Monday, June 9, 2008

Another Right Without a Remedy on the Way: Court Grants Cert in Title IX Preclusion/Peer Sex Harassment Case

4united_states_supreme_court_1129_2 SCOTUSblog gives us the heads up (through Live Blog!) that the Supreme Court granted cert. this morning in the Title IX sex-discrimination case of Fitzgerald v. Barnstable School Committee, 07-1125 (opinion below), which grows out of allegations that "paint a grotesque picture of peer-on-peer sexual harassment at the elementary school level." (Judge Selya wrote the opinion for the 1st Circuit in his normal colorful style). The case involves these facts:

On the morning of February 14, 2001, Jacqueline Fitzgerald, a kindergarten student, informed her parents, Lisa Ryan and Robert Fitzgerald, that each time she wore a dress to school — typically, two to three times a week — an older student [third-grader] on her school bus would bully her into lifting her skirt . . . . in addition to pressing her to lift her dress, [the 3rd- grader] had bullied her into pulling down her underpants and spreading her legs . . . .

[T]he police department ultimately decided that there was insufficient evidence to proceed criminally against [the 3rd-grader].  Relying in part on this decision and in part on the results of the school's own investigation, [the school district official] reached a similar conclusion as to disciplinary measures.

The issue is whether Title IX precludes Section 1983 constitutional and statutory claims to remedy sex discrimination in educational settings (not distinctly employment, but very much related as those who follow Title VI, Title VII, and Title IX know). The 1st Circuit concluded:

[W]e see no problem in holding section 1983 actions, including section 1983 actions against individuals, precluded by Title IX, even though such a holding would deprive plaintiffs of the right to seek relief against the individuals alleged to have been responsible for conduct violative of Title IX . . . .

We conclude that our previous observations on the possibility of enforcing Title IX through the instrumentality of section 1983 apply with equal force [in the Equal Protection context], notwithstanding the slight differences in context.

There is no individual liability under Title IX. I have previously written about this topic in the harassment and bullying of special education children context in At the Crossroads of Title IX and a New 'IDEA': Why Bullying Need Not Be A 'Normal Part of Growing Up' for Special Education Children, I concluded on this point:

The courts that have considered this question with regard to Title IX have split fairly evenly on whether or not Title IX is such a comprehensive statute that it preempts Section 1983 constitutional and statutory claims. [Comparing Boulahanis v. Bd. of Regents, 198 F.3d 633, 640 (7th Cir.1999) (Title IX preempts statutory claims for sex discrimination); Bruneau v. South Kortright Cent. Sch. Dist., 163 F.3d 749 (2d Cir. 1998) (disallowing a Section 1983 claim based on Title IX itself or based on constitutional provisions); Waid v. Merrill Area Pub. Sch., 91 F.3d 857, 863 (7th Cir. 1996) (Title IX preempts a Section 1983 claim based on
constitutional claims); Williams v. Sch. Dist. of Bethlehem, Pa., 998 F.2d 168, 176 (3d Cir. 1993) (Title IX preempts Section 1983 claim based on equal protection clause) with Kinman v. Omaha Pub. Sch. Dist., 171 F.3d 607, 611 (8th Cir. 1999) (Title IX claim does not preclude Section 1983 claim based on constitutional violation); Crawford v. Davis, 109 F.3d 1281, 1284 (8th Cir. 1997) (permitting Section 1983 constitutional and statutory claim to proceed even in the face of an alleged Title IX claim); Seamons v. Snow, 84 F.3d 1226, 1234 (10th Cir. 1996) (constitutional violation based on Section 1983 not barred by Title IX); Lillard v. Shelby County. Bd. of Educ., 76 F.3d 716, 723-24 (6th Cir. 1996) (Title IX does not preempt
statutory and constitutionally based Section 1983 claims)]. At least one commentator has argued that the trend is to hold that Title IX preempts both statutory and constitutional claims
brought under Section 1983.Consequently, a bullied child wishing to hold a principal or teacher responsible for not sufficiently protecting them from same-sex harassment/bullying may not be able to do so under a Title IX-based Section 1983 claim depending upon the circuit law that applies to their circumstances. [citing Meghan E. Cherner-Ranft, Comments,
The Empty Promises of Title IX: Why Girls Need Courts to Reconsider Liability Standards and Preemption in School Sexual Harassment Cases, 97 NW. U. L. REV. 1891, 1916 (2003); But see Michael A. Zwibelman, Comment, Why Title IX Does Not Preclude Section 1983 Claims, 65 U. CHI. L. REV. 1465, 1466 (1998) (arguing that lower courts have been sloppy in distinguishing between statutory-based and constitutionally-based Section 1983 claims, and even in separately analyzing different types of constitutionally-based Section 1983 claims.].

I hate to say this, but that trend in finding Title IX statutory preemption is about to become an unpleasant reality for both constitutional and statutory claims, which will mean no holding individual school officials liable for the discrimination rights of students under the constitution or Title IX.

And most kids will lose like the girl did in the underlying Barnstable case because in Davis v. Monroe County Bd. of Educ., 526 U.S. 629 (1999), makes it almost impossible to win a peer-on-peer sexual harassment case under Title IX. This case will likely raise the bar even higher by making Section 1983 claims based on Title IX and the constitution not possible.  The hope is that this is a relatively narrow holding because (me again):

few courts have actually found actionable same-sex harassment in cases under Title IX in which either a regular education or special education child is subject to severe, pervasive, or objectively offensive bullying without some form of sexually-oriented assault being alleged. This current situation suggests that potential plaintiffs have analyzed the high threshold requirements for a peer sexual harassment claim, and contrary to Justice Kennedy's prediction in Davis of an "avalanche of liability" from this type of litigation, have hesitated to bring Title IX peer sexual harassment cases that do not involve some form of severe, and usually criminal, sexual abuse.

This is certainly an unjust state of affairs, as a student should not have to await a criminal attack on his or her person at school before being entitled to some form of civil relief. In short, the current Title IX peer sexual harassment framework is so narrow that it is entirely ineffective in addressing the very serious and real issue of bullying of children at school based on their failure to conform to stereotypical notions of gender.

Happy days and another right without a remedy situation from the genteel Roberts Court.


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The Court granted review of this case based on the 1983 issue, but that does not preclude it from looking further into the lower Court rulings.

Some background facts: The harassment on the bus was the result of a school policy originated by the principal requiring bus drivers to move unruly students to the front of the bus, while at the same time requiring kindergarten students to sit in the first few rows of seats. The idea behind this was that the bus driver could then keep an eye on the riders at the front of the bus. Jacqueline, being the last kindergarten student to get on the bus, was in the third row, the boy (because of his unusually high incidents of bus misbehavior) was assigned to the forth row - as far forward as he could go. The driver was watching the road, not the seats. This seating policy was not a written policy, so parents were not aware of it.

The police investigation did not conclude that there was insufficient evidence to proceed criminally against the boy, a clerk magistrate (Charles Andrade), when presented with the evidence, concluded that the statues the police referenced in regards to the case were not intended to apply to children this young. The police, based on this opinion, then concluded there was nothing further they could do. Mr. Andrade's recommendation was that the school committee or superintendent were responsible for correcting the problem. The superintendent, Russell J. Dever, when informed of this recommendation said, "I don't answer to Charles Andrade". The school then took the police department's inaction as justification for their own inaction, eventually going so far as to claiming that nothing happened to Jacqueline on the bus.

As far as the school investigation ... The Barnstable school system has a trained Title IX officer - he was never consulted by the school in this case, instead, the principal (Fred Scully) relied on an untrained lunchroom monitor/prevention specialist to head up the school's investigation. She was removed from the investigation two days later after identifying a witness to the harassment. That same witness was asked by Fred Scully to confirm that nothing happened. Basically, the principal of the school told a 5 year old to tell him she didn't see anything (By the way, she was never interviewed by the police, but in his deposition, the investigating detective stated that he would have liked to, had he known how she was questioned by Scully - oh, and her affidavit states that she saw what happened). Additionally, Scully claims that both he and the prevention specialist questioned the bus driver in regards to the harassment - the bus driver submitted an affidavit stating no one from the school ever told her what had happened to Jacqueline, nor had anyone asked her about any incidents on the bus. The school also claims every student on the bus was interviewed and denied seeing anything. Affidavits submitted by two students state otherwise (without a list of names, it was nearly impossible to locate additional riders). It is interesting to note that there exist NO extemporaneous notes concerning the school's response to the reports of harassment on the bus. Absolutely nothing was written down or recorded throughout the school's investigation into the incidents - with the exception of the principals' personal notes which, (according to his deposition), were conveniently destroyed prior to discovery.

There's more, but for now it needs to be remembered that Title IX was enacted to help end discrimination in public schools. Unfortunately, parents usually don't find out about Title IX until after a Title IX incident involving their child has occurred - the schools however are fully aware of Title IX and how it can affect their funding if it were to be enforced, so they are well versed in how to circumvent potential legal challenges. In this case, more effort was made by the school to pretend a Title IX issue wasn't raised, than were made to just correct the situation.

I'll conclude this comment with a disturbing passage from superintendent Dever's deposition;

"Q. The question was, we're talking now about whether this -- this particular bus had a policy. And the Fitzgeralds have stated -- and you have no information to the contrary -- that the policy or practice on this bus was to have the behavioral problem kids sit in close proximity to the kindergarten kids. And what I'm saying to you -- and you said it didn't matter 'cause Jacqueline wasn't on the bus. So what I'm asking you now, sir, is, didn't it matter since there were other young kindergarten kids on that bus?

A. We didn't see that as a problem. Mr. Fitzgerald and Mrs. Fitzgerald see it as a problem. We don't."

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Posted by: Bob Ftizgerald | Jun 11, 2008 9:38:55 PM

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