Supreme Court Considers Ability of Student to
Bring Sex Discrimination Claims Under Both
Title IX and the U.S. Constitution

By Amy Katz, Senior Counsel, Legal Momentum

Today, December 2, the United States 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.

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

*

Read the amicus brief in Fitzgerald v. Barnstable at:
http://www.aclu.org/pdfs/scotus/fitzgerald_v_barnstable_acluamicus.pdf
*

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/1101/

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).

New York: 395 Hudson Street, New York, NY 10014
Washington D.C.: 1101 14th Street, NW, Ste 300, Washington, DC 20005
http://www.legalmomentum.org/

This is an abridged version of Ms. Katz's commentary on this case.
For the full-length version, click here.
(http://www.legalmomentum.org/site/News2?page=NewsArticle&id=7057)