that, as I discussed above, the Supreme Court has repeatedly
