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Published in Print: October 15, 2008, as High Court's First Week Includes Schools District Harassment Case

High Court's First Week Includes School District Harassment Case

Justices decline to hear cases on school speech, acceptance of gays.

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The U.S. Supreme Court opened its new term last week, hearing arguments in a case involving alleged sexual harassment in a school district central office, while declining review of several education-related appeals.

The justices refused to hear the appeal of two Massachusetts families who claimed violations of their rights when public schools exposed their children to books promoting tolerance for gay marriage. The court also refused to take up two First Amendment cases in schools, one involving student speech and the other about a teacher’s right of access to school mailboxes.

In the harassment case, the justices will interpret part of the main federal employment-discrimination law. Title VII of the Civil Rights Act of 1964 prohibits discrimination in the workplace based on race, sex, and other factors, and it covers sexual harassment. One provision of Title VII is designed to prohibit retaliation by employers against those who “opposed” an unlawful employment practice or “made a charge, testified, assisted, or participated in any manner in an investigation, proceeding, or hearing” related to such an unlawful practice.

The awkwardly worded provision was the result of a compromise in Congress to strike a balance that would “protect the rights of employees to report allegedly discriminatory activity, as well as employers’ rights to manage their workplaces,” Francis H. Young, a lawyer representing the school district, told the justices during oral arguments on Oct. 8 in Crawford v. Metropolitan Government of Nashville and Davidson County, Tenn. (Case No. 06-1595.)

Opposition to Harassment?

The appeal was brought by Vicky S. Crawford, a longtime payroll specialist for the Metro Nashville school district. According to court papers, the Metro Nashville-Davidson County government, which encompasses the 75,000-student district, began an investigation in 2002 after receiving allegations that Gene Hughes, the school system’s director of employee relations, was harassing women in his office.

Ms. Crawford did not initiate the complaint about her boss, but she cooperated with the inquiry and told investigators about crude, sexually related comments that Mr. Hughes had allegedly made, including to her, court papers say.

The investigator could not corroborate the most serious charges of sexual harassment against Mr. Hughes, and no disciplinary action was taken against him. Within a few months, Ms. Crawford was dismissed from her job, with the government agency alleging financial improprieties in the payroll division. Ms. Crawford claims it was retaliation.

Ms. Crawford sued under Title VII, but she lost in both a federal district court and the U.S. Court of Appeals for the 6th Circuit, in Cincinnati. The appeals court said Ms. Crawford did not merit protection under the “opposition” clause of the anti-retaliation provision. Her relating to investigators unfavorable information about the supervisor did not qualify as “overt opposition” because Ms. Crawford did not initiate her own sexual-harassment complaint, the court said.

Eric Schnapper, a lawyer representing the dismissed employee before the Supreme Court last week, said, “When Vicky Crawford reported to city officials that she had been repeatedly harassed by the [school system’s] director of employee relations, her conduct was protected by [the anti-retaliation section] of Title VII.”

‘A Gaping Hole’

Ms. Crawford has the support of numerous civil rights groups, as well as the Tennessee Education Association and the Metropolitan Nashville Education Association, which filed a friend-of-the-court brief on her side. The Bush administration also supports the ex-employee’s interpretation of the anti-retaliation provision.

Lisa S. Blatt, an assistant to the U.S. solicitor general, told the justices that the 6th Circuit court “left a gaping hole” in Title VII protection. “It is an inexplicable gap that a complaining witness in an employer investigation would be unprotected from retaliation,” she said.

The school district is supported by the National School Boards Association, which argued in a friend-of-the-court brief that protecting “passive involvement” in an internal investigation of workplace discrimination would mean that “poorly performing employees could use Title VII as a sword to insulate themselves from adverse employment action by intentionally involving themselves in an internal investigation,” the NSBA brief said.

During the arguments, Justice Antonin Scalia took up that theme.

“Whenever the employer conducts such an investigation, any employee who is smart enough to come in and testify against sexual harassment has a guaranteed job,” he said. “It is almost like ... being a federal judge.” But several justices sharply questioned Mr. Young, the school system’s lawyer.

Justice John Paul Stevens noted that Ms. Crawford said to her supervisor during one instance of alleged harassment, “Get the hell out of my office.”

“She’s opposing his advance to her,” Justice Stevens said. “That’s an active opposition, it seems.”

Justice Ruth Bader Ginsburg said that Title VII “is a statute that’s meant to govern the workplace with all of its realities. One of them was when they asked, ‘Well, why didn’t you make a complaint, use whatever internal remedies there are?’ She said, ‘Because the person in this outfit who is charged with receiving complaints is the harasser.’?”

The case is expected to be decided by next June.

This book on gay tolerance sparked a lawsuit.
This book on gay tolerance sparked a lawsuit.

Gay-Tolerance Case

Meanwhile, in Parker v. Hurley (No. 07-1368), the justices declined without comment to review a ruling by a federal appeals court that had ruled unanimously in January that the Lexington, Mass., school system did not violate the rights of the parents or children by exposing them to books that they found objectionable on religious grounds.

One family objected to their child being presented in kindergarten and 1st grade with a book called Who’s in a Family?, which portrays diverse families, including those with same-sex parents. The other family objected to a 2nd grade teacher’s reading to their son’s class a book called King and King, which tells the story of a prince who ends up marrying another man.

The families challenged the school system’s refusal to provide them with prior notice of such lessons and to allow their children to be exempted from them until 7th grade. Their suit cited their First Amendment free-exercise-of-religion rights and their parental and privacy rights under the 14th Amendment’s due process clause.

A three-judge panel of the U.S. Court of Appeals for the 1st Circuit, in Boston, ruled against the families’ claims, saying there was no attempt to indoctrinate children with particular views.

The justices on Oct. 6 also denied review of these cases:

Lowery v. Euverard (No. 07-1567), an appeal on behalf of four high school football players in the Jefferson County, Tenn., district who claimed their First Amendment free-speech rights were violated when they were dismissed from their team after complaining publicly about the behavior of their coach.

Policastro v. Kontogiannis (No. 07-1341), in which a New Jersey teacher appealed rulings denying him access to teacher mailboxes at his high school to distribute a memo about labor negotiations.

Vol. 28, Issue 8, Pages 26-27

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