The Supreme Court tries to imagine its way out of a sex discrimination case.

Oral argument from the court.
Dec. 2 2008 6:51 PM

The Wheels on the Bus

The Supreme Court tries to imagine its way out of a sex discrimination case.

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School bus

It took six months for Jacqueline Fitzgerald, a kindergartener in Hyannis, Mass., to tell her parents that every time she wore a skirt on the school bus—typically two or three times a week—a third-grade boy forced her to lift it, pull down her underwear, and spread her legs while he and his classmates looked on and laughed. It takes a little more than 10 minutes this morning for the justices hearing argument in Fitzgerald v. Barnstable School Committee to tell the Fitzgeralds' lawyer that they had no idea why they agreed to hear this case.

Dahlia Lithwick Dahlia Lithwick

Dahlia Lithwick writes about the courts and the law for Slate

It's one of those days in which everything that can go wrong does, on and off the record. The Fitzgeralds' lawyer, Charles Rothfeld, barely opens his mouth to argue before Justice Ruth Bader Ginsburg orders him to raise the podium. As he manfully turns the ancient crank, Justice John Paul Stevens starts teasing: "That's enough! We can't see you!!!" As Rothfeld attempts to lay out his argument, strange booming and banging noises emanate from nowhere—identified in the transcript only as "(banging sound)"— eventually compelling Chief Justice John Roberts to say, "We'll give you an extra 10 seconds." Justices Clarence Thomas and Stephen Breyer set a record for loud whispering among themselves. And that's all before three of the four justices who speak during the hourlong argument express doubt that the court should be deciding this case at all.

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Jacqueline Fitzgerald's parents felt their daughter's abuse warranted a serious response from the school. The school attempted to investigate Jacqueline's allegations, but since the complaining and corroborating witnesses were all kindergarteners and deemed "too young to be credible," they ended up taking very little action. When the school failed to discipline the bully, place a monitor on the school bus, or assign the boy to a different bus, the Fitzgeralds sued the school district. They alleged violations of Title IX, which prohibits sex discrimination in schools receiving federal funds, and of the Equal Protection Clause of the Constitution under Section 1983 of the U.S. Code, a Reconstruction-era civil rights statute.

The trial court found the sexual harassment of Jacqueline to be severe and pervasive, characterizing it as "one of a parent's worst nightmares." Nevertheless, the district court granted the school's motion for summary judgment on the Title IX claims, finding the Fitzgeralds had not proved that the school showed "deliberate indifference" toward Jacqueline, as needed for liability. The District Court also found that the claims under Title IX precluded further claims under Section 1983. The 1st Circuit Court of Appeals affirmed, agreeing with the district court that the Fitzgeralds failed to meet the standard for Title IX liability and that "Congress saw Title IX as the sole means of vindicating the constitutional right to be free from gender discrimination perpetrated by educational institutions," thus pre-empting their 1983 claims. This is the question the Supreme Court ostensibly needs to resolve: The 1st, 2nd, 3rd, and 7th Circuits have all held that Title IX pre-empts Section 1983 claims. The 6th, 8th, and 10th Circuits allow plaintiffs to bring both Title IX and 1983 suits. The consequences for future gender discrimination suits in schools are enormous, as are the consequences for school districts defending such suits.

As he contends with all manner of technical difficulties, Charles Rothfeld argues that there is no evidence whatsoever that in enacting Title IX, Congress intended to pre-empt Section 1983 claims. Justice Scalia scowls about how the court "invented" a right of action under Title IX in the first place and wonders if "the question ought to be whether this Court intended to have the Title IX action which it invented preclude 1983?"

Ginsburg, who might almost be accused of hogging the ball this morning, tells Rothfeld that he can win the Title IX pre-emption issue and still lose the case if the school acted reasonably. "Yes, you have two claims; but if you lose under Title IX, you are going to lose under 1983 as well." Rothfeld replies that "there is more to this case" than the ill-fated Title IX claims, and Ginsburg presses him on what that "more" might be. When he suggests that his winning 1983 claims are not in the record but that further discovery might have uncovered better evidence, Ginsburg stops him again. "But there was no allegation at all of that kind in this complaint."

Justice Breyer seems to agree that if there was "no intentional discrimination and the school board behaved properly," the court shouldn't base its decision on a theoretical 1983 claim. Instead, he threatens we "should dismiss this as improvidently granted and wait until somebody does this again."

It falls to Justice Scalia to point out that "we were warned about all these problems in the brief in opposition, weren't we? And we nonetheless granted cert?" To which Rothfeld replies, "I don't presume to tell the court what it was thinking when it granted review of the case, but it did presumably reject those arguments at that point."

Rothfeld explains that it defies logic to suggest that when Congress enacted Title IX, it set about to permit schools, by accepting federal funds, to insulate policymakers from liability for constitutional violations. "It's inconceivable that Congress could have had that in mind when it enacted a statute that was clearly designed to expand and strength protections against sex discrimination," Rothfeld says.

Kay Hodge represents the school district, and she immediately gets on the wrong side of Ginsburg when she claims that Title IX "provides a remedy for sex discrimination in a broader category of circumstances than the Equal Protection Clause." "Explain that," orders Ginsburg. And as Ginsburg presses her, Hodge insists that while the protection afforded under Title IX is broader, the standard for both the statute and the Constitution is the same: "deliberate indifference." Throughout the argument, she will continue to argue that the standards are the same for both and yet also somehow different.

Breyer asks her why not just send the case back to the lower court for determination of the Section 1983 claims. Hodge replies that "there is no issue in controversy anymore." This is the problem Ginsburg identified earlier: no additional facts in the record. Scalia responds, "The other side says that there may be, and I don't know why we ought to get into that." He grins at Hodge as he asks, "Why can't we just send it back and let them figure that out and we decide what we took this case to decide, namely, the split that now exists in the Federal courts over whether Title IX precludes the use of 1983." Hodge repeats that "there must be an issue in controversy." Scalia nods toward Rothfeld: "He says there is an issue in controversy; that's good enough for me."

Then Ginsburg and Hodge proceed to run out the clock, chiefly by confusing and misunderstanding each other in ever-shorter sentences.

The problems with this case start with the awful facts of Jacqueline Fitzgerald's abuse, but they don't end there. The thin record forces the justices to consider imagining a better record in order to resolve a very urgent question. One of the oldest adages in the legal profession is that "bad facts make bad law." The court ends its session today bogged down over the question of whether imaginary facts can ever really make good law.

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