A stealth assault is being mounted on the Constitution’s state-action doctrine in a case pending before the Supreme Court, Fitzgerald v. Barnstable School Committee.
The Supreme Court has long made clear in cases like Moose Lodge v. Irvis, 407 U.S. 163 (1972) and United States v. Morrison, 529 U.S. 598 (2000) that the government isn’t liable for private discrimination by one person against another, even if, as in the Irvis case, the person discriminating is subject to government regulation and control (like someone with a scarce liquor license racially discriminating), and even if the government is aware of, and indifferent to, that discrimination. You wouldn’t want to live in a society where a town could be sued for failing to dictate whom a resident invites to her dinner party, even based on allegations that she openly discriminated based on sex or religion in whom she chose to invite. And it would be silly to claim that a town is liable for racial harassment because Nazis marched through it and thus created a “hostile environment,” since the Nazis aren’t government employees. This principle is known as the state-action doctrine, and it reflects the fact that the text of the Constitution’s equal-protection clause only forbids “states,” not private citizens, from engaging in discrimination.
But trial lawyers and their allies are now mounting a stealthy, insidious attack on the state-action doctrine, using a sexual harassment case as a vehicle. A student sued a school district under Title IX and the Equal Protection Clause in Fitzgerald v. Barnstable School Committee alleging that the school was liable for sexual harassment, not by its employees, but by her peers, even though students are not agents or employees of the government (unlike teachers).
Title IX, unlike the Constitution or the Equal Protection Clause, contains broad language that doesn’t just apply to discrimination by “states.” Using the passive voice, its text protects students from being ”subjected to discrimination” in schools regardless of the source of discrimination, even if the discriminator is a student — provided that the school district is on notice of the discrimination and is “deliberately indifferent” to it. Thus, Title IX, unlike the Constitution, allows schools to be held liable for student-on-student harassment if school officials are deliberately indifferent to it. See Davis v. Monroe County Board of Education, 526 U.S. 629 (1999).
By contrast, the Constitution requires a plaintiff to show not just that the government acquiesced in discrimination, but that it acted as it did “because of, not in spite of” the plaintiff’s race or sex — that the government itself discriminated, rather than tolerating discrimination by students, who are not state-actors. See Personnel Administrator of Massachusetts v. Feeney, 442 U.S. 256, 279 (1979) (Constitution requires showing that government had discriminatory purpose, not just deliberate indifference; “‘Discriminatory purpose,’ however, implies more than intent as volition or intent as awareness of consequences. . .It implies that the decisionmaker, in this case a state legislature, selected or reaffirmed a particular course of action at least in part ‘because of,’ not merely ‘in spite of,’ its adverse effects upon an identifiable group”); Soper v. Hoben, 194 F.3d 845 (6th Cir. 1999) (in harassment cases, equal protection claim requires discriminatory purpose, while Title IX claim requires only showing of deliberate indifference); Morlock v. West Central Education District, 46 F.Supp.2d 892 (D. Minn. 1999) (same); S.S. v. Eastern Kentucky Univ., 2008 WL 2596660 (6th Cir. July 2, 2008) (applying deliberate-indifference standard to statutory harassment claim under Title IX’s sister statute, the Rehabilitation Act, but requiring proof that school officials “intentionally treated” student “differently” because of prejudice for student to bring constitutional claim); UWM Post, Inc. v. Board of Regents, 774 F.Supp. 1163 (E.D. Wis. 1991) (Equal Protection Clause requires showing that agent of college, not student, engaged in harassment); contra Flores v. Morgan Hill Unified School District, 324 F.3d 1130 (9th Cir. 2003) (erroneously holding the Equal Protection Clause holds school district liable for failing to stop sexual-orientation harassment or sexual harassment by peers).
In the Fitzgerald case, however, the student’s Title IX claim was dismissed for failure to show deliberate indifference by school officials. And the student’s Constitutional equal-protection claim was dismissed based on the theory that Title IX preempts Constitutional remedies.
The student’s lawyers are now arguing that Title IX doesn’t preempt constitutional remedies. They got the Supreme Court to grant review on that issue. But it really shouldn’t matter, though, because plaintiff simply does not have a claim under the Constitution’s equal protection clause — unless the justices, out of a desire to expand remedies for harassment, gut the state-action doctrine. Thus, the grant of certiorari should be dismissed as improvidently granted, since the plaintiff could not recover under current equal-protection standards, and the only way the issue presented by plaintiff could matter is if equal-protection standards are rewritten to gut the state-action doctrine, so that instead of being narrower in its reach that Title IX, it is actually broader.
Broadening its reach to acts by non-state-actors like students would be a big mistake, since the equal protection clause, unlike Title IX, doesn’t just apply to schools, it applies to society generally, prohibiting governments from creating a hostile municipal environment. See Johnson v. Martin, 195 F.3d 1208 (10th Cir. 1999) (constitution prohibits sexual harassment by state-actor anywhere in society, not just the workplace). So if Fitzgerald’s theory of the Constitution prevailed, local governments would be on the hook for liability for what private citizens say or do in their homes or on public streets, even though the First Amendment has been historically understood to protect even racist and discriminatory speech on public streets, like Nazis marching through the town of Skokie, which was held to be protected speech under the First Amendment in Collin v. Smith, 578 F.2d 1197 (7th Cir. 1978), which rejected the argument that a city’s non-discrimination and fair-housing policy required limits on such marches. That’s because federal courts, in dubious reasoning, have held that “harassment” includes a vast array of speech that would otherwise be protected, like comments learned of secondhand by a third party who is offended by them. See Schwapp v. Avon , 118 F.3d 106 (2d Cir. 1997). For example, radio programs that are constitutionally protected and do not rise to the level of being indecent nevertheless can support a sexual harassment claim against an employer that tolerates such radio programs being listened to in its workplace. See Reeves v. C.H. Robinson Worldwide (11th Cir. 2008).
Thus, eliminating the requirement that a harassment claim under the equal-protection clause involve harassment by a state employee would gut the First Amendment and result over time in curbs on broadcast, media, and political speech, as local governments seek to avoid liability for a “hostile municipal environment” by banning such speech by private citizens.
Ironically, the groups supporting the plaintiff in Fitzgerald v. Barnstable School Committee, like the National Women’s Law Center, once admitted that the Constitution didn’t reach peer harassment (that is, harassment by people not employed by school systems or other government entities). In their reply brief for the plaintiff in Davis v. Monroe County Board of Education, they did not contest the school district’s argument that the Constitution doesn’t prohibit such harassment (the school district in that case argued that since the Constitution doesn’t hold schools liable for peer harassment, Title IX shouldn’t either); they insisted, instead, that Title IX is broader than the Constitution in what it prohibits (a not-surprising argument, given Title IX’s broader language). (They may have made that concession because the amicus brief filed on behalf of the school board in that case by two student groups, Students for Individual Liberty and Student Association for Freedom of Expression (1998 WL 847365 (Dec. 8, 1998)), warned the Supreme Court not to recognize peer harassment liability under the Constitution and Title IX, citing examples of campus newspapers being subjected to discipline for racial or sexual “harassment” merely for discussing racially or sexually-charged issues such as affirmative action, the death penalty, and feminism). Now, by contrast, the same lawyers insist to the contrary in the Fitzgerald case, making the exact opposite argument: that the Constitution reaches beyond Title IX . Their whole case rests on that contradictory argument. (Alas, contradictory arguments are not that unusual in sexual harassment cases).
I used to help adjudicate discrimination and harassment claims as an attorney for the federal Education Department’s Office for Civil Rights. Handling such cases generally wasn’t too difficult. But it would have been a nightmare to have to adjudicate the propriety of speech on the radio or in public settings to gauge whether it contributed to a “hostile municipal environment” and was thus “harassing.” Unfortunately, that is the direction we will move in as a society if governments are made liable under the Constitution for “harassment” by non-state-actors like students.
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To suggest that there is some sort of “stealth†attack being propagated on the Constitution by this case is not only ridiculous, it’s unwarranted. Your analysis questionably fails to take into account the role that in loco parentis plays in regards to governmental intrusion into private lives, and accordingly, your assumption of a direct corollary between public educational institutions and private homes in the application of Supreme Court rulings, deliberately ignores that greater “parental†role traditionally afforded to school administrators over their students, as opposed to town/city administrators over their citizens. The effort in this case is not to rewrite the Constitution, but rather to properly assign responsibility for a failure to abide by its strictures.
The plaintiff’s attempt to rely on in loco parentis to create liability under the Fourteenth Amendment is quite radical, and it shows just how weak plaintiff’s argument truly is.
Even in situations where in loco parentis DOES apply, it doesn’t create a duty to protect under the Fourteenth Amendment, much less demonstrate the “discriminatory purpose” required by the Equal Protection Clause. See Vernonia School District v. Acton, 515 U.S. 640, 655 (1995) (”We do not, of course, suggest that public schools as a general matter have such a degree of control over children as to give rise to a constitutional duty to protect”); D.R. by L.R. v. Middle Bucks Area Vocational Technical School, 972 F.2d 1364, 1370-73 (3d Cir. 1992) (rejecting disabled student’s constitutional lawsuit over sexual abuse by fellow students); Dorothy J. v. Little Rock School District, 7 F.3d 729, 732 (8th Cir. 1993) (same).
Moreover, for better or worse, in loco parentis no longer applies in many educational contexts. For just one example, its reach is limited, and in some cases abrogated, by the First Amendment, state constitutional provisions, or state education codes. As Justices Alito and Kennedy have noted, it is simply “wrong to treat public school officials . . . as if they were standing in loco parentis.” Morse v. Frederick, 127 S.Ct. 2618, 2637-38 (2007) (Alito, J., concurring).
At the college level, school officials can’t exercise parental-type discipline, but must often put up with indecent and uncivil speech. Papish v. Board of Curators of Univ. of Mo., 410 U.S. 667 (1973) (vulgar speech protected). The free speech rights of college students are essentially coextensive with those of citizens in society at large. See Healy v. James, 408 U.S. 169, 180 (1972); Thonen v. Jenkins, 491 F.2d 722 (4th Cir. 1973) (free speech rights on college campus are “coextensive with those in the community at largeâ€); DeJohn v. Temple University, 2008 WL 2952777 (3d Cir. Aug. 4, 2008) (invalidating college’s sexual harassment policy as overbroad, and noting that in loco parentis does not apply to college students); Dambrot v. Central Michigan University, 55 F.3d 1177 (6th Cir. 1995) (invalidating racial harassment policy); Iota Xi Chapter of Sigma Chi Fraternity v. George Mason Univ., 993 F.2d 386 (4th Cir. 1993) (invalidating discipline for sexually and racially-offensive skit).
Even in the K-12 setting, where school officials enjoy more authority, the First Amendment still prevents them from regulating the way a parent could. See, e.g., Saxe v. State College Area School District, 240 F.3d 200 (3d Cir. 2001)(invalidating overbroad harassment policy).
And state law often goes beyond the First Amendment in preventing discipline for vulgar or indecent speech that a parent might well punish, putting it at odds with in loco parentis. See, e.g., Pyle v. School Committee of South Hadley, 423 Mass. 283, 667 N.E.2d 869 (1996) (state law in Fitzgerald’s home state of Massachusetts shielded students from discipline for wearing suggestive and offensive T-shirts, even though were not protected by the First Amendment); cf. Smith v. Novato Unified School District, 150 Cal. App. 4th 1439 (2007) (holding that California law protects student speech that is not protected by the federal First Amendment).
Since school officials don’t enjoy the “in loco parentis” authority they once may have enjoyed, it seems very odd to try and hold them liable on that basis (even assuming that the right to discipline students somehow makes overworked school officials liable for misconduct by unruly students in breach of school rules).
Finally, even if school officials DID have a constitutional duty to protect, it would not help plaintiff in Fitzgerald v. Barnstable School Committee. That’s because the standard that applies in the rare case where there is a duty to protect under the Constitution is the same as the one that applies under Title IX: deliberate indifference. See Farmer v. Brennan, 511 U.S. 825, 834 (1994) (even when the Constitution protects someone, it only creates liability for government officials who are “deliberately indifferent” to violations).
And plaintiff can’t meet that standard. The First Circuit Court of Appeals, in rejecting plaintiff Fitgerald’s Title IX claim, ruled that plaintiff had failed to prove deliberate indifference.
The finding is equally fatal to any constitutional claim that the plaintiff might otherwise have had, even if such a constitutional claim existed as a theoretical matter.