Law & Courts

Sex-Bias Remedies Upheld

By Mark Walsh — January 16, 2009 10 min read
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A U.S. Supreme Court decision last week endorsing a wider range of remedies for sex discrimination in schools is seen as a defeat for school districts.

The court’s unanimous ruling that Title IX of the Education Amendments of 1972 is not the exclusive means for suing districts over sex bias was part of a flurry of activity on cases with significance for educators. The court also issued a ruling on immunity from lawsuits for educators and other government officials, and said it would take up appeals dealing with the legality of student searches and private school placements of special education students.

In the Title IX case, the justices ruled that the 1972 statute does not bar victims of sex discrimination in schools from pursuing claims under the federal statute known as Section 1983, a Reconstruction-era law that allows plaintiffs to sue any individual who violates their civil rights under color of law. In some cases, the statute may offer wider protections than Title IX, which bars sex discrimination in federally financed schools and colleges.

“We conclude that Title IX was not meant to be an exclusive mechanism for addressing gender discrimination in schools, or as a substitute for Section 1983 suits as a means of enforcing constitutional rights,” Justice Samuel A. Alito Jr. wrote for the court on Jan. 21 in Fitzgerald v. Barnstable School Committee (Case No. 07-1125).

The decision is at least a temporary victory for the parents of a Massachusetts student who claimed that school officials failed to respond adequately to sexual harassment of their daughter—then in kindergarten—by a 3rd grade boy on her bus.

The parents’ suit claims that each time during the 2000-01 academic year that the girl wore a dress to school, the boy forced her to lift her skirt, pull down her pants, and spread her legs, according to court papers. (“High Court Hears Arguments in Harassment Case,” December 10, 2008.)

The 4,460-student Barnstable, Mass., school district offered to place the girl on another bus—a proposal that dissatisfied her parents, because they felt it was a form of punishing the victim. They requested that the alleged harasser be removed from their daughter’s bus or that an adult monitor ride it.

The district said 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.

Difference in Coverage

The parents sued the district under both Title IX and Section 1983. In the latter claim, the parents alleged that school officials discriminated based on sex in their investigations of student misbehavior in violation of the equal-protection clause of the 14th Amendment.

Both a federal district court and the U.S. Court of Appeals for the 1st Circuit, in Boston, ruled that the family could not prevail under Title IX because the school district did not act with “deliberate indifference” to the complaints, which is the standard under the Supreme Court’s precedents in this area. The lower courts ruled that the Section 1983 claim was foreclosed by Title IX.

In his opinion, Justice Alito rejected the appeals court’s conclusion that Congress meant to bar Section 1983 claims for sex discrimination in schools when it passed Title IX.

A comparison of the two statutes shows that in some circumstances they cover different legal targets or offer different remedies, the justice said. Title IX is aimed at educational institutions that receive federal funds, but it has been interpreted as not authorizing lawsuits against teachers, school officials, or other individuals, Justice Alito said. Section 1983, meanwhile, may be used to sue individuals, as long as they are acting with government authority, the justice noted.

Furthermore, Justice Alito said, Title IX exempts from its coverage certain institutions, such as military-service schools and traditionally single-sex public colleges, that may be subject to suits under Section 1983.

Justice Alito said the Massachusetts parents deserved the opportunity to pursue their Section 1983 claims in federal district court.

“The Supreme Court appropriately recognized that when Congress passed Title IX, it intended to create a new statutory remedy that would supplement, not replace, constitutional and other legal protections against sex discrimination,” Marcia D. Greenberger, the co-president of the National Women’s Law Center, said in a statement.

Immunity Decision

In another decision last week, the high court made it easier for judges to grant educators, the police, and other public officials immunity from lawsuits challenging their official actions.

The court effectively overruled one of its own precedents that said judges determining whether government officials were entitled to “qualified immunity” must first decide whether a constitutional violation had even occurred.

That rule, from a 2001 case known as Saucier v. Katz, has led to criticism from federal judges and municipal governments, including school districts, which argued that courts were often forced to settle thorny constitutional questions even when many cases could be disposed of more easily because the officials involved were immune from the suit.

Under the high court’s precedents on qualified immunity, public school educators and certain other government officials are immune from being sued unless they violate “clearly established” constitutional or statutory rights of which a reasonable person would have known.

In a unanimous opinion for the court on Jan. 21 in Pearson v. Callahan (No. 07-751), Justice Alito said “the Saucier procedure comes with a price” and “should not be regarded as an inflexible requirement.”

Lower federal court judges are in the best position to decide when to follow the rule, and often they will want to examine constitutional questions first, he said.

The argument for retaining the Saucier procedure was that without first addressing constitutional issues, many judges would decide suits against officials on immunity grounds without advancing the development of constitutional law.

“It’s one thing to say a government official should not be held liable for money damages if the law is unsettled,” said Steven R. Shapiro, the national litigation director of the American Civil Liberties Union, which had filed a brief urging the court to retain the rule. “But you don’t want to perpetuate that uncertainty.”

A Search for Drugs

Meanwhile, immunity for educators is one of the issues at stake in the appeal involving a middle school strip-search.

In July, the 9th Circuit court ruled that the search of an 8th grader by school authorities looking for prescription-strength ibuprofen pills violated the student’s rights under the Fourth Amendment.

A panel of the court ruled 8-3 that officials at an Arizona middle school “acted contrary to all reason and common sense as they trampled over” the privacy interests of Savana Redding. By a separate vote of 6-5, the panel held that the assistant principal who ordered the strip-search was not entitled to qualified immunity from liability in the student’s lawsuit.

After receiving a report in 2003 that Ms. Redding, then 13, had been distributing ibuprofen pills to fellow students, officials at Safford Middle School in the 2,750-student Safford district searched the girl’s backpack, then asked a female administrative assistant to go through her clothing.

Ms. Redding had to remove her pants, lift the waistband of her underpants, and lift her shirt and pull out her bra band, according to court papers. No contraband was found.

Ms. Redding and her parents challenged the school officials’ actions as a violation of her Fourth Amendment right against unreasonable searches. They lost before a federal district court and before an initial three-judge panel of the 9th Circuit court. But the full 9th Circuit granted a review by a larger panel of judges.

In that decision, the court said it should have been clear to the school officials under the U.S. Supreme Court’s 1985 decision in New Jersey v. T.L.O. that the strip-search was unreasonable, and thus an assistant principal who ordered the search did not merit qualified immunity.

In T.L.O., the Supreme Court upheld the search of a student’s purse for contraband and found that school searches are justified by a “reasonable suspicion” that laws or school rules were violated. Under the ruling, schools must show that a search was reasonable at its inception and in scope.

“The guidance provided by T.L.O. should have been clear to the school officials, who undertook the professional obligation to balance properly the order of the school with the individual liberties of the students who enter the school,” the court said.

The district’s appeal in Safford Unified School District v. Redding (No. 08-479) was supported by the National School Boards Association and the American Association of School Administrators, which in a friend-of-the-court brief called for the Supreme Court to provide greater guidance to school administrators about the legality of student searches.

The 9th Circuit court’s ruling “unfairly places school officials in the position of being sued and held personally responsible for good- faith decisions intended to protect the health and safety of students entrusted to their care and tutelage,” the education groups said.

IDEA Private Placements

In the special education case, the justices will return to an issue they deadlocked over in their last term: whether parents in a special education dispute with a school district may be reimbursed for “unilaterally” placing their child in a private school when that child has never received special education services from the district.

With Justice Anthony M. Kennedy recusing himself for undisclosed reasons, the other justices tied 4-4 in a 2007 case over whether the federal Individuals with Disabilities Education Act permitted a New York City father to win repayment of private school tuition for a child with disabilities who had never enrolled in the city’s school system. The tie in Board of Education of New York City v. Tom F. upheld the reimbursement in that case, but set no precedent.

The new case, which presumably does not present any barrier to Justice Kennedy’s participation, is from the 6,000-student Forest Grove district in Oregon. The district is appealing a ruling in favor of parents who sent their son to a private school for children with behavioral and emotional problems some two years after a district evaluation had determined the boy was ineligible for special education.

The district eventually determined that the student had attention deficit hyperactivity disorder, but that it wasn’t affecting his educational progress. The parents appealed to a hearing officer, who ruled they should be reimbursed for enrolling their son in a residential program whose tuition was more than $5,000 a month. A federal district court reversed the hearing officer, but a panel of the 9th Circuit court held that the parents were entitled to reimbursement.

The IDEA says that tuition reimbursements for such unilateral private school placements are available only to students “who previously received special education and related services.” The appeals court held that the language did not “create a categorical bar to recovery of private school reimbursement for all other students.”

The district’s appeal in Forest Grove School District v. T.A. (No. 08-305) was joined in a friend-of-the-court brief filed by the NSBA, the AASA, and the National Association of State Directors of Special Education. They argued that the 9th Circuit’s decision would increase the costs of special education by encouraging parents to avoid working with a district to devise an individualized education program, or IEP, for a student with disabilities.

“The 9th Circuit’s decision allows those parents to treat the iep process as a potential lottery ticket to a government-funded private school education,” the school groups said.

The justices indicated that the strip-search and IDEA cases will be heard in April, with decisions expected by the end of June.

A version of this article appeared in the January 28, 2009 edition of Education Week as Sex-Bias Remedies Upheld


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