DISQUS

Hans Bader · 11 months ago

Although a loss by the defendants in Fitzgerald might not affect school district LIABILITY issues in Massachusetts that much, it could affect DAMAGES. Thus, a loss in Fitzgerald actually could be costly to school districts even in Massachusetts.

Allowing individual officials to be held liable directly under the Constitution would not only add an additional category of defendant under federal law, complicating litigation, it also expand availability of punitive damages heretofore unavailable, or less available, under both state and federal law, since punitive damages are available in constitutional cases against individual school officials even in circumstances where punitive damages would be unavailable under state law and Title IX. Title IX doesn’t permit punitive damages at all. See Barnes v. Gorman, 536 U.S. 181 (2002) (Supreme Court rules that spending-clause statutes like the Rehabilitation Act and Title IX don’t permit punitive damages); Mercer v. Duke (4th Cir. 2005) (punitive damages are unavailable under Title IX).

And you don’t need clear-and-convincing evidence or other elements commonly required by many states (even pro-plaintiff states like California) for punitive damages in a federal constitutional action. And there are other limits it would circumvent as well.

More importantly, if the defendants lose Fitzgerald, even municipalities may be on the hook for harassment by private citizens, since the 14th Amendment, unlike Title IX, applies to all of society -- not just schools or workplaces. See Johnson v. Martin, 195 F.3d 1208 (10th Cir. 1999) (constitution prohibits sexual harassment by state-actor towards citizens in general, not just employees).

So if plaintiff 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.

Hans Bader · 11 months ago

Actually, the Barnstable School Committee doesn't seem to have conceded that deliberate indifference is enough for liability under the Constitution, as opposed to Title IX, which was the (mis)impression I got from its brief in the Supreme Court.

At oral argument, the school board's counsel stated that to find a school board liable, one would need to show BOTH deliberate indifference AND discriminatory intent. (The oral argument transcript is is available at www.supremecourtus.gov/oral_arguments/argument_... )

I think that assertion in oral argument was correct as to the BOARD'S liability under Section 1983 for Constitutional violations -- that is, the plaintiff would need to show both discriminatory intent (by the school official responding to a complaint of harassment by a student) and something like deliberate indifference or a similar policy or custom (by the school board itself) for the school board to be liable.

However, I think that for an INDIVIDUAL SCHOOL OFFICIAL to be liable under Section 1983, it would be enough to show that the school official harbored discriminatory intent, regardless of whether the BOARD was deliberately indifferent or not.

That's a burden different from, and harder for a plaintiff to prove, than Title IX's burden of showing that the relevant decisionmaker responding to the harassment was deliberately indifferent --- which is a standard less exacting than discriminatory intent, as the Supreme Court's decisions in Farmer v. Brennan (1994) (applying deliberate indifference standard, and discussing how it differs invidious intent) and Personnel Administrator of Massachusetts v. Feeney, 442 U.S. 256, 279 (1979) (applying discriminatory intent/purpose standard) make clear.

As the Supreme Court emphasized on pg. 279 in the Masachusetts v. Feeney case, “‘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.” That's more than just deliberate indifference.

However, these distinctions were hard to make clear in oral argument, and the school board's counsel's attempt to draw them confused even seasoned and perceptive Supreme Court observers like Lyle Denniston of ScotusBlog, who described the school board's attorney as distinguishing the constitutional discriminatory "intent" requirement from the Title IX "deliberate indifference" requirement at one point, only to conflate the Constitutional "intent" standard with the deliberate indifference standard shortly thereafter).

The plaintiff can't meet either the discriminatory intent standard, or the lesser "deliberate indifference" standard (plaintiff's failure to meet the latter is why the Title IX claim was dismissed by the lower courts), but it's a much easier case under the discriminatory intent standard, which requires proof that the decisionmaker failed to respond to harassment not just out of laziness, and not just "in spite of" "awareness" of the "consequences" of so doing, but precisely "because of" plaintiff's gender. (The Supreme Court so held explicitly in Personnel Administrator of Massachusetts v. Feeney (1979)).

So the plaintiff's petition really ought to be dismissed by the Supreme Court as improvidently granted -- a possibility Justice Breyer floated during the oral argument itself.