In an important decision on Tuesday, the Supreme Court ruled that whistle-blowers accusing educational institutions of sex discrimination are protected from retaliation. Read more about the decision in The Chronicle of Higher Education (account needed for access). As it broadens the category of “protected” individuals under federal law, the ruling may have a significant impact on free speech on campus. Here’s an excerpt from the Chronicle:
Meanwhile, Mr. Thomas, the school board’s lawyer, worries that the ruling will cause a groundswell of litigation from people battling sex discrimination who already have an administrative forum in which to voice their complaints. “Economically speaking,” he said, “that could be a drain on the school board and other employers who receive Title IX funds.”But Ms. Samuels of the National Women’s Law Center said that the court’s decision would inhibit, not encourage, such litigation.“This ruling ultimately is a benefit to schools because it will encourage people to come forward to make schools aware of potentially discriminatory conditions and to enable them to address those conditions before the situation ripens into a lawsuit,” she said.Former U.S. Sen. Birch Bayh, who helped draft Title IX, said the court’s ruling reflected Congressional intent. Now “the Roderick Jacksons all over the country, men and women, can do a better job of enforcement at the local level,” he said.
Without the fear that their institutions will retaliate against them for bringing sex discrimination to light, said Mr. Bayh, coaches and teachers “can be the ultimate enforcers of Title IX.”
While I hope the ruling does help empower individuals to report real discriminatory practices that may be taking place on campuses, I also fear its potential chilling effect on expression about gender-related issues (especially when interpreted and applied incorrectly). This is a good time for administrators, teachers, students, and all other members of the campus community to review the Office for Civil Rights’ July 28, 2003, reminder that “[t]here is no conflict between the civil rights laws that this Office enforces and the civil liberties guaranteed by the First Amendment.”