An interesting tweet this morning turned me on to a case involving the Barnstable School Committee which wound up at the United States Supreme Court earlier this week. In Fitzgerald, et al., v. Barnstable School Committee, the Supreme Court faces the question about whether Congress meant that law to wipe out constitutional claims by students or parents of sex bias in public school districts or state colleges when it enacted Title IX. The issue arises out of these facts:
Jacqueline Fitzgerald was in the kindergarten at Hyannis West Elementary School during the 2000-2001 school year. Her parents complained to school officials after Jacqueline told them that, every time she wore a skirt to school, an eight-year-old third grader, Briton Oleson, would force her to lift her skirt when they were on the bus, pull down her underpants, or spread her legs, while other students laughed at her. Briton denied the allegations. Other students, as well as the bus driver, were questioned by the school’s administration, but none of them could corroborate Jacqueline’s story. Both school officials and the police became involved in the investigation; they found Briton’s denials credible and concluded that there was insufficient evidence to either charge or punish him.
School officials offered various alternatives, such as putting Jacqueline on a different bus, or segregating younger students from older ones on the bus, but the Fitzgeralds rejected those proposals, saying they were a form of punishment of Jacqueline, not the boy who was harassing her. Instead, the Fitzgeralds asked that the boy be put on a different bus, or that an adult monitor ride the bus each day – proposals that school officials rejected. So, the Fitzgeralds began driving Jacqueline to school themselves. The boy, the parents complained, continued to harass Jacqueline in the hallway at school, so, ultimately, they sued under two federal statutes — Section 1983 and Title IX.
It is quite common for students or parents claiming sex bias at school to make claims under both the Constitution (Section 1983) and Title IX, to maximize their chances for winning some remedy and perhaps, with the constitutional claim, a broader remedy. Section 1983 allows any citizen to sue any state or local official who deprives that citizen of rights under the Constitution or federal law. But the Supreme Court has ruled that the government isn’t liable for private discrimination by one person against another, even if the person discriminating is subject to government regulation and control, and even if the government is aware of, and indifferent to, that discrimination. Title IX protects students from being “subjected to discrimination” in schools regardless of the source of discrimination, even if the discriminator is a student — provided that the school district is on notice of the discrimination and is “deliberately indifferent” to it. Thus, Title IX, unlike the Constitution, allows schools to be held liable for student-on-student harassment if school officials are deliberately indifferent to it. See Davis v. Monroe County Board of Education, 526 U.S. 629 (1999).
The Fitzgeralds sought money damages and court orders to protect their daughter. A U.S. District Court judge refused to consider the constitutional claim, finding that Title IX provided the only remedy. The judge then ruled against the Fitzgeralds on their Title IX claim. The First Circuit Court affirmed on both points (click here to read the decision). On the Title IX claim, the Circuit Court ruled for the School Committee, finding that the parents had not shown that the response of the officials to their complaints amounted to “deliberate indifference.”
The appeal to the Supreme Court is focused on whether Title IX had displaced entirely their right to sue for constitutional violations. In their petition, the Fitzgeralds argued that the lower court ruling turned Title IX on its head and that the statute was intended to expand, not to contract, protections for victims of discrimination on the basis of sex. But if the oral arguments this week serve as any indication, a win for the Fitzgeralds may turn out to be an empty victory, judging from the justices’ questions on Tuesday at the Supreme Court reported the New York Times (12/3, A23, Liptak). While “several justices appeared ready to accept that Title IX…was not meant to limit the ability to sue under” the “broader federal civil rights law known as Section 1983,” they “seemed to think that allowing a claim under the earlier law would make no difference.” You can view a transcript of the oral argument by clicking here.
The facts are certainly egregious and emotionally charged, but it begs the question about what more the school district could have done under the circumstances. We’ll have to wait until the spring to get a decision from the court, but it would not be surprising to see the case simply sent back to the lower court for further proceedings without a decision on the merits of the claims.
For more details on the case, click here to view the SCOTUSwiki report.