Does Title IX Protect Against Retaliation in the First Place?
The Supreme Court will undoubtedly hold that Title IX’s ban on discrimination includes a ban on retaliation. The legislative history, the text of the statute, administrative regulations, and the general rule that such bans are part-and-parcel of nondiscrimination laws make this outcome not only inevitable, but correct. Retaliating against someone for complaining about discrimination furthers the discrimination itself, and is thus inextricable from the illegal conduct. Conversely, if retaliation is not separately illegal, Title IX’s guarantees will be very difficult to enforce – for anyone who complains may anticipate paying a costly price. Congress had evidence of widespread instances of retaliation against women in educational institutions who had complained about sex discrimination, in a variety of forms, on campus. Against that backdrop, it enacted Title IX. Retaliation unfortunately remains a common practice, and nondiscrimination statutes must be construed to prohibit it. Imagine
