Constitutional Law

Array of Remedies Should Be Available For Gender Discrimination In Public Schools

by Dina Lassow, Senior Counsel, National Women’s Law Center. Ms. Lassow analyzes Fitzgerald v. Barnstable School Committee, which was recently argued before the U.S. Supreme Court.

Fitzgerald v. Barnstable School Committee, which was argued before the Supreme Court on December 2, 2008, presents the question – on which the Circuits are fairly evenly split – of whether Title IX of the Education Amendments of 1972 preempts a constitutional claim brought under 42 U.S.C. § 1983, the Reconstruction era law that was enacted to enforce the Fourteenth Amendment. Title IX bars discrimination on the basis of sex in education programs and activities that receive federal funds – such as the public school that Jacqueline Fitzgerald attended. The constitutional claim is for violation of the Equal Protection clause by the school district and its superintendent. 

Petitioners, Jackie’s parents, supported by groups including the National Women’s Law Center, contend that the Court should reject the preemption argument because it is clear that when Congress passed Title IX, it intended to create a new statutory remedy that would supplement, not replace, other remedies for sex discrimination.  Effective enforcement of both Title IX and the Equal Protection Clause remains essential if sex discrimination in educational institutions is to be eliminated.  

While much progress has been made since 1972, women and girls continue to face discrimination in many aspects of their education. They are still discouraged from pursuing the “STEM” subjects – science, technology, engineering and mathematics – as both students and professors. In career and technical education programs, high school girls are still clustered in the classes for traditional women’s occupations, which are much lower-paying than traditional men’s occupations. Women and girls are now playing school sports in large numbers, but those numbers are still lower than the numbers of men and boys who are playing. Those who are playing receive fewer resources and face unequal treatment by schools and public facilities. Sexual harassment is all too common in our nation’s educational institutions. Therefore, it is crucial that a full range of remedies remain available to those who face discrimination.

The Fitzgerald case began in 2001, when Jackie, who was then in kindergarten, told her parents that one of the boys on the school bus was forcing her to lift her skirt, pull down her underpants and spread her legs whenever she wore a skirt.  Her parents immediately reported her complaint to the principal, but they were not satisfied with the investigation undertaken or the solution proposed, which was to separate the kindergartners from the other students by several rows of seats or to move Jackie – not the third grader who she said was harassing her – to another bus. 

Jackie’s parents filed suit against the School Committee and the Superintendent under both Title IX and § 1983.  (Individuals can only be sued under § 1983.)  The district court dismissed their § 1983 claim, finding that it was preempted, and the case proceeded against the School Committee under Title IX. However, the Supreme Court has imposed a very difficult standard for students who are sexually harassed to recover damages under Title IX:  it is harder for a student who has been harassed to prevail than for an employee who sues under Title VII of the Civil Rights Act of 1964. The First Circuit upheld the district court’s ruling on summary judgment that plaintiffs had not met that high standard, and also upheld the preemption ruling, with the “coda” that individuals could be sued under § 1983 for wrongdoing independent of the Title IX claim. The Fitzgeralds brought only the preemption issue to the Supreme Court.

The Justices were unusually quiet during the oral argument, often allowing the attorneys to finish several sentences. Questions that were asked by Justices Ruth Bader Ginsburg, Stephen Breyer and John Paul Stevens focused on whether petitioners had a viable claim under § 1983 in view of the ruling against them on their Title IX claim, and whether the case should be dismissed if they did not. Justice Antonin Scalia retorted that there is a circuit split on an important issue that needs to be resolved, and that the courts below should be the ones to worry about whether petitioners have a claim. However, the Justices did not pursue that important issue in their questions. 

Petitioners, represented by Charles Rothfeld of Mayer Brown, argued that Title IX’s language and legislative history demonstrate that Congress passed the law to increase protection against sex discrimination in education by adding a statutory remedy, not to limit it by precluding other remedies. The attorney for the Barnstable School Committee, Kay Hodge of Boston’s Stoneman, Chandler & Miller, took a narrow view of the preemption issue, arguing that Title IX only preempts identical claims brought under § 1983. But, she also sought to engraft onerous new requirements on to equal protection cases that could still be brought.

If the Court is convinced that petitioners cannot obtain relief even if their § 1983 claim is allowed to proceed, it could dismiss the petition for certiorari as improvidently granted. If it reaches the merits, the argument left listeners without many clues as to how the Court will rule.

Full post as published by ACS Blog on December 31, 1969 (boomark / email).