Justice Department enters bias suit

The brief supports a USF basketball player, but attorneys differ on its meaning to the case.

By GRAHAM BRINK, Times Staff Writer
© St. Petersburg Times
published April 4, 2002

TAMPA -- The U.S. Department of Justice has weighed in against the University of South Florida in a discrimination lawsuit filed by a former women's basketball player.

But the two sides in the suit are at odds over what it means to the future of the case.

The Justice Department wants permission from the presiding judge to file a brief that supports former player Dione Smith's case proceeding to trial. The brief, called an amicus brief or friend of the court brief, would urge U.S. District Court Judge Steven Merryday to deny USF's request for part or all of the case to be dismissed.

According to a copy of the brief made public Wednesday, Department of Justice officials say the case should go forward because Smith has presented enough evidence that the university retaliated against her after she complained of racial discrimination.

The brief stems from a legal debate taking place across the country about whether plaintiffs like Smith can sue for retaliation under Title VI of the 1964 Civil Rights Act. Title VI forbids discrimination on the basis of race, color or national origin in programs that directly receive federal funds.

A recent U.S. Supreme Court decision on the matter has led a few federal judges to dismiss cases similar to Smith's on the basis that plaintiffs cannot sue for retaliation under Title VI.

The Justice Department argues in its brief that individuals such as Smith have a right to sue. The Justice Department has filed similar briefs in other retaliation cases.

Smith has filed one of 12 related suits against USF and former coach Jerry Ann Winters that claim racial discrimination in the women's basketball program in the 1990s and early 2000s. The suits state that Winters subjected black players to harsher treatment than white players. The players claim they were retaliated against when they came forward, in some cases by being kicked off the team.

The university and Winters have denied the allegations. None of the cases has gone to trial. Smith's is scheduled for April 22.

The opposing lawyers in Smith's case have vastly different opinions of how important the brief could be to the case. Smith's lawyer, Jonathan Alpert, called the move a "major development" that lends credibility to Smith's argument.

"The other side has tried to trivialize this case. This makes it much harder to do that," Alpert said. "It's like a stamp of approval from the government agency that enforces Title VI issues."

USF's lawyer Thomas Gonzalez and Winter's lawyer John Goldsmith said the brief means very little. The Justice Department has filed these briefs in other cases, they said, and is simply trying to stake out a position on whether the scope of Title VI includes claims of retaliation.

Gonzalez said if the Justice Department wanted to seriously back Smith's claim, it would have joined the suit as an active participant and helped to try the case.

"Can something be read into the fact that they have remained on the sidelines? Maybe. Maybe not," he said. "But if they thought it was a great case, they could intervene as an active party."

-- Contact Graham Brink at (813) 226-3365 or brink@sptimes.com.

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