2008-2009 Supreme Court Term Begins

Today the Supreme Court resumes
hearing oral argument, ushering in the 2008-2009 term.  Over the
past several years, the Court’s significance in the lives of women
and in the progress or rolling back of reproductive rights and women’s
access to reproductive health care has become only more pronounced.   

This winter, the Court will
hear arguments in four cases with particular significance for women
in the workplace. In October, the Court will consider Crawford v. Metropolitan
Government of Nashville
which will ask whether employees who comply with their employers’
internal sexual harassment investigations are protected from retaliation. The plaintiff in Crawford lost her job after confirming allegations
of sexual harassment made by another employee.  

In December, the Court will
hear three more cases that deal with employees’ right to challenge

In Fitzgerald v. Barnstable,
the Court will examine whether public school students can sue for sex
discrimination both under Title IX, the law that bars sex discrimination
in schools that receive federal funds, and as a Constitutional violation,
or whether the existence of Title IX prevents public school students
from challenging sex discrimination as a violation of the Constitution. 
An amicus brief filed by the ACLU, the National Women’s Law Center,
and other civil rights groups argues that, "Properly understood, Title IX
was intended to supplement, not replace, the right to equal protection
guaranteed by the Constitution itself." The case concerns a kindergarten
girl who brought claims of sexual harassment against a male classmate,
explains the National Women’s
Law Center’s blog Womenstake

Because of the high standard for proving sexual harassment, lower courts
did not let the girl’s case go to trial and the Court of Appeals for
the First Circuit said that "remedies under Title X [were] the only
ones she could pursue, and therefore upheld dismissal of her claims
under the Constitution."  National Partnership for Women &
Families observes that "The
case may determine whether women have a wide range of legal options
to challenge discrimination in education." 

Whether pregnant women who
worked for AT&T will be discriminated against not once but twice
is at issue in AT&T v. Hulteen.  Before the Pregnancy
Discrimination Act was enacted, in 1978, employers could offer substantially
less leave for pregnancy than for other short-term disabilities;
AT&T was one such employer.  Now, the discriminatory treatment of
pregnancy is showing up in women’s pensions. Womenstake explains, "Hulteen is one of four women who
sued AT&T after they received notice of their pension benefits.
They learned that those benefits were lower than they would otherwise
have been because they did not get credit for most of their pregnancy
leave."  The 9th Circuit Court ruled in favor of Hulteen
and the other women, but the Supreme Court has agreed to review the

And in 14 Penn Plaza LLC
v. Pyett
, the Court will decide whether, when a collective bargaining
agreement stipulates that employees must address discrimination complaints
through arbitration, employees lose the right to sue for violation of
anti-discrimination statutes. 

"The Fitzgerald,
, and Hulteen cases are of critical importance for
women’s statutory and constitutional rights," Marcia Greenberger,
president of the National Women’s Law Center, says. In this term,
"All who care about maintaining hard-fought legal rights for women
will be watching next term to make sure that their right to fair pay
and benefits, equal education, and protection from discrimination is
not undermined." 

At the close of the 2007-2008
Supreme Court session, Greenberger observed, "We squeaked by this
term without major precedents being overturned. But this was not a term
where the Court considered a broad array of key legal protections for
women, including those affecting their health and privacy rights."  

The Supreme Court’s term
begins just as the question of judicial nominees and court-related issues
are moving up as an issue of concern for voters and, certainly, for
the presidential candidates themselves. "Judges are what you refer
to as a ‘last 30 days’ issue, and it’s hard to know how it might
play," Evan Tracey, of CMAG, a company that monitors political advertising,
told the New York Times. “Now is the time when you start hearing messages that connect with the
single-issue core voters — guns, abortion, civil rights. And it’s all
about judges.”

President Bush will deliver
a speech today on his judicial philosophy, likely highlighting the difference in judicial nominations between Sen. John McCain and Sen.
Barack Obama. "Both presidential campaigns are gearing
up for the possibility that court-related issues will become an X factor
in some swing states," writes Patrick Healy
for the Times

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    There is a slow emergence of blog comments regarding Fitzgerald v. Barnstable on the internet. It would be helpful if some of the underlying depositional facts associated with the case were made available to readers. In 2001 in the Barnstable School System, bus policy was individually established by the principals at each school within the district. This case arose as a result of a school approved policy of moving bullies to the front of the school bus – ostensibly to remove them from other students and allow the driver to keep an eye on them. What the policy did not take into account is the fact that the drivers have to watch the road, and for the most part their rear view mirrors are angled to view the rear seats – not the front seats. When the Barnstable school system decided to save money by eliminating the kindergarten buses and putting those students on the regular buses, Hyannis West Elementary did not update the bully placement policy. School policy, therefore, put the worst offending bullies directly behind the kindergarten students on the bus rides to and from school. It took our five year old daughter six months to finally tell us what had been happening on the bus from day one – every time she wore a dress, the boy assigned to the seat behind her would lean over her seat and make her lift her dress, pull down her underwear and spread her legs. On February 14, 2001, the day we learned of our daughter’s plight, we informed her principal and were told an investigation would be conducted to determine who the boy was. What did the investigation consist of? Well, the principal chose the school’s $11,000 per year prevention specialist/the lunchroom monitor (quite possibly the lowest paid full time position in the school) to head up the investigation. The Barnstable school system had a trained Title IX officer – he was never informed of nor consulted regarding the allegations (superintendent and principal’s depositions). The seating policy was enforced by the bus driver – she was never asked who sat behind our daughter, nor was she informed by the school of the allegations (bus driver’s affidavit). The investigation consisted of requiring our daughter to identify the bully. He did not ride the bus the next day, so our daughter could not point him out, she did however point out two girls that sat near her. These girls confirmed the harassment happened (witness’ affidavits). The following day the bully was pointed out by our daughter. The “prevention specialist” provided the names of the witnesses and bully to the principal, whereupon he dismissed her from the investigation (prevention specialist’s deposition and police report). The principal did not forward the full statements of the witnesses to the police (detective’s deposition). The entire school investigation was completed in two days and the principal’s conclusion was that the school could do nothing due to the fact that the only witnesses were other kindergarten kids and the bully did not admit to his actions. (anyone else notice a conflict of interest between having the person who set the bus policy also being in charge of directing, ending and acting as liaison for the investigation?). The only option provided to us was for us to involve the police and if they found evidence of a crime, then the school would respond appropriately. On February 14, 2001 we had begun driving our daughter to and from school, by February 16th, we were requesting that the school remove the bully from the bus, separate the upper class bullies from the younger riders and provide a monitor for our daughter’s bus. On March 1, 2001 the school changed our daughter’s bus assignment. The new bus would have no monitor, no change to the seating policy and no reprimand to the bully. We continued driving her ourselves. The police investigation dragged on for some time and eventually determined that because there was no physical contact, there were no grounds for a criminal complaint. In late April / early May, the clerk magistrate handling the criminal case informed us that it was that the school system – not the court system – that needed to properly address the problem. At this point the school began to adopt an attitude (based on the police failing to criminally prosecute) that “nothing happened on the bus,” and refused to do anything that could be construed as admitting there had been and still was a problem. The school failed to inform our daughter’s teachers of the harassment, so they did not know to keep her away from the bully; the school did not ask the bully to stay away from her, and the school repeatedly removed medical records in our daughter’s school file that referenced the harassment. Nothing was done to address the anxiety our daughter endured each time she encountered the bully at school, although the principal did respond to our concerns by telling us his hands were tied and there was nothing he could or would do. Of particular note was the fact that the bully was frequently allowed to walk through our daughter’s gym class (for no apparent reason) and in one instance was invited to join her class. She was made to “high-five” the bully as a show of good sportsmanship. When the principal refused to ask the bully to not walk through the gym class, we took advantage of the “Wednesday classroom observation program” and began sitting in on her Wednesday gym classes. Our observation usually consisted of sitting against the wall, reading the newspaper and watching the bully walk through her class with complete impunity. Rather than ask the bully to stop disrupting her class by walking through it, the gym teacher complained about us to the principal. Despite the “open door policy” for classroom observations, we were told by the principal that in order to continue, we would have to provide a doctor’s note authorizing our presence – our daughter’s doctor was so shocked by the requirement she provided the school with a note characterizing the gym class as counter-productive to her therapy. All four of the adults in the Barnstable school system involved with this case (superintendent, assistant superintendent, principal, and lunchroom monitor) were asked in their depositions if they had ever checked to see how our daughter was doing after they first became aware of the harassment, each one said, “No”. So much for no child left behind.

    Now to the court case. The first Court to rule on the facts applied the three prong test for compliancy and determined that the harassment did indeed rise to the level of a Title IX infraction due to the severity and repulsiveness of the incidents, that the school did have actual notice of the harassment, but that the post-notification harassment did not rise to the same level as the pre-notification harassment. The Court therefore determined (without specifically identifying it) that whatever response the school made to the allegations must have been appropriate (based on the cessation of overt sexual harassment) and therefore the school could not be held liable for violating Title IX. The Appeals Court accepted the lower Court’s factual findings (that the harassment occurred and was egregious enough to warrant invoking Title IX), and further determined that the after notice harassment did not need to rise to the same level as the pre-notification harassment in order to maintain a Title IX infraction. However, instead of reversing the lower court’s decision, the Appeals Court affirmed it on the basis that Title IX requires nothing more than a response from the school – it does not have to actually correct the situation. In this case, the Court determined that moving the victim to another bus and shrugging their shoulders in response to additional complaints, were considered appropriate enough responses for the school to be in compliance with the strictures of Title IX. Both courts affirmed the preclusion of Sec 1983 by Title IX without considering the differences between the two.

    What are those differences? Other than the obvious difference of who can be held at fault (institutions under Title IX; individuals under Sec 1983), precedent has established the main difference between Title IX and Sec 1983. Title IX requires a school to respond to incidents of sexual harassment or discrimination; Sec 1983 requires a school to correct incidents of sexual harassment or discrimination. By example, Brown v The Board of Education was a Sec 1983 case, the Court required the school to correct the discrimination inherent in the “separate but equal” responses school systems had made to the then prevalent attitudes in the nation’s social makeup. Title IX’s history is rooted in the application of Sec 1983 to incidents of schools’ failures to break free from the bonds of outdated and unacceptable stereotypical social attitudes. Discrimination against women and girls in both primary and secondary education, as well as graduate education were rampant in the first half of the 20th century. The programs and curriculums of a vast majority of educational facilities were geared more so towards male achievement in a larger number of disciplines, and less so towards female achievement. Title IX was enacted to address that discrepancy, but Sec 1983 was still there to enforce it. The backing of Sec 1983 was enough for many school systems to use their response to Title IX violations to correct the situation, thereby negating the need to address Sec 1983 directly. Thirty five years of Title IX has evidently led many schools and courts to forget the role of Sec 1983 – Title IX is the soft walk; Sec 1983 is the big stick. To put it more aptly, if Title IX and Sec 1983 were to be applied to the problem of a bridge having been washed out, Title IX would be satisfied with the posting of a sign saying “Bridge Out”, while Sec 1983 would require the replacement of the bridge. In those districts where the response to a washed out bridge is to correct it by replacing the bridge, it would be perfectly fine to say that Title IX has precluded Sec 1983; but in those districts that respond with just a sign, to claim preclusion of Sec 1983 would be a disservice to the Constitution. Reassigning our daughter to another bus without correcting the seating policy on the buses can be classified as a response under the requirements of Title IX, but it did little to address the correction requirements of Sec 1983 (And as far as the Court stating that the school also offered to separate the bullies from the kindergarten students – it didn’t happen. The school attorney stated in court that the Barnstable school system did not change the seating policy and could not provide a reason why. Additionally, the superintendent, when asked about the effect of the seating policy on other kindergarten students and his failure to correct it, stated in his deposition, “We didn’t see that as a problem. Mr. Fitzgerald and Mrs. Fitzgerald see it as a problem. We don’t.”). Unfortunately, Title IX has to deal with problems much more complex than a washed out bridge, but the language is there for it to appropriately address those problems, so long as school administrators remain mindful of the statue backing it up.

    Fitzgerald v Barnstable should provide the Supreme Court justices with ample evidence of the failure of Title IX to survive the onslaught of school attorneys’ efforts to justify their districts’ stubborn refusals to simply abide by statutory law and do the right thing when confronted with an incident of sexual harassment – how hard would it have been to just put a monitor on the bus seven years ago? According to the superintendent, it would have been a simple thing to do. He just chose not to do it. The image of three monkeys (with a slight change) comes to mind – see no evil, hear no evil, fix no evil. The systematic indifference to acknowledging the need to address a problem has created an insidious mindset in school administrators of purposely denying a problem exists. Too often the difficulty of confronting a school system steeped in money, legal advice, and public support results in the inability of parents to effect real change in the illusory protections offered by schools. It’s a shame to realize that a school system would spend hundreds of thousands of dollars to defend a problem, and not a dime to fix it. It’s time for schools to stop paying attorneys to mask the issue of bullying and start paying people to fix it. The bill is much cheaper in the end. The Court has the opportunity now before it to remind school administrators of their responsibly to recognize the problems on their buses, on their playgrounds, and in their halls and to address those problems in a meaningful way. Let’s hope they do.

    Lisa and Bob Fitzgerald