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)).
As we previously explained at length, the Constitution doesn’t permit schools to be held liable for harassment by third parties, like students, just because the school is indifferent to it. Instead, under the Supreme Court’s decisions in Personnel Administrator v. Feeney (1979) and Washington v. Davis (1976), the plaintiff has to show that the school district acted as it did because of the plaintiff’s gender — not because of laziness or indifference, even if it is “aware of” the “consequences” of its indifference.
Some lower courts have figured this out, and some haven’t. In our prior post, we noted that many appellate cases, like Soper v. Hoben (1999), require not just deliberate indifference, but also discriminatory intent, for liability under the Constitution. By contrast, there are other federal appellate rulings, like Flores v. Morgan Hill Unified School District (2003), which ignore the Supreme Court’s Feeney and Washington v. Davis decisions by ruling that the Title IX standard is the same as the Constitutional standard — essentially making Title IX largely irrelevant. Thus, there’s a circuit split on whether the Constitution generally applies to “peer harassment” by students.
The Massachusetts school board that’s being sued in the pending Fitzgerald case, amazingly enough, cites the latter line of cases — the ones that are bad for school boards in general — and not the former ones — that are good for school boards in general — in its brief! [UPDATE: AT ORAL ARGUMENT, THE BOARD ARGUED THAT DELIBERATE INDIFFERENCE WAS NECESSARY, BUT NOT SUFFICIENT, FOR LIABILITY].
I say “school boards in general” because the particular school board that’s being sued would prevail under either standard, even the “bad” one (it already got a lower court to dismiss the Title IX claim against it on the merits, leaving only the Constitutional claim), and because it’s in Massachusetts, a state that already has such freakishly broad state sexual harassment laws that the school board already faces broad liability regardless of how the Supreme Court rules under the Constitution. The school board that’s being sued has less financial incentive than most school boards to limit its future liability under the federal Constitution, because the federal Constitution isn’t the main source of future liability for it.
Fortunately for school boards, the National School Boards Association has filed an amicus brief pointing out that the Constitution doesn’t permit school boards to be held liable for “peer harassment” by students unless the school board refuses to do anything about it because of the plaintiff’s gender — not just deliberate indifference.
The National School Boards Association also makes the point in passing that schools can be sued twice over the same decision — once by a student who claims that her alleged harasser’s discipline was inadequate, and once by the disciplined student claiming that the student’s due process or free speech rights were violated. But it understates that very real dilemma, since it only cites cases that accused students lost, rather than won (probably for tactical reasons — because the NSBA doesn’t want to give the court the idea that such lawsuits against its member school boards have merit).
The First Amendment limits discipline of students whose speech on controversial subjects is sexist, racist, or (in college) sexually offensive, as the recent federal appeals court ruling in DeJohn v. Temple University (2008), striking down a sexual harassment policy on First Amendment grounds, illustrates. State court rulings and state constitutional provisions often go even further, allowing people to say vulgar things that sensitive listeners may complain about.
For example, in Massachusetts, where the Fitzgerald case arose, state law has been held to protect vulgar and suggestive T-shirts even if they are unprotected by the First Amendment (in Pyle v. School Committee of South Hadley (1996)), and a teacher was held to be within her free-speech rights to use and discuss offensive words like “blowjob,” “bitch,” “slut,” and “prick” (in the 1996 Hosford v. School Committee of Sandwich case).
At the same time, under the state supreme court’s 1997 Melnychenko decision, Massachusetts institutions can be sued for vulgar speech or conduct under state sexual harassment laws even if the speech or conduct isn’t based on sex! And individual school officials can be sued under state law, which, like the Constitution (but unlike Title IX) permits individual school officials (not just the school district) to be held liable. Non-employees (like students and volunteers) can already sue under Massachusetts state law (under the 2005 Klemm decision). And state sexual harassment law applies even outside of workplaces and schools (under the 1987 Chasdi decison), going well beyond federal law.
So Massachusetts school boards already face a legal nightmare of liability under state law no matter what they do, regardless of how the Supreme Court rules under the federal constitution in the case currently before it. The plaintiffs’s bar couldn’t have picked a better defendant, for purposes of a test case expanding sexual harassment liability, given how little incentive this particular school board had to fight broadening federal sexual harassment liability.