Monday, June 9, 2008
Another Right Without a Remedy on the Way: Court Grants Cert in Title IX Preclusion/Peer Sex Harassment Case
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.