December 2, 2008
By Amy Katz, Senior Counsel, Legal Momentum
This is an abridged version of Ms. Katz's commentary on this case. For the full-length version, click here.
Today, December 2, the Supreme Court will hear arguments in Fitzgerald v. Barnstable School Committee, a case that raises the question of 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 fully achieve 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 "they were too young to be credible." Briton was not reprimanded and was not barred from contact with Jacqueline. The Fitzgeralds thought the school did not take Jacqueline's accusations seriously and sued the school and its superintendant under two federal laws -- Title IX and Section 1983, a federal statute enacted as part of the Civil Rights Act of 1871--claiming Jacqueline had continued to be subject to sexual harassment, which is a form of sex discrimination, that interfered with her education.
Both the district court and the First Circuit Court of Appeals judges who heard the case 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 grounds that they were precluded by the existence of the Title IX claim.
The question that is 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 only under Title IX. The Supreme Court granted certiorari because the federal circuit courts are "split," that is they have a variety of different approaches to this question. The underlying facts, isturbing 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. Whatever the outcome for the Fitzgeralds, the case will resonate well beyond the life of the mistreated Jacqueline.
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.
MORE INFORMATION
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Read the amicus brief in Fitzgerald v. Barnstable at:
http://www.legalmomentum.org/site/R?i=nTa8XfVCrFBCYEgOK6FQWA..
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For a more detailed explanation of sexual harassment in schools, its impact on girls, and the state of the law, read our Legal Resource Kit on Sexual Harassment in the Schools at:
http://www.legalmomentum.org/site/R?i=2dJZ2Rjckm8Tv7a3nSIodA..
ABOUT LEGAL MOMENTUM
Legal Momentum uses the power of the law and innovative public policy to advance the rights of women and girls. It is the nation's oldest legal advocacy organization devoted to women's rights. Legal Momentum, then known as NOW Legal Defense, pioneered the implementation of Title IX with PEER, its nationwide Project on Equal Education Rights, from 1974-1992, and it continues to work with students, school systems and colleges throughout the country. It was
co-counsel in Doe v. Petaluma City School District, 949 F. Supp. 1415 (N.D. Cal. 1996), the first case to recognize that a
school's failure to respond to peer sexual harassment may violate Title IX, and has appeared as amicus curiae in numerous cases concerning the right to be free from sexual harassment and sex discrimination in education, including Davis v. Monroe County Board of Education, 526 U.S. 648 (1999), and Franklin v. Gwinnett County Public Schools, 503 U.S. 60 (1992).
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