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Fickle Fortune and Supreme Happenstance

In Monday's $6 million discrimination verdict in favor of former Fresno State volleyball coach Lindy Vivas, employment lawyer Michael Fox sees a parable for the shifting winds at the Supreme Court. Vivas claimed that Fresno State retaliated against her in violation of Title IX, the federal program requiring gender equity in sports programs, when it terminated her in December 2004. But, as Fox writes at his blog Jottings By An Employer's Lawyer, it may have been a Supreme alignment of timing that paved the way for her victory yesterday.

Just four days before Vivas was terminated, Fox explains, the Supreme Court heard oral argument in Jackson v. Birmingham Board of Education. Four months later, in a 5-4 decision written by Justice Sandra Day O'Connor, the court carved out of Title IX an implied cause of action for retaliation, thereby establishing the legal basis for Vivas to sue. But what if the Jackson case had been decided a year later, after Justice Samuel Alito had replaced Justice O'Connor? Fox writes:

"If the case had been decided just one year later, which given the course of litigation that winds its way to the Supreme Court is really just a matter of happenstance, I don't think there is any doubt how the new Chief Justice Roberts and Justice O'Connor's replacement, Justice Alito, would have been aligned."

For those involved on either side of the Vivas case, the lesson is clear, Fox says: "It is unlikely that you will be able to convince anyone involved in this matter that Supreme Court appointments don't matter."

Posted by Robert J. Ambrogi on July 10, 2007 at 06:26 PM | Permalink | Comments (0)


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