People don't like “complainers.” Or, more accurately, people in power don't like people who complain about wrongdoing within institutions. And that is especially true if the complaint is about alleged discrimination and the complainers are women and/or persons of color.

According to social psychologists, women and racial minorities who complain about discrimination are perceived as irritating, hypersensitive, and all-around troublemakers. And these negative perceptions persist even in the face of persuasive evidence that their complaints of discrimination are entirely justified.

People who experience discrimination know the uphill battle they face. Even if a victim is aware that discrimination has occurred, statistically, he or she is overwhelmingly unlikely to tell anyone in a position of authority. Research shows that victims are acutely aware of the costs of raising concerns of discrimination.

Not surprisingly, the fear of retaliation is the number one reason victims give for their silence: a victim who is not promoted because of discrimination may fear that if she complains, she will find herself out of the running for any future advancement within the company – or, worse, demoted, or fired.

For all of these reasons, the Supreme Court's decision in Jackson v. Birmingham Board of Education ranks among the most important of the Court's 2005 Term. There, the Court recognized the right to sue for retaliation under Title IX, the federal law barring sex discrimination in federally funded education programs. (Title IX protects employees of educational institutions as well as students, although sometimes their claims are decided under Title VII instead.)

There is, however, a looming question the decision did not resolve – one that may be as, or even more, important than the basic question of whether a coach's suit for retaliation can succeed. The question is whether a complainer who happens to be legally or factually wrong about his or her claim of discrimination, can legally suffer retaliation for that complaint.

THE FACTS AND CLAIMS IN JACKSON

In 1993, Jackson began coaching the girls’ basketball team at Ensley High School in Birmingham, Alabama. He alleges that his team was denied equal funding and equal access to sports facilities and equipment, as compared with the boys’ teams at the same school. Jackson also alleged that he complained to his supervisors about the discrimination.