14th Amendment

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)).

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