There’s an interesting case pending in the Supreme Court, Fitzgerald v. Barnstable School Committee, that could make Title IX irrelevant in many cases, by creating a vast new constitutional tort of sexual harassment, if the plaintiffs have their way. And amazingly enough, the Massachusetts school board that’s the defendant seems inclined to let the plaintiffs have their way. (Massachusetts’ bizarre state laws provide a possible explanation for this mystery). [UPDATE: THE SCHOOL BOARD LATER CONTESTED SUCH AN EXPANSION OF LIABILITY AT ORAL ARGUMENT on December 2].
Under Title IX, a federal law passed by Congress to expand women’s rights against sex discrimination, schools are liable if they’re “deliberately indifferent” to sex discrimination by third parties, like sexual harassment by students. But the federal Constitution is a different story. Not every case where Harry pesters Sally is a constitutional case, even if it violates Title IX.
Conduct isn’t unlawful “discrimination” for federal constitutional purposes when it’s done by a private party, even if it’s a private entity that possesses a valuable state liquor license (Moose Lodge v. Irvis) or is housed in state property like a dormitory (United States v. Morrison (2000)).
As we previously explained at length, the Constitution doesn’t permit schools to be held liable for harassment by third parties, like students, just because the school is indifferent to it. Instead, under the Supreme Court’s decisions in Personnel Administrator v. Feeney (1979) and Washington v. Davis (1976), the plaintiff has to show that the school district acted as it did because of the plaintiff’s gender — not because of laziness or indifference, even if it is “aware of” the “consequences” of its indifference.
Some lower courts have figured this out, and some haven’t. In our prior post, we noted that many appellate cases, like Soper v. Hoben (1999), require not just deliberate indifference, but also discriminatory intent, for liability under the Constitution. By contrast, there are other federal appellate rulings, like Flores v. Morgan Hill Unified School District (2003), which ignore the Supreme Court’s Feeney and Washington v. Davis decisions by ruling that the Title IX standard is the same as the Constitutional standard — essentially making Title IX largely irrelevant. Thus, there’s a circuit split on whether the Constitution generally applies to “peer harassment” by students.
The Massachusetts school board that’s being sued in the pending Fitzgerald case, amazingly enough, cites the latter line of cases — the ones that are bad for school boards in general — and not the former ones — that are good for school boards in general — in its brief! [UPDATE: AT ORAL ARGUMENT, THE BOARD ARGUED THAT DELIBERATE INDIFFERENCE WAS NECESSARY, BUT NOT SUFFICIENT, FOR LIABILITY].
I say “school boards in general” because the particular school board that’s being sued would prevail under either standard, even the “bad” one (it already got a lower court to dismiss the Title IX claim against it on the merits, leaving only the Constitutional claim), and because it’s in Massachusetts, a state that already has such freakishly broad state sexual harassment laws that the school board already faces broad liability regardless of how the Supreme Court rules under the Constitution. The school board that’s being sued has less financial incentive than most school boards to limit its future liability under the federal Constitution, because the federal Constitution isn’t the main source of future liability for it.
Fortunately for school boards, the National School Boards Association has filed an amicus brief pointing out that the Constitution doesn’t permit school boards to be held liable for “peer harassment” by students unless the school board refuses to do anything about it because of the plaintiff’s gender — not just deliberate indifference.
The National School Boards Association also makes the point in passing that schools can be sued twice over the same decision — once by a student who claims that her alleged harasser’s discipline was inadequate, and once by the disciplined student claiming that the student’s due process or free speech rights were violated. But it understates that very real dilemma, since it only cites cases that accused students lost, rather than won (probably for tactical reasons — because the NSBA doesn’t want to give the court the idea that such lawsuits against its member school boards have merit).
The First Amendment limits discipline of students whose speech on controversial subjects is sexist, racist, or (in college) sexually offensive, as the recent federal appeals court ruling in DeJohn v. Temple University (2008), striking down a sexual harassment policy on First Amendment grounds, illustrates. State court rulings and state constitutional provisions often go even further, allowing people to say vulgar things that sensitive listeners may complain about.
For example, in Massachusetts, where the Fitzgerald case arose, state law has been held to protect vulgar and suggestive T-shirts even if they are unprotected by the First Amendment (in Pyle v. School Committee of South Hadley (1996)), and a teacher was held to be within her free-speech rights to use and discuss offensive words like “blowjob,” “bitch,” “slut,” and “prick” (in the 1996 Hosford v. School Committee of Sandwich case).
At the same time, under the state supreme court’s 1997 Melnychenko decision, Massachusetts institutions can be sued for vulgar speech or conduct under state sexual harassment laws even if the speech or conduct isn’t based on sex! And individual school officials can be sued under state law, which, like the Constitution (but unlike Title IX) permits individual school officials (not just the school district) to be held liable. Non-employees (like students and volunteers) can already sue under Massachusetts state law (under the 2005 Klemm decision). And state sexual harassment law applies even outside of workplaces and schools (under the 1987 Chasdi decison), going well beyond federal law.
So Massachusetts school boards already face a legal nightmare of liability under state law no matter what they do, regardless of how the Supreme Court rules under the federal constitution in the case currently before it. The plaintiffs’s bar couldn’t have picked a better defendant, for purposes of a test case expanding sexual harassment liability, given how little incentive this particular school board had to fight broadening federal sexual harassment liability.
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Although a loss by the defendants in Fitzgerald might not affect school district LIABILITY issues in Massachusetts that much, it could affect DAMAGES. Thus, a loss in Fitzgerald actually could be costly to school districts even in Massachusetts.
Allowing individual officials to be held liable directly under the Constitution would not only add an additional category of defendant under federal law, complicating litigation, it also expand availability of punitive damages heretofore unavailable, or less available, under both state and federal law, since punitive damages are available in constitutional cases against individual school officials even in circumstances where punitive damages would be unavailable under state law and Title IX. Title IX doesn’t permit punitive damages at all. See Barnes v. Gorman, 536 U.S. 181 (2002) (Supreme Court rules that spending-clause statutes like the Rehabilitation Act and Title IX don’t permit punitive damages); Mercer v. Duke (4th Cir. 2005) (punitive damages are unavailable under Title IX).
And you don’t need clear-and-convincing evidence or other elements commonly required by many states (even pro-plaintiff states like California) for punitive damages in a federal constitutional action. And there are other limits it would circumvent as well.
More importantly, if the defendants lose Fitzgerald, even municipalities may be on the hook for harassment by private citizens, since the 14th Amendment, unlike Title IX, applies to all of society — not just schools or workplaces. See Johnson v. Martin, 195 F.3d 1208 (10th Cir. 1999) (constitution prohibits sexual harassment by state-actor towards citizens in general, not just employees).
So if plaintiff 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.
Actually, the Barnstable School Committee doesn't seem to have conceded that deliberate indifference is enough for liability under the Constitution, as opposed to Title IX, which was the (mis)impression I got from its brief in the Supreme Court.At oral argument, the school board's counsel stated that to find a school board liable, one would need to show BOTH deliberate indifference AND discriminatory intent. (The oral argument transcript is is available at http://www.supremecourtus.gov/oral_arguments/argument_... )I think that assertion in oral argument was correct as to the BOARD'S liability under Section 1983 for Constitutional violations — that is, the plaintiff would need to show both discriminatory intent (by the school official responding to a complaint of harassment by a student) and something like deliberate indifference or a similar policy or custom (by the school board itself) for the school board to be liable.However, I think that for an INDIVIDUAL SCHOOL OFFICIAL to be liable under Section 1983, it would be enough to show that the school official harbored discriminatory intent, regardless of whether the BOARD was deliberately indifferent or not.That's a burden different from, and harder for a plaintiff to prove, than Title IX's burden of showing that the relevant decisionmaker responding to the harassment was deliberately indifferent — which is a standard less exacting than discriminatory intent, as the Supreme Court's decisions in Farmer v. Brennan (1994) (applying deliberate indifference standard, and discussing how it differs from invidious intent) and Personnel Administrator of Massachusetts v. Feeney, 442 U.S. 256, 279 (1979) (applying discriminatory intent/purpose standard) make clear. As the Supreme Court emphasized on pg. 279 in the Massachusetts v. Feeney case, “‘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.†That's more than just deliberate indifference. However, these distinctions were hard to make clear in oral argument, and the school board's counsel's attempt to draw them confused even seasoned and perceptive Supreme Court observers like Lyle Denniston of ScotusBlog, who described the school board's attorney as distinguishing the constitutional discriminatory “intent” requirement from the Title IX “deliberate indifference” requirement at one point, only to conflate the Constitutional “intent” standard with the deliberate indifference standard shortly thereafter).The plaintiff can't meet either the discriminatory intent standard, or the lesser “deliberate indifference” standard (plaintiff's failure to meet the latter is why the Title IX claim was dismissed by the lower courts), but it's a much easier case under the discriminatory intent standard, which requires proof that the decisionmaker failed to respond to harassment not just out of laziness, and not just “in spite of” “awareness” of the “consequences” of so doing, but precisely “because of” plaintiff's gender. (The Supreme Court so held explicitly in Personnel Administrator of Massachusetts v. Feeney (1979)).So the plaintiff's petition really ought to be dismissed by the Supreme Court as improvidently granted — a possibility Justice Breyer floated during the oral argument itself.