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Greetings, Court Fans!

After last week’s throttling of the Ninth Circuit, the Court decided to pick on somebody else today, reversing the Second and Eleventh Circuits. First, in Jackson v. Birmingham Board of Education (02-1672), a 5-4 majority held that Title IX, the statute prohibiting sex discrimination in federally-funded education (most notably in athletic departments), provides a private right of action for retaliation claims. After Jackson, a male high-school girls’ basketball coach, complained about unequal funding and treatment of his team, the Board stripped him of his coaching duties. He sued under Title IX, 26 U.S.C. § 1681, but the District Court and Eleventh Circuit held that the statute’s private right of action, implied by the Supreme Court in a line of cases dating to 1979, does not cover retaliation for reporting discrimination.

The Court reversed, in a narrow majority led by Justice O’Connor. The majority relied heavily on the proposition that while Title IX does not expressly mention retaliation, Congress enacted a “broad prohibition” on sex discrimination when it wrote the statute. Retaliation is discrimination because it is an intentional act that subjects the victim to differential treatment, and it occurs “on the basis of sex” when it is a response to a complaint about sex discrimination; therefore, such retaliation constitutes a violation of Title IX. Moreover, Title IX was enacted only three years after Sullivan v. Little Hunting Park, Inc., 396 U.S. 229 (1969), which held that a general ban on race discrimination in housing provided a cause of action for those who advocate for minority tenants, and Congress presumably expected Title IX to be interpreted in similar fashion. The Court rejected the Board’s argument that Jackson could not sue because he was only an “indirect” victim of sex discrimination, relying again on Sullivan and on the fact that Title IX’s effectiveness depends on whistleblowers. Finally, although Title IX was an exercise of Congress’ Spending Clause powers, making its provisions akin to a contract with the States, the Board could not claim that it lacked notice that it might be held liable for retaliation in light of the broad interpretation accorded the statute and the fact that its implementing regulations prohibit retaliation.

Justice Thomas led the four dissenters (the others, you might have guessed, were the Chief, Scalia and Kennedy), who took issue with just about everything in the majority opinion. First, the dissenters believed that Jackson’s retaliation claim was not for discrimination “on the basis of sex,” because the natural meaning of that phrase was on the basis of the plaintiff’s sex (not somebody else’s), and Jackson’s sex had nothing to do with his removal as coach. Second, a retaliation plaintiff does not have to show that sex discrimination actually occurred, only that he thought it did and that he suffered retaliation as a result – meaning that retaliation is not itself discrimination but a separate and distinct claim that Congress chose not to include in Title IX. The dissent distinguished Sullivan on the ground that it held only that a white lessor had standing to assert the rights of his black lessee – a third-party claim in which, unlike Jackson, the lessor would necessarily have to prove that discrimination occurred. The majority’s reasoning wrongly extends Title IX beyond its express class of intended beneficiaries – victims of actual sex discrimination. Third, “Congress must speak with a clear voice” when it imposes liability on the States via its spending power, but “the Court’s rationale untethers notice from the statute” by looking at regulations that say nothing about a private right of action and by “requir[ing] clairvoyance from funding recipients.” Finally, a prophylactic whistleblower mechanism created “out of whole cloth” is unnecessary to effectuate the purpose of Title IX, as nothing prevents parents and students from bringing complaints.

In the second case of the day, City of Sherrill v. Oneida Indian Nation of New York [“OIN”] (03-855), the Court considered whether the City could collect property taxes on land that was once part of the OIN reservation, was purchased and inhabited by non-Indians for generations, and then reacquired by OIN. Reversing the Second Circuit, the Court held (8-1) that the land is not exempt from taxation. For those of you who are not Indian law buffs, the Court’s decision can be summed up in a sentence: “Given the longstanding distinctly non-Indian character of the area and its inhabitants, the regulatory authority constantly exercised by New York State and its counties and towns, and the Oneida’s long delay in seeking judicial relief against parties other than the United States, we hold that the Tribe cannot unilaterally revive its ancient sovereignty . . . over the parcels at issue.”

For those who want the details (and a history lesson), here goes: OIN is the descendent of the Oneida Nation, which once held six million acres of land in central New York. In a 1788 treaty with New York State, the Oneidas ceded all their land to the State except for a reservation of about 300,000 acres. In 1790, Congress passed the Indian Trade and Intercourse Act (“Nonintercourse Act”), which barred the sale of tribal land without the acquiescence of the Federal Government, and in 1794 Congress entered into the Treaty of Canandaigua, which guaranteed the Oneidas’ “free use and enjoyment” of their reserved territory. Despite these Federal efforts to safeguard tribal land, New York continued to purchase land from the Oneidas (and the Federal Government eventually stopped trying to interfere with the sales). By 1920, the Oneidas held only 32 acres in New York.

OIN has recently begun repurchasing pieces of its historic reservation, and the current controversy arose because OIN refused to pay taxes on those properties, arguing that their original purchase violated the Nonintercourse Act. The Court accepted a similar claim in County of Oneida v. Oneida Indian Nation of N.Y, where it permitted OIN to pursue a claim for damages against the County premised on the fair rental value of the land at issue (a fairly small parcel). But the Court (Ginsburg, J.) distinguished that prior case based on the type of relief sought, damages versus an injunction against the payment of taxes. This type of equitable relief was inappropriate given the “long lapse of time” before OIN exercised its rights and the “dramatic changes in the character of the property.” The Court was clearly concerned that if the reacquired land were held exempt from taxes, OIN would bring new challenges claiming that the land was exempt from all forms of regulation by the State, which might create a “checkerboard of alternating state and tribal jurisdiction in New York State – created unilaterally at OIN’s behest” that would burden state and local administration and adversely affect neighboring landowners. Furthermore, in 25 U.S.C. § 465, Congress provided a method through which tribes may reacquire historic land and obtain sovereignty over it, and OIN should have pursued this process. Justice Souter filed a separate concurrence to note that OIN’s failure to act (laches) is relevant not only to the issue of remedy but also to the determination of sovereign status over the land. While laches was not raised in the questions presented, the Court properly addressed the issue since each side addressed it at argument.

Stevens was the lone dissenter, which is pretty amazing since he had argued against the availability of damages in the earlier County of Oneida case. For Stevens, the fact that the land was “Indian Country” – which no party disputed – required the conclusion that it was tax-exempt absent action by Congress. This remedy was far less invasive than the damages action authorized by County of Oneida: “It seems perverse to hold that the reliance interests of non-Indian New Yorkers that are predicated on almost two centuries of inaction by the Tribe do not foreclose the Tribe’s enforcement of judicially created damages remedies for ancient wrongs, but do somehow mandate a forfeiture of a tribal immunity that has been consistently and uniformly protected throughout our history.” Stevens also took issue with the majority’s consideration of issues such as laches and impossibility since the City had not preserved these defenses, and he chastised the majority for deciding the case “on the basis of speculation about what may happen in future litigation over other regulatory issues.”

Finally, the Court granted cert in one more case on Monday, Brown v. Sanders (04-980), which will be heard next term. The questions presented are:

1. Is the California death penalty statute a “weighing statute” for which the state court is required to determine that the presence of an invalid special circumstance was harmless beyond a reasonable doubt as to the jury’s determination of penalty?

2. If an affirmative answer to the first question was dictated by precedent, was it necessary for the state supreme court to specifically use the phrases “harmless error” or “reasonable doubt” in determining that there was no ‘”reasonable possibility” that the invalid special circumstance affected the jury’s sentence selection?

That’s all for now, but we expect a few more opinions before the Court goes on recess (again) from April 4 through April 18. Until next time, thanks for reading!

Ken & Kim

From the Appellate Practice Group at Wiggin and Dana. For more information, contact Kim Rinehart, Ken Heath, Aaron Bayer, or Jeff Babbin at 203-498-4400