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).
But under the Constitution, which requires purposeful discrimination, it’s a different story. The plaintiff still needs to show “deliberate indifference” by the school board in most cases (since constitutional claims are brought under 42 USC Section 1983, which does not hold school boards or other local governments strictly liable for constitutional violations occurring in their domain). But on top of that, the plaintiff also needs to show that a school official, such as the one who received the harassment complaint, acted in a discriminatory manner “because of, not in spite of” the complaining student’s gender. The harassing student’s own discrimination isn’t enough, because (1) the Constitution only binds state actors, which students are not (under the Supreme Court’s 2000 United States v. Morrison decision, and federal court rulings like UWM Post v. Board of Regents (1991)), and (2) the Constitution requires a showing of purposeful discrimination by government officials, under the Supreme Court’s 1979 decision in Personnel Administrator of Massachusetts v. Feeney. So under the Constitution, unlike Title IX, there has to be purposeful discrimination by a school official in handling the harassment complaint.
Weirdly enough, though, after dismissing the Fitzgerald plaintiff’s Title IX claim for failure to show deliberate indifference, the federal appeals court didn’t simply throw out her Constitutional claim for the same reason, but instead ruled that Title IX somehow “preempts” Constitutional claims based on the same facts, and thus avoided an explicit ruling on whether the Constitution was violated. The plaintiff in Fitzgerald then appealed that narrow ruling to the Supreme Court.
At oral argument in the Supreme Court, the lawyer for the school board in the Fitzgerald case elicited confusion when she first stated that plaintiffs have to meet a higher standard to establish a Constitutional violation than for a Title IX claim (citing the Massachusetts v. Feeney case we discussed above), then later commented that plaintiffs need to show the same deliberate indifference as required for a Title IX claim.
Legal commentators like Slate’s Dahlia Lithwick and the court reporter for ScotusBlog took that later comment as the lawyer contradicting herself, and agreeing that the standard under both the Constitution and Title IX is exactly the same (deliberate indifference). So, seemingly, did Justice Stevens.
I don’t agree. I think the lawyer was just saying that deliberate indifference has to be shown in addition to discriminatory intent, not in place of it. What she was saying was that since the federal appeals court had already found a lack of deliberate indifference in ruling in favor of the school board on the Title IX claim, that finding was equally fatal on the Constitutional claim, where both deliberate indifference (by the school board) and discriminatory intent (by the official responding to the harassment claim) were required for the board itself to be held liable.
That’s a correct statement of the law, in most cases, as to the school board’s own liability: it needs to be deliberately indifferent to constitutional violations by school officials.
And those school officials, in turn, only violate the Constitution (thereby subjecting themselves to individual liability) if they treat girls differently than boys — that is, have a discriminatory purpose, a standard that is even higher than deliberate indifference or conscious awareness of the consequences of not acting in response to harassment. See Personnel Administrator of Massachusetts v. Feeney, 442 U.S. 256, 279 (1979) (Constitution requires showing that government had discriminatory purpose, not just deliberate indifference; “â€˜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 â€˜because of,’ not merely â€˜in spite of,’ its adverse effects upon an identifiable group”).
For that very reason, even when students succeed in stating a sexual harassment claim under Title IX, they often fail to establish a claim under the Constitution, as the National School Boards Association pointed out in its amicus brief (see, e.g., Morlock v. West Central Education District, 46 F.Supp.2d 892, 918 (D. Minn. 1999) (Unlike Title IX, Constitution “does not require the government to prevent private actors from discriminating”)). The Constitution is narrower in its reach in student-on-student sexual harassment cases than Title IX, so a failure to prove a Title IX violation is fatal to any Constitutional claim based on such harassment, while the opposite is not necessarily true.
Since the Constitution’s reach is narrower than Title IX in harassment cases, and the plaintiff in Fitzgerald had no Title IX claim, she simply has no constitutional claim, either, and the plaintiff’s petition should be dismissed by the Supreme Court as improvidently granted, as I earlier suggested, and as Justice Breyer suggested at oral argument.
Holding schools liable for student-on-student harassment under the Constitution would be unworkable, because the Constitution’s Equal Protection Clause, unlike Title IX, is not limited to sexual harassment, but rather covers discrimination and harassment based on an infinite array of characteristics, not just categories like sexual orientation or race, but also things like “class of one” discrimination and animus based on personality conflicts.
As a result, holding schools liable under the Constitution would turn all bullying, and a wide variety of schoolhouse disputes and offensive speech about controversial issues, into potential federal civil-rights violations, even when the speech or conduct at issue is not racist or sexist (the way harassing speech that violates existing federal law is).
It would also result in municipalities potentially being liable for failing to censor speech by private citizens that allegedly fosters a “hostile municipal environment,” which would raise very serious free speech problems.