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Fitzgerald v. Barnstable School Committee, a Stealth Assault on the State-Action Doctrine, Should Be Dismissed As Improvidently Granted

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 license racially discriminating), and even if the government is aware of, and indifferent to, that discrimination.  You wouldn't want to live in a society where a town could be sued for failing to dictate whom a resident invites to her dinner party, even based on allegations that she openly discriminated based on sex or religion in whom she chose to invite.  And it would be silly to claim that a town is liable for racial harassment because Nazis marched through it and thus created a "hostile environment," since the Nazis aren't government employees.  This principle is known as the state-action doctrine, and it reflects the fact that the text of the Constitution's equal-protection clause only forbids "states," not private citizens, from engaging in discrimination. But trial lawyers and their allies are now mounting a stealthy, insidious attack on the state-action doctrine, using a sexual harassment case as a vehicle.  A student sued a school district under Title IX and the Equal Protection Clause in Fitzgerald v. Barnstable School Committee alleging that the school was liable for sexual harassment, not by its employees, but by her peers, even though students are not agents or employees of the government (unlike teachers). Title IX, unlike the Constitution or the Equal Protection Clause, contains broad language that doesn't just apply to discrimination by "states."  Using the passive voice, its text protects students from being "subjected to discrimination" in schools regardless of the source of discrimination, even if the discriminator is a student -- provided that the school district is on notice of the discrimination and is "deliberately indifferent" to it.   Thus, Title IX, unlike the Constitution, allows schools to be held liable for student-on-student harassment if school officials are deliberately indifferent to it.  See Davis v. Monroe County Board of Education, 526 U.S. 629 (1999).    By contrast, the Constitution requires a plaintiff to show not just that the government acquiesced in discrimination, but that it acted as it did "because of, not in spite of" the plaintiff's race or sex -- that the government itself discriminated, rather than tolerating discrimination by students, who are not state-actors.  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; "'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 'because of,' not merely 'in spite of,' its adverse effects upon an identifiable group"); Soper v. Hoben, 194 F.3d 845 (6th Cir. 1999) (in harassment cases, equal protection claim requires discriminatory purpose, while Title IX claim requires only showing of deliberate indifference); Morlock v. West Central Education District, 46 F.Supp.2d 892 (D. Minn. 1999) (same); S.S. v. Eastern Kentucky Univ., 2008 WL 2596660 (6th Cir. July 2, 2008) (applying deliberate-indifference standard to statutory harassment claim under Title IX's sister statute, the Rehabilitation Act, but requiring proof that school officials "intentionally treated" student "differently" because of prejudice for student to bring constitutional claim); UWM Post, Inc. v. Board of Regents, 774 F.Supp. 1163 (E.D. Wis. 1991) (Equal Protection Clause requires showing that agent of college, not student, engaged in harassment); contra Flores v. Morgan Hill Unified School District, 324 F.3d 1130 (9th Cir. 2003) (erroneously holding the Equal Protection Clause holds school district liable for failing to stop sexual-orientation harassment or sexual harassment by peers).  In the Fitzgerald case, however, the student's Title IX claim was dismissed for failure to show deliberate indifference by school officials.  And the student's Constitutional equal-protection claim was dismissed based on the theory that Title IX preempts Constitutional remedies. The student's lawyers are now arguing that Title IX doesn't preempt constitutional remedies.  They got the Supreme Court to grant review on that issue.  But it really shouldn't matter, though, because plaintiff simply does not have a claim under the Constitution's equal protection clause -- unless the justices, out of a desire to expand remedies for harassment, gut the state-action doctrine.  Thus, the grant of certiorari should be dismissed as improvidently granted, since the plaintiff could not recover under current equal-protection standards, and the only way the issue presented by plaintiff could matter is if equal-protection standards are rewritten to gut the state-action doctrine, so that instead of being narrower in its reach that Title IX, it is actually broader. Broadening its reach to acts by non-state-actors like students would be a big mistake, since the equal protection clause, unlike Title IX, doesn't just apply to schools, it applies to society generally, prohibiting governments from creating a hostile municipal environment.  See Johnson v. Martin, 195 F.3d 1208 (10th Cir. 1999) (constitution prohibits sexual harassment by state-actor anywhere in society, not just the workplace).  So if Fitzgerald's theory of the Constitution prevailed, local governments would be on the hook for liability for what private citizens say or do in their homes or on public streets, even though the First Amendment has been historically understood to protect even racist and discriminatory speech on public streets, like Nazis marching through the town of Skokie, which was held to be protected speech under the First Amendment in Collin v. Smith, 578 F.2d 1197 (7th Cir. 1978), which rejected the argument that a city's non-discrimination and fair-housing policy required limits on such marches.  That's because federal courts, in dubious reasoning, have held that "harassment" includes a vast array of speech that would otherwise be protected, like comments learned of secondhand by a third party who is offended by them.  See Schwapp v. Avon , 118 F.3d 106 (2d Cir. 1997).  For example, radio programs that are constitutionally protected and do not rise to the level of being indecent nevertheless can support a sexual harassment claim against an employer that tolerates such radio programs being listened to in its workplaceSee Reeves v. C.H. Robinson Worldwide (11th Cir. 2008).  Thus, eliminating the requirement that a harassment claim under the equal-protection clause involve harassment by a state employee would gut the First Amendment and result over time in curbs on broadcast, media, and political speech, as local governments seek to avoid liability for a "hostile municipal environment" by banning such speech by private citizens. Ironically, the groups supporting the plaintiff in Fitzgerald v. Barnstable School Committee, like the National Women's Law Center, once admitted that the Constitution didn't reach peer harassment (that is, harassment by people not employed by school systems or other government entities).  In their reply brief for the plaintiff in Davis v. Monroe County Board of Education, they did not contest the school district's argument that the Constitution doesn't prohibit such harassment (the school district in that case argued that since the Constitution doesn't hold schools liable for peer harassment, Title IX shouldn't either); they insisted, instead, that Title IX is broader than the Constitution in what it prohibits (a not-surprising argument, given Title IX's broader language).  (They may have made that concession because the amicus brief filed on behalf of the school board in that case by two student groups, Students for Individual Liberty and Student Association for Freedom of Expression (1998 WL 847365 (Dec. 8, 1998)), warned the Supreme Court not to recognize peer harassment liability under the Constitution and Title IX, citing examples of campus newspapers being subjected to discipline for racial or sexual "harassment" merely for discussing racially or sexually-charged issues such as affirmative action, the death penalty, and feminism).  Now, by contrast, the same lawyers insist to the contrary in the Fitzgerald case, making the exact opposite argument: that the Constitution reaches beyond  Title IX .  Their whole case rests on that contradictory argument.  (Alas, contradictory arguments are not that unusual in sexual harassment cases). I used to help adjudicate discrimination and harassment claims as an attorney for the federal Education Department's Office for Civil Rights.  Handling such cases generally wasn't too difficult.  But it would have been a nightmare to have to adjudicate the propriety of speech on the radio or in public settings to gauge whether it contributed to a "hostile municipal environment" and was thus "harassing."  Unfortunately, that is the direction we will move in as a society if governments are made liable under the Constitution for "harassment" by non-state-actors like students.