peer harassment

Fitzgerald v. Barnstable School Committee: Justices Confused; Constitution IS Narrower Than Title IX

by Hans Bader on December 3, 2008 · 1 comment

in Legal, Personal Liberty

It’s not a good thing for a lawyer when you argue in the Supreme Court and the Justices are confused about your position. But that happened on December 2 in the case of Fitzgerald v. Barnstable School Committee, where Justices and court reporters alike were confused about what a school system’s lawyer was arguing in her oral argument. That’s too bad, because the lawyer’s argument on behalf of the school board was basically correct.

Fitzgerald is a sexual harassment case alleging “peer harassment” by a student against another student. The peer-harassment angle is important, because students aren’t state actors, so the standard of liability under the Constitution (which requires “state action”) is logically different than under Title IX (which doesn’t require any “state action”). (Making the Constitutional standard as broad as Title IX would produce all sorts of bizarre consequences by gutting the Constitution’s “state-action” doctrine)

Under Title IX, school boards are liable for “deliberate indifference” by school officials (or the school board itself) that allows harassment by one student against another to continue. (The plaintiff in Fitzgerald lost on her Title IX claim because she failed to show deliberate indifference, according to a federal appeals court).

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Fitzgerald v. Barnstable School Committee: School Board Virtually Concedes Vast New Liability

by Hans Bader on November 24, 2008 · 4 comments

in Legal, Nanny State, Personal Liberty

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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