Law & Courts

Justices to Hear School Sex-Discrimination Case

By Mark Walsh — June 12, 2008 3 min read
  • Save to favorites
  • Print

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 appeal 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 brief , 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.

The School Law Blog

For regular news and analysis on legal developments affecting schools, educators, and parents, read The School Law Blog.

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.

A version of this article appeared in the June 18, 2008 edition of Education Week as Justices to Hear School Sex-Discrimination Case

Events

This content is provided by our sponsor. It is not written by and does not necessarily reflect the views of Education Week's editorial staff.
Sponsor
Teaching Webinar
Closing the Practice Gap: Essential Insights for Leaders
Three instructional experts will share strategies for making students’ reading and math practice more engaging and impactful this year.
Content provided by Renaissance
This content is provided by our sponsor. It is not written by and does not necessarily reflect the views of Education Week's editorial staff.
Sponsor
School & District Management Webinar
The Principal's Role in Collective Efficacy and Student Outcomes
Learn practical strategies that help principals translate their confidence into stronger collective teacher efficacy and student outcomes.
Content provided by Otus

EdWeek Top School Jobs

Teacher Jobs
Search over ten thousand teaching jobs nationwide — elementary, middle, high school and more.
View Jobs
Principal Jobs
Find hundreds of jobs for principals, assistant principals, and other school leadership roles.
View Jobs
Administrator Jobs
Over a thousand district-level jobs: superintendents, directors, more.
View Jobs
Support Staff Jobs
Search thousands of jobs, from paraprofessionals to counselors and more.
View Jobs

Read Next

Law & Courts Judge Orders Meta to Build New Child Safeguards. Advocates Hope Other Courts Follow
The new online safety measures would include a monthly time limit and AI chatbot restrictions.
6 min read
Mark Zuckerberg talks about the Orion AR glasses during the Meta Connect conference on Sept. 25, 2024, in Menlo Park, Calif.
Mark Zuckerberg talks about the Orion AR glasses during the Meta Connect conference on Sept. 25, 2024, in Menlo Park, Calif.
Godofredo A. Vasquez/AP Photo
Law & Courts Wisconsin's Appeals Court Overturns Ruling That Had Restored Collective Bargaining Power
Unions are expected to appeal, sending the case to the Wisconsin Supreme Court, which is controlled by liberal justices.
4 min read
FILE - A crowd fills the Wisconsin Capitol rotunda on the fifth day of labor demonstrations, Feb. 16, 2011, in Madison, Wis. Thousands came to protest the governor's proposal to eliminate collective bargaining for most public workers. Seven unions representing teachers and other public workers in Wisconsin filed a lawsuit Thursday, Nov. 30, 2023, attempting to end the state's near-total ban on collective bargaining for most public employees.
A crowd protesting legislation to significantly curb collective bargaining in Wisconsin fills the state Capitol rotunda on the fifth day of labor demonstrations on Feb. 16, 2011, in Madison, Wis. The proposal passed and has been in place for 15 years, and a lawsuit seeking to end it is now headed to the state's high court.
Craig Schreiner/Wisconsin State Journal via AP
Law & Courts What Schools Need to Know About the Supreme Court’s Transgender Sports Ruling
The justices upheld two state laws that bar transgender girls from participating in female sports.
10 min read
A group prays outside of the Supreme Court ahead of the court's ruling on whether transgender girls and women can play on school athletic teams, on June 30, 2026, on Capitol Hill in Washington.
A group prays outside of the U.S. Supreme Court ahead of the court's ruling on whether transgender girls and women can play on school athletic teams, on June 30, 2026, in Washington. The court upheld two state laws barring transgender girls from joining girls' school sports teams.
Jose Luis Magana/AP
Law & Courts Judge Voids Trump Admin. Rule Excluding Education From ‘Professional’ Degrees
A judge ruled the agency didn't have the authority to adopt such a narrow definition.
4 min read
Graduates in the School of Education hold up books as their degrees are conferred during Harvard's 371st Commencement, on May 26, 2022, in Cambridge, Mass.
Graduates in the School of Education hold up books during Harvard's 371st Commencement on May 26, 2022, in Cambridge, Mass. The Trump administration excluded education fields when it set a definition of "professional" degree to implement a new law instituting graduate student borrowing limits.
Mary Schwalm/AP