Tomorrow the U.S. Supreme Court will hear its first K-12 case of its current term, Fitzgerald v. Barnstable School Committee. Details on the case, the lower court rulings along the way, and NSBA’s brief to the court are here, courtesy of NSBA’s Legal Clips. The local newspaper from the Massachusetts town where the case arose, the Barnstable Patriot, has a good article here, and USA TODAY here.
The question for the Court is whether Title IX, which prohibits sex-based discrimination in federally funded educational institutions, precludes a legal claim over the same discrimination that is brought under the Equal Protection Clause via Section 1983, a federal statute that gives plaintiffs a legal lever to sue public institutions and public officials for violating federal constitutional or statutory rights. What’s at stake from the plaintiffs’ standpoint is expressed on this Title IX blog:
The availability of both Title IX and constitutional remedies is important to sexual harassment plaintiffs like the Fitzgeralds because constitutional claims are not subject to the case law limiting liability to cases involving ‘deliberate indifference.’ Moreover, unlike Title IX claims, which may only proceed against institutions, 1983 plaintiffs may sue individuals who were acting ‘under color of law’ when violating the plaintiff’s constitutional rights. Lastly, some courts have held that Title IX plaintiffs are not entitled to punitive damages, a remedy that 1983 allows.
That pretty well sums up, from the school perspective, what’s really going on here. NSBA argues in its brief, which was joined by the American Association of School Administrators and the American Council on Education, that making a constitutional issue out of a peer-harassment case like this one is duplicative of Title IX, simply isn’t necessary to make schools take such harassment seriously, and would have some serious downsides. In fact, NSBA argues, Title IX’s protection is stronger than Section 1983′s in such cases.
By the way, as upsetting as the harassment allegations against the third-grader were in this case (and they are), the lower courts in the case specifically rejected the argument that the school district’s response to them was one of “deliberate indifference.” The police even investigated the alleged incidents but found the evidence was inconclusive.