MA: Justices to hear school sex harassment case

By Joan Biskupic, USA TODAY
November 30, 2008

http://www.usatoday.com/news/washington/judicial/2008-11-30-court_N.htm

WASHINGTON — The Supreme Court on Tuesday will take up the ordeal of a girl allegedly harassed on the school bus, in a situation that a lower-court judge described as "one of a parent's worst nightmares." The case could broadly affect the remedies for sex discrimination at schools across the country.

The dispute from Massachusetts is being followed by women's rights groups and school organizations. The National Association of Women Lawyers says the case "goes directly to the ability of girls and women to press for equal education … and freedom from harassment in the schools."

Yet the National School Boards Association says providing greater avenues for bias claims — as sought by women's groups — "will not make … addressing student misconduct any easier."

Lisa and Robert Fitzgerald learned from their kindergarten daughter in 2001 that a third-grade boy on the school bus in Hyannis had been making her lift her dress, pull down her underwear and spread her legs.

"We were devastated," said Robert Fitzgerald in an interview, recalling the day his daughter revealed what she had been experiencing for months. "We are doing everything we can to make sure that this doesn't happen to anyone else's daughter."

The Fitzgeralds contacted the Hyannis West Elementary School principal and were told the matter would be investigated. The Barnstable Police Department interviewed both children and found there were insufficient grounds to proceed with criminal charges, according to a U.S. district court's opinion.

School officials, too, said they were not able to determine the full situation after interviewing children on the bus. The school offered to put the Fitzgeralds' daughter on a different bus. The parents, who had begun driving their daughter to school, believed that option would unfairly punish the girl.

In 2002, the Fitzgeralds sued the Barnstable School Committee and the school superintendent under Title IX of the Education Act Amendments of 1972, which bans discrimination at schools that receive federal funds, and under a U.S. civil rights law known as Section 1983, which broadly protects against government discrimination.

The overriding question in Tuesday's case is whether a Title IX claim prevents a lawsuit under Section 1983. The laws have different standards for liability and different remedies.

Section 1983 can be used to sue individual public employees, not only public institutions. Title IX requires complaining parties to meet a particularly tough test. Damages can be won only when a school district has shown "deliberate indifference."

The district court judge who heard the Fitzgerald case said the harassment "far exceeded mere teasing" and was "significantly shocking and traumatic." Yet, the judge found that the school district had not acted with "deliberate indifference." The judge barred the Section 1983 complaint, saying Title IX was the sole route for claims of sex discrimination in schools.

The U.S. Court of Appeals for the 1st Circuit affirmed. Lower courts are split on the relationship between the two laws.

Representing the Fitzgeralds, lawyer Charles Rothfeld told the court that the text and history of Title IX indicate that Congress intended to provide "parallel, and equally available, rights of action" in the two laws.

The Fitzgeralds say female students' right to be free from sex discrimination is stronger if they have recourse through both Title IX and Section 1983.

Kay Hodge, the Boston lawyer representing Barnstable officials, counters that Congress wanted efforts against sex discrimination to be "squarely on the shoulders of educational institutions," which face the loss of federal funds if they fail to act under Title IX.