May it please the Court…
Walter Dellinger refines his argument in Duke Law Moot
Professor Walter Dellinger draws a full house in the Law School’s largest lecture hall November 19th, when he previews his argument in Jackson v. Birmingham Board of Education in a moot, preparing for his November 30, 2004 Supreme Court appearance. He begins by spending a few minutes briefing those assembled on the case, in which he represented the petitioner, Roderick Jackson, pro bono, on behalf of the National Women’s Law Center.
Jackson, a high school girls’ basketball coach in Birmingham, Alabama, had complained to school and school board officials about differences in treatment between the girls’ and boys’ teams that he felt violated federal Title IX legislation; Title IX bars gender discrimination in school programs. Jackson was fired from his coaching job, and he sued pro se, alleging unlawful retaliation for his complaints. While Title IX does not expressly mention retaliation, Dellinger explains, Jackson argued–as he would to the Supreme Court–that retaliation, while not expressly mentioned in the statute, is itself a form of discrimination. The district court dismissed Jackson’s action and the Court of Appeals for the Eleventh Circuit affirmed, holding “that even if the school board had retaliated against Jackson, Title IX provides no remedy through a private lawsuit based on retaliation for claims of discrimination against others.”
While his associates take copious notes in the front row, Dellinger launches into his argument before a panel of five justices–Duke Law Dean Katharine Bartlett and Professors Jeff Powell, Catherine Fisk, and Jedediah Purdy, and Professor Elinor Schroeder, of the University of Kansas Law School.
The justices start questioning Dellinger within seconds of his opening, and are unrelenting. After five minutes have passed, it doesn’t seem like they are looking favorably on his claim that Title IX bans retaliation:
Justice Fisk: That’s not how we understand the language of the statute. The statute says “discrimination, not retaliation.”
Professor Dellinger: The question is whether Coach Jackson has been discriminated against. Only he has been released from duty. He was singled out because he complained about violations of federal law.
Justice Purdy: But he has to be discriminated against on the basis of sex.
Professor Dellinger: He was discharged because he complained about sex discrimination.
Justice Powell: Would it matter if Jackson was a woman?
Professor Dellinger: No.
Justice Powell: Then he hasn’t been discriminated against because of his sex.
Justice Bartlett: Is it your argument that retaliation is discrimination?
Professor Dellinger: Yes. He was singled out for attempting to correct gender discrimination.
Justice Bartlett: Where do we draw the line in terms of who brings the action? Can someone who just notices the discrimination bring the action?
Professor Dellinger: Those who are subject to adverse action that gives rise to a compensable claim.
Dissecting Dellinger’s argument following the moot, Fisk makes an observation about Title IX issues.
“In this area, above all else, you are dealing with a population of underage people. It’s hard enough for the coach to come forward. It’s the coach or guidance counselor who will be the surrogate of the kids discriminated against because they must be able to do so without threat of retaliation.”
“Aha!” Dellinger responds. “We do need to bring this out more forcefully!”
Filing out of the lecture hall, Paige Burgess ’07 reflects on the exchange.
Dellinger argued on behalf of petitioner Jackson on November 30, 2004. A decision is pending at press time.
“I think it’s interesting to see how he has to decide which course of action he wants to take, and how they critiqued what he presented today. In some cases they said ‘no, you probably shouldn’t say that.’ It will be interesting to see how he’s going to change his argument.”
Adds Garrett Levin ’06, “[The moot] is a fantastic opportunity for students to see real legal issues being worked out between some of the smartest people in the world. It’s helpful for me to think about how to construct arguments–how best to think of things that are weaknesses or strengths.”