Fitzgerald v. Barnstable School, No. 06-2596 (10/5/07). This is an elementary-school peer-on-peer sexual harassment case. But, the First holds that the school officials responded to the incidents when reported, and therefore didn’t violate the law. In this case, the police department launched a concurrent investigation and eventually found that the “victim” wasn’t credible.
The First explains that Title IX “does not make an educational institution the insurer either of a student's safety or of a parent's peace of mind. Understandably, then, ‘deliberate indifference’ requires more than a showing that the institution's response to harassment was less than ideal.” I always thought this was axiomatic.
The First, however, rejects the District Court’s rationale that “Title IX liability only attaches after an institution receives actual notice of harassment and the institution subsequently "causes" the victim to be subjected to additional harassment.” Instead, the First says that the inquiry must be broader, and the court must inquire as to whether the school’s response was adequate, though some deference must be paid to the school’s balancing of its duties to everyone (including the accused).
The First bifurcates its 1983 analysis into a “deprivation of constitutional rights” and “deprivation of statutory rights” analysis. You should look below the fold.
As to the statutory argument the First holds that a statute that provides for withholding of federal funds does not become enforceable via 1983 unless it is actually has a remedial scheme itself that allows for a private right of action. So, Title IX (with its restrictive remedies) can’t be combined with 1983 to allow an action against individual school officials.
The First finished by saying that Title IX is almost the exclusive means of pursuing school-based gender discrimination claims. But, “Our holding on this point should not be read to imply that a plaintiff may never bring a constitutionally-based section 1983 action against an employee of an educational institution concurrently with the prosecution of a Title IX action. For example, when a plaintiff sues an individual who is himself alleged to be immediately responsible for the injury, such an action may lie regardless of whether the claim sounds in equal protection or some other constitutional theory.”
What is strange about this opinion is that all the perpetrators (including kindergarten students that the police found incredible and Third graders that the police found credible) are named in the opinion. Is this really a good idea?
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