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Published in Print: June 18, 2008, as Justices to Hear School Sex-Discrimination Case

Justices to Hear School Sex-Discrimination Case

Court seeks to settle appeals-court split over Title IX as legal remedy.

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The U.S. Supreme Court will take up an appeal examining whether Title IX provides the exclusive legal remedy for cases of sex discrimination in public schools.

The court will seek to settle a long-standing split in the federal appeals courts over whether a broader federal civil rights law, known as Section 1983, also provides the basis for suits alleging sex discrimination in education.

“The implications of this are quite large,” said Deborah L. Brake, a law professor at the University of Pittsburgh and an expert on Title IX of the Education Amendments of 1972.

Title IX prohibits discrimination based on sex in schools and colleges that receive federal funding. Lawyers for a Massachusetts family argue in an appeal to the high court that suits brought under the statute “are subject to very real limitations.” For example, the justices have ruled that school districts may be liable for peer sexual harassment in schools only when school officials had actual notice of the harassment and responded with deliberate indifference.

Meanwhile, a sex-discrimination claim brought under Section 1983, which derives from the Civil Rights Act of 1871, typically alleges a violation of the equal-protection clause of the 14th Amendment. Such a constitutional claim doesn’t necessarily face the same legal hurdles that Title IX claims face.

“Because an equal-protection claim brought under Section 1983 may vindicate certain rights regarding school-place sexual harassment that are not actionable under Title IX, the Title IX statutory rights are not virtually identical to their constitutional counterparts,” says the appealRequires Adobe Acrobat Reader for the family in Fitzgerald v. Barnstable School Committee (Case No. 07-1125).

Trouble on School Bus

The case arises from claims that a kindergarten girl was subjected to sexual harassment by a 3rd grade boy while riding the bus to school. Each time the girl wore a dress to school, the boy allegedly forced her to lift her skirt, pull down her pants, and spread her legs, according to court papers.

The 4,460-student Barnstable, Mass., school district and local police investigated the charges, but the police found there was insufficient evidence to proceed with any criminal action against the 3rd grader, court papers say.

The district offered to place the girl on another bus, a proposal that dissatisfied her parents, who requested that the boy be removed from their daughter’s bus.

In its briefRequires Adobe Acrobat Reader , the district says that because it had trouble substantiating the kindergartner’s allegations, offering to place her on another bus was a reasonable response to the alleged peer harassment.

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The parents sued the district under both Title IX and Section 1983. Both a federal district court and the U.S. Court of Appeals for the 1st Circuit, in Boston, ruled against their Title IX claim and held that the Section 1983 claim was foreclosed by Title IX.

The 1st Circuit court noted that besides itself, three other federal circuit courts have ruled that Title IX forecloses Section 1983 constitutional claims. But three other federal circuit courts have ruled that both Title IX and Section 1983 claims may both be raised in a sex-discrimination suit.

For Ms. Brake, the University of Pittsburgh professor, the 1st Circuit’s conclusion that Title IX is the exclusive remedy for sex discrimination in schools was a “stunning” decision.

“In my view, no one in Congress in 1972 believed that in passing Title IX, they were barring constitutional claims against sexual discrimination,” said Ms. Brake, who has been a litigator of Title IX suits but is not directly involved with the Massachusetts case. “The entire goal was to expand rights, not take them away.”

It isn’t clear how many cases there are in which the plaintiffs would lose on a Title IX claim but be able to win on a Section 1983 constitutional claim.

The lawyers for the Massachusetts family contend in their brief that a school district would violate the equal-protection clause, but not necessarily Title IX, if it treated bullying or sexual harassment of boys differently from sexual harassment of girls.

The Barnstable district argues in its brief that even had a Section 1983 claim been allowed to go forward in the parents’ lawsuit, the school system could not have been held liable under the equal-protection clause because it had no custom or policy of allowing peer sexual harassment to go unchecked.

The court will hear the case in the term that begins in October.

Vol. 27, Issue 42, Pages 22-23

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