In the end, I am dismayed by the schools reaction to the events that took place. The denial of punishment and clearly defined policy to oppose these actions in should have been completed. For perspective, the students involved would be underclassmen in high school.
By ADAM LIPTAK
Published: December 2, 2008
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 appeals court also ruled that Title IX, which does not allow suits against individuals and contains other limitations, was the only statute under which the parents could sue. 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.”
“A determination by a court that the school district acted reasonably in relation to these complaints” in the context of Title IX, Justice Ginsburg reasoned, was probably sufficient to dispose of the parents’ Section 1983 claim as well.
Charles A. Rothfeld, representing the parents, appeared to have the better of the argument on the interaction of the two statutes, but he struggled to identify the theory that would allow his clients to win the case under Section 1983 should the Supreme Court allow them to invoke it.
Justice Antonin Scalia said the court should decide the legal question and let the lower courts sort out its application in this and other cases. How the two statutes interact “is an important question,” he said. “It’s why we took the case. Why can’t we decide that issue and then for all these loose ends send it back to the Court of Appeals?”
Justice Stephen G. Breyer suggested another possible outcome. Perhaps, he said, the case should be dismissed as improvidently granted and the issue should await decision in a more suitable case.