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…

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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…

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