Fitzgerald v. Barnstable

This case takes us into the legal stratosphere of difficult concepts--specifically whether a section 1983 action, triggering an Equal Protection claim (14th Amendment) is cognizable in a Title IX sexual harassment case. But, in my mind, every difficult concept can be shown to be trivially easy if you just know the right words. Let's try that philosophy on for size here.

Some Relevant Facts

The case has to do with the sexual harassment of a kindergartner (g) by a third-grader (b) during the 2000-01 school year. They would ride the same bus together to school and often the older boy would require the younger girl to lift her skirt and pull down her panties on the bus. This activity was, of course, humiliating to the girl. After a time of enduring this abuse, she mentioned it to her parents, who immediately contacted the school district. The district had no policy of what to do with "peer-on-peer" sexual harassment, and so they had to formulate an ad-hoc response.

Dumbness took over. Instead of doing the logical thing--to punish the boy harasser and make him go on a different bus or to place an adult monitor on the bus, which might cost the district a few hundred dollars a week, they offered to place the girl, Jacqueline, on a different bus. Alternatively, they suggested segregating her and other kindergartners from older students. Jacqueline's parents, incensed, rejected both alternatives as tantamount to punishment of the victim rather than the perpetrator.

The harassment continued in different forms at school. As a result, Jacqueline stopped using the public school bus, didn't participate in gym class and began to miss school more than normal. Didn't anyone have a brain here?

The Lawsuit Develops

Seeing the bumbling efforts of the school district, Jacqueline and family filed suit in the US District Court for the District of Massachusetts. They sought injunctive relief as well as compensatory and punitive damages. But when you bring a suit you have to allege violation of certain laws or Constitutional provisions. They alleged violations of Title IX of the Education Amendments of 1972 (see below) and the US Constitution. Here is where things get really tricky.

But even in tricky things there are untricky things. So, let's begin with clarity. They brought suit under the Education Amendments of 1972, 20 USC sec. 1681(a). That section provides:

"No person in the United States shall, on the basis of sex, be excluded from participation in, be denied the benefits of, or be subjected to discrimination under any education program or activity receiving Federal financial assistance.."

When that law was passed in 1972, the only remedy written in the law for a violation of it was punishment against the offending school district or educational institution in a case brought by government actors. That is, there was no private right of action against individual actors or against the school district. The Supreme Court changed this in 1979 when it recognized an implied private right of action under the statute (Cannon v. Univ. of Chi., 441 US 677 (1979)). That means that individuals can bring claims under the act directed not simply at the offending institution but also against offending individuals.

Yet even though individuals may bring actions against other the school district under this statute, the remedies are quite limited. That is, though the statute provides that no person may be "excluded from participation in, be denied benefits of, or be subjected to discrimination under any education program or activity receiving Federal financial assistance" on the basis of sex, Title IX plaintiffs must show that the defendant school had actual notice of discriminatory acts and that it acted "with deliberate indifference" to the complaints. Further, "damages are available only where the behavior is so severe, pervasive and objectively offensive that it denies its victims the equal access to education that Title IX is designed to protect." Thus, while Title IX seems to give a lot of statutory protection for victims of harassment, it has been interpreted in fairly narrow ways. Indeed, the school district's response, though paltry and inadequate here, was held by the courts not to violate Title IX.

Thus, plaintiffs have to scour around various other legal doctrines to come up with a more convincing case. The plaintiffs in this case, following the lead of plaintiffs in many other places around the country, decided that their best hope for recovery lay in bringing what is known as a section 1983 claim. This statute, originally a part of a post-Civil War law, provides:

"Every person who, under color of any statute, ordinance, regulation, custom, or usage, of any State or Territory or the District of Columbia, subjects, or causes to be subjected, any citizen of the United States or other person within the jurisdiction thereof to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured in an action at law, suit in equity, or other proper proceeding for redress," 42 USC sec. 1983.

This broadly worded statute has been interpreted in the 140 or so years since its enactment as leveraging Constitutional provisions. That is, a sec. 1983 claim is inevitably married to a Constitutional claim, usually a 14th Amendment Equal Protection claim. Thus, one of the causes of action brought by the Fitzgerald's here was a sec. 1983 claim. By bringing in the 14th Amendment with it, plaintiffs have a much easier time showing harassment. Indeed, it is the difference between clearing a four foot and a six foot bar at a junior high track meet. There still is a hurdle, but it is much lower.

The Legal Issue--and Conclusion

But courts have been divided right down the middle regarding whether the sole remedy for Title IX violations is under that statute or whether a sec. 1983 claim, which brings in the 14th Amendment, would be also allowed. In this case, the courts decided that the remedies under Title IX were exclusive and that no sec. 1983 claim or US Constitutional claim would be permitted. This disagrees with about four circuits which would permit such a claim.

Thus, the "bottom line" here is whether the US Supreme Court wants to expand plaintiffs' rights of action under Title IX. Generally this Court is very reluctant to expand rights of action; it is a pro-defendant (unless it is a criminal defendant), pro-cop, pro-big institution Court. The only thing that may convince them to expand that right of action here is the powerful story in this case--of a vulnerable little girl being sexually harassed by a bully, a bully who substantially was protected by "the system." I wouldn't count on a reversal, but I would hope for one..

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