Parents’ Suit Offers Test of Title IX for Justices

This from the New York Times:

WASHINGTON — The parents of a girl who said she had been molested on a school bus seemed poised to win what may turn out to be an empty victory, judging from the justices’ questions on Tuesday at the Supreme Court.

The case was filed in 2002 after the girl, a kindergarten student in Hyannis, Mass., told her parents she was being sexually harassed by an 8-year-old boy every time she wore a dress or skirt to school. Two or three times a week, the girl said, the boy would force her to lift her skirt and pull down her underwear, provoking mocking laughter from the other students on the bus.

Her parents were dissatisfied with the school’s response, which included an inconclusive investigation and the offer to transfer their daughter to another bus. The school took no action against the boy, who denied the girl’s account, and it refused to place an adult monitor on the bus.

The parents sued under two federal statutes, and the argument on Tuesday concerned how those statutes interact.

The federal appeals court in Boston last year ruled that the parents could not win their claim under the federal law known as Title IX, which bars sex discrimination in schools that receive federal money, because they could not prove that the school district had acted with deliberate indifference to the harassment...

The question before the court in the case, Fitzgerald v. Barnstable School Committee, No. 07-1125, was whether the parents might also invoke a broader federal civil rights law known as Section 1983.

Several justices appeared ready to accept that Title IX, enacted in 1972, was not meant to limit the ability to sue under Section 1983, enacted a century earlier. But, in this case at least, they also seemed to think that allowing a claim under the earlier law would make no difference.

“In the civil rights area, there are a lot of overlapping statutes,” Justice Ruth Bader Ginsburg said. “Yes, you have two claims. But if you lose under IX, you are going to lose under 1983 as well.”

This from Mark Walsh at the School Law Blog: Justices Uncharacteristically Reticent in Title IX Arguments