Commentary: Fitzgerald V. Barnstable

ANNUAL SUPREME COURT REVIEW

OCTOBER TERM 2008

Each year, when the U. S. Supreme Court announces the cases it will hear for the term, Legal Momentum's experts scrutinize the docket for key cases where the Court's decisions could have important and lasting implications for women. The following article by Senior Counsel Amy Katz concerns Fitzgerald v. Barnstable. Legal Momentum joined in an amicus brief on this case.   

December 2, 2008

Supreme Court Considers Ability of Student to
Bring Sex Discrimination Claims Under Both
Title IX and the U.S. Constitution 

By Amy Katz, Senior Counsel, Legal Momentum

The United States Supreme Court will hear arguments today in Fitzgerald v. Barnstable School Committee, a case that raises the question whether Title IX, which prohibits sex discrimination by federally funded educational institutions, precludes claims of unconstitutional gender discrimination in the schools. Thirty-six years after Title IX was enacted, sex discrimination persists in many educational institutions. Consequently, comprehensive protection from discrimination, including the ability to bring constitutional claims, remains necessary to achieve full equal opportunity in education. The Court's decision in this case will have an impact on far more than the one child whose traumatic experience triggered it.  

When Jacqueline Fitzgerald was in kindergarten, she told her parents that whenever she wore a skirt or dress to school a third-grade boy, Briton Oleson, ordered her to pull up her skirt and pull down her underwear while they rode the school bus. This harassment occurred over a six-month period, during which Jacqueline exhibited signs of serious emotional and physical distress. Upon learning of the sexual abuse, her parents immediately complained to the school's principal, who promptly met with them. The Fitzgeralds asked the principal and the school to take action in a variety of ways to address the situation, including transferring Briton to another school bus. The school investigated, and although several students corroborated Jacqueline's statements, the principal determined that the students "were too young to be credible." Briton was not reprimanded and was not barred from contact with Jacqueline. Teachers were not informed of the problem. The school refused to put a monitor on the school bus but offered to transfer Jacqueline to a different bus, which the Fitzgeralds considered to be punishment of the victim, or to separate the older children from the kindergarteners by a few empty rows on the bus. Jacqueline's parents choose to drive her to school rather than allow her to ride the school bus with Briton. At one point after the Fitzgeralds complained, a gym teacher unwittingly instructed Jacqueline to "high five" her tormenter, and Jacqueline began avoiding gym and school. The Fitzgeralds thought the school did not take Jacqueline's accusations seriously and sued the school and its superintendant under two federal laws, claiming Jacqueline had continued to be subject to sexual harassment -- a form of sex discrimination -- that interfered with her education. 

The Fitzgeralds first claimed the school's actions (or inaction) violated Title IX of the Education Amendments of 1972, which prohibits sex discrimination in federally-funded educational institutions or programs.  Most people think of Title IX as a statute requiring equal funding for boys and girls athletic teams. However, on its face Title IX simply prohibits all forms of sex discrimination. It mentions neither sports, nor sexual harassment, nor the right of an individual to sue. The sole remedy for violations that is stated explicitly in Title IX is withdrawal of federal funds from the offending institution. In a series of cases, the Supreme Court has held that: there is an implied right of an individual to sue because she has been discriminated against in violation of Title IX; sexual harassment is a form of sex discrimination prohibited by Title IX; and a student who is a victim of sexual harassment perpetrated either by a school employee or another student may sue a federally-funded school or university for monetary damages. It is difficult, but not impossible, for a student to prevail in a peer sexual harassment case. Among other things, the Supreme Court requires the student to show that someone with appropriate authority at the school knew of the harassment and exhibited deliberate indifference to it.  

The second law under which the Fitzgeralds sued, known as Section 1983, is a federal statute enacted as part of the Civil Rights Act of 1871. It allows a person who has been deprived of a constitutional right by someone acting "under color of state law" (usually a government employee or institution, such as a police officer or public school board, also known as a "state actor") to sue the state actor. Section 1983 is a statute that provides a means for suing rather than providing substantive protection as Title IX does. There has to be an independent basis for a Section 1983 suit: either a statutory or constitutional provision that has been violated. In the Fitzgeralds' case, there were Section 1983 claims for violation of Title IX rights and violation of the Equal Protection Clause of the United States Constitution.  

Both the district court and the First Circuit Court of Appeals judges considered the harassment of Jacqueline "severe, pervasive and objectively offensive," one of the standards for a Title IX suit. However, they dismissed the Title IX claim on the grounds that the school investigated promptly and did not show "deliberate indifference" to Jacqueline's plight. The Section 1983 claims were dismissed on the ground that they were precluded by the existence of the Title IX claim. The question now before the Supreme Court is whether a school and its employees can be sued by a student for sex discrimination under Section 1983, or can be sued only under Title IX.  The underlying facts, disturbing though they may be, are not at issue at this stage and a "win" for the Fitzgeralds would only give them a fresh start with their equal protection claim against the school and the superintendent. Their Title IX claims have not been appealed and will not be reconsidered by the Supreme Court. Whatever the outcome for the Fitzgeralds, the case will resonate well beyond the life of the mistreated Jacqueline. 

Currently, whether and whom an injured student may sue for sex discrimination under Section 1983 varies among the federal circuit (regional) courts of appeals. Some circuits have allowed both Title IX and Section 1983 claims to go forward. Some have seemingly prohibited all Section 1983 claims. Some have prohibited Section 1983 claims against the school but permitted them to go forward against offending individuals, such as a teacher who directly harassed a student. Still others have no clear rule. It was this "split" in the federal circuit court decisions that prompted the Supreme Court to consider the Fitzgerald's appeal. 

Legal Momentum joined an amicus brief in this case filed by the American Civil Liberties Union and the National Women's Law Center arguing that the history, structure and text of Title IX demonstrate that Congress did not intend to preclude the right to use Section 1983 to challenge sex discrimination as unconstitutional. In fact, Congress intended to expand upon constitutional rights that were only beginning to be recognized by the courts when Congress passed Title IX in 1972.  

Today, the Equal Protection Clause's implicit prohibition of sex discrimination is arguably broader than Title IX's explicit prohibition of sex discrimination if for no other reason than that Title IX excludes from its coverage, among other things, many religious schools, single-sex admissions policies, and military schools. Those statutorily exempt activities may nonetheless be unconstitutional. For example, the Supreme Court struck down the Virginia Military Institute's male-only admissions policy as unconstitutional even though Title IX clearly did not apply to the policy. Consequently it is important to maintain the existence of both routes to redress the wrong of sex discrimination in the schools. 

Given the current composition of the Supreme Court and its tendency to deprive individuals of access to the courts, it is logical to fear that the Court will choose to bar the availability of Section 1983 claims, at least in some cases. On the other hand, it is possible that a majority of the Court would be loathe to foreclose a constitutional claim firmly grounded in a Civil War Reconstruction era statute in favor of an implied cause of action under Title IX, a 36-year-old statute. 

What can we reasonably expect from the Court in this case? First, there will definitely be a clarification of the law so that there is one standard throughout the United States and the rights of girls to sue under Section 1983 will no longer differ from region to region. Second, the Court should at a minimum leave open the right to sue under Section 1983 in instances when Title IX suits are not available, such as a challenge to a public school's single-sex admissions policy, or a claim against a faculty member who threaten to lower a student's grade if she does not have sex with him. If, however, a majority of the Court issues a more sweeping ruling, precluding all Section 1983 equal protection claims for sex discrimination against recipients of federal educational funds, then the only means for redress of sex discrimination claims by students would be Title IX. This would be a major step backwards for girls seeking equal educational opportunities and a learning environment free of sexual harassment.  

Ironically, a sweeping prohibition of Section 1983 claims might not have its greatest impact on sexual harassment claims like Jacqueline Fitzgerald's, which would still be actionable under Title IX, but on single-sex education.  The U.S. Department of Education's recently revised Title IX regulations permit the establishment of single-sex public schools and classes, although the Department's own commentary on those regulations acknowledges that those schools and classes may violate the Constitution's guarantee of equal protection. Should the Supreme Court deprive students of the right to sue for violations of the Equal Protection Clause via Section 1983, there would be no statutory mechanism for challenging discriminatory single-sex schools or classes.  

At this point we can only follow the arguments on December 2 and wait for the Supreme Court's decision. If it further contracts access to the courts, then a statutory revision from Congress could restore full access.