An Important Case the Supreme Court Heard This Week Shows Why Constitutional and Statutory Remedies for Gender Discrimination are Not Redundant

By DOUGLAS W. KMIEC

Wednesday, Dec. 03, 2008

The Supreme Court argument this week in Fitzgerald v. Barnstable School Committee was less than helpful to the petitioner's constitutional cause. The Justices were given little help by counsel in working through the complex interrelationships between constitutional and statutory remedies for gender discrimination. Normally, when the correct interpretation of a major federal statute outlawing gender discrimination by educational institutions (Title IX) is at stake, not to mention constitutional equal protection rights, the Court can count on the Solicitor General to help. But the Bush SG was nowhere to be found, and as a result, the Justices were unsure, with the always-self-confident exception of Justice Scalia, as to why this important case was even granted review.

Yet, the reason to grant review is all over the record and the question to be decided is unmistakably important: Do claims of gender discrimination deserve (and were they intended to have) both constitutional and statutory remedies? If the Court gets past its oral argument floundering and pays attention to Congress' intent and the particular equities of this case, the answer should be a resounding "Yes."

The case is one of the most significant of the current Supreme Court Term. It is also one that unfortunately illustrates the difference between the Bush Administration and the incoming Obama Administration - even though neither is a party in the litigation. But, of course, therein lies the difference: The Bush Justice Department isn't in a lawsuit where the demands of constitutional justice - not to mention the practical importance of assisting the Justices - say that it should have been, and it is hard to imagine that the Obama Administration will not be in cases like this one that occur on its watch.

The Statutory Background:

Congress enacted what is now 42 U.S.C. § 1983 shortly after the Civil War, in order to enforce the Fourteenth Amendment's guarantee of equal protection of the laws. The statute allows civil actions for damages to be brought based on allegations of violations of constitutional rights. Since then, § 1983 has served to make tangible the Constitution's promises of equal protection, due process, and other rights enumerated in the Bill of Rights and the Fourteenth Amendment.

In particular, Section 1983 has played a critical role in combating unconstitutional discrimination in education. Women and girls have made progress, but no one with a daughter - and I have three - would ever question that in 2008, women and girls still face serious discrimination. They may also - as this case regrettably illustrates - sometimes face harassment from the earliest moments in their pursuit of education.

The notion that Congress passed Title IX to displace the existing constitutional remedy § 1983 provides is simply untenable. Congress passed Title IX as an additional, not a substitute, remedy. The idea was to enhance civil rights protection, not to engage in a type of legal bait-and-switch, which would leave outrageous examples of gender harassment, and of official indifference to it, unremedied. Title IX's prohibition against sex discrimination applies only to educational programs and activities, whether public or private, that receive federal funds. Receipt of such funds is voluntary: a school district or educational program could purposefully avoid Title IX's requirements by declining to accept them. In contrast, the Equal Protection Clause applies to all "state actors," regardless of whether they receive federal funds, and a public school or program that does not receive federal funds cannot thereby evade its constitutional obligations.

The Facts of the Case Before the Court, and the Decisions Below

In 2000-01, Jacqueline Fitzgerald was in kindergarten at Hyannis West Elementary School. An eight-year-old third-grade boy demeaned young Jacqueline every time she wore a skirt to school, forcing her to lift her skirt when they were on the bus, pull down her underpants, or spread her legs, while other students laughed.

This indignity was only compounded by school officials, who were unwilling even to inconvenience the offending boy by placing him on a different bus. The best school officials could do was offer a remedy that - no surprise - singled out the female victim. The Fitzgeralds began driving Jacqueline to school themselves, but when the harassment spilled into the hallways of the school, they complained again, but to no avail.

The trial court refused to consider the Fitzgeralds' § 1983 constitutional claim, and under the narrower Title IX, the court ruled against them. The Court of Appeals affirmed - further revealing the need for the full remedy Congress intended § 1983 to provide.

Some of the Justices, at oral argument, seemed flummoxed by a lack of specificity about the nature of the constitutional violation in the Fitzgeralds' case, a concern, again, from which a sound response from the AWOL Solicitor General would have waved them away. The factual development of the Fitzgeralds' particular claim never happened because the trial judge erroneously, as a matter of law, would not allow evidence of a constitutional claim - which, hypothetically, could consist of differential gender favoritism in school disciplinary matters. Again, an SG fighting to vindicate civil rights could have easily blunted that factual gap, by reminding the Court that its duty is to set forth the appropriate legal framework and remand to allow the Fitzgeralds to then make their constitutional case below.

Two Legal Remedies Were Intended to Exist

In passing Title IX of the Education Amendments of 1972, 20 U.S.C. § 1681, Congress did not intend to eliminate the historic ability to enforce the Constitution's right to equal protection through § 1983. Nothing about the nature, text or history of Title IX suggests otherwise.

Under Title IX, for example, the Attorney General is empowered to intervene in Section 1983 litigation, something that would not be possible if these lawsuits were mutually exclusive. Title IX's substantive coverage is also different from that of § 1983. Moreover, under Title IX plaintiffs may only sue recipients of federal funds, and the only express remedy the statute provides is the loss of funding for an offending institution. Only through a prior Supreme Court case, moreover, was it established that private persons could sue to enforce Title IX; this was an implied, not an express, private right of action. It is more than a little strained to argue that Congress intended an implied cause of action under Title IX to displace the historic manner in which civil rights have always been enforced under Section 1983.

The Legislative History Is Clear - But Will the Court Examine It?

This case also illustrates yet another difference the Obama Administration is likely to make - ultimately - for the Court: President Obama is very likely to appoint Justices who carefully take into account some of the most obviously helpful information on the meaning of federal laws: their legislative history. Statutory interpretation on the present Court is limited by the allergic reaction some of the Court's most conservative members have for legislative history. Unfortunately, the methods these Justices prefer are far less illuminating, relevant, and authoritative; they may indulge an imaginatively-constructed "plain meaning" or explore the dictionary despite clear statements from a bill's sponsors and supporters about what it was meant to say and do.

In the context of the present case, legislative history indicates that Congress, when it passed Title IX, had the intent to leave in place previously available remedies under Section 1983 for constitutional violations. At the same time it was enacting Title IX, Congress was authorizing the Attorney General to intervene in individual cases challenging sex discrimination under the Equal Protection Clause, as 42 U.S.C. § 2000h-2 shows. The legislative history reveals why having two paths to remedies was important. Congress was greatly concerned that individual lawsuits would yield incoherent or scattershot jurisprudence, and it was Congress' intent in authorizing intervention by the United States to bring order to this area of law.

Looking at the legislative record is even more enlightening because it discloses something never to be found in the freestanding words of the statutory text or even the well-thumbed pages of Justice Scalia's dictionary: namely, that the drafters of Title IX were imitating Title VI. Congress knew that, for many years prior to Title IX's enactment, Title VI had been applied in cases also alleging parallel Equal Protection claims, brought under § 1983, of unconstitutional race discrimination. Indeed, a quick look at the books reveals multiple cases in which the courts openly discussed the interplay between Title VI and equal protection claims.

Of course, it is not just legislative history that would be ignored were Title IX to be construed to displace constitutional remedy; it would also be the central plot of constitutional civil rights story, itself. Title VI was enacted because notwithstanding the landmark of Brown v. Board of Education in 1954, and the subsequent implementing decision in Green v. County Sch. Bd.. in 1968, Congress was greatly displeased by the lack of progress in school desegregation. Just as Congress intended Title VI to facilitate access to educational programs without regard to race by not undermining any available remedy of constitutional injury, so too Congress wanted greater educational opportunity without reference to gender on the same constitutionally-protected terms.

More Compelling Arguments Can Be Found in the Court's Own Precedent and the Realities of Persisting Gender Discrimination

Were the Court to ignore this context, it would also be disregarding the context of some of its most important recent precedent. For example, statutory and constitutional claims were side by side in its 2003 decision in Grutter v. Bollinger, where the challenge to the Michigan Law School's admissions policy as violating the Fourteenth Amendment's ban on race discrimination was brought together with a statutory claim under Title VI.

As weighty as the legal arguments are that Congress intended for Title IX to add to, and not subtract from, the existing constitutional remedy, these pleadings are superseded by the reality of continuing gender discrimination in education. The National Women's Law Center's amicus brief is a disturbing compendium of the sad facts. Girls in high school are still being clustered into "traditional women's occupations," such as cosmetology. Women students in college are still being discouraged from pursuing math and science, with the percentage of females obtaining undergraduate degrees in these areas having plateaued at around 20%. The stereotyping in curricula, in turn, leads to lower earning potential. When educational doors to even basic jobs like maintenance and repair occupations are closed to women, wage differentials of $800 per week are not uncommon.

And closer to the ugly facts of this case, the problem of harassment require full redress. Female harassment at college continues unabated. A 2006 study of college campuses done for the AAUW found that 62% of female students reported harassment. The study - by Catherine Hill and Elena Silva - is entitled "Drawing the Line: Sexual Harassment on Campus" and can be found here: www.aauw.org/research/upload/DTLFinal.pdf. (The statistics at issue can be found on page 31.) Sixteen percent of those students who reported harassment said that it was so severe that it interfered with their ability to study and focus on class work. Twenty-seven percent of the same group reported that because of harassment, they had stayed away from particular places on campus.

While Justices Roberts and Alito May Well Surprise Some Observers By Recognizing Both Remedies, the Bush Justice Department's Silence Is Inexcusable

In campaigning for president, Barack Obama signaled that he intended to appoint men and women to the bench who would have empathy for those who were the most vulnerable or overlooked in society. Then-Senator Obama often explained his vote against the confirmation of Chief Justice Roberts and Justice Alito on this basis. Even as I campaigned as a surrogate for Senator Obama in the battleground states of Pennsylvania, Ohio and Michigan, I took issue with his negative assessment of Roberts and Alito. I rested my dissent with my candidate not only on my greater opportunity to know these jurists (I served with them both in the Reagan Administration), but also upon my admiration for their honesty and thoroughness in matters of statutory interpretation. It's not clear that the outcome in Fitzgerald will help me prove my disagreement with the President-elect; though, if the Court is able on its own to surmount its factual bewilderment from the oral argument and not wrongly dismiss now on the basis of that factual confusion, I think it is likely that Justice Alito (though he was stoically quiet during oral argument), and possibly the Chief Justice as well (though one question at oral argument from the Chief seemed to suggest Title IX as preclusive of constitutional remedy), would upon complete study recognize that two remedies were intended, and exist, in this area of law.

Herein, there is a nominating lesson for our new President: In matters of interpretation, it is not necessarily ideology that gives the desired outcome, but sensitivity to Constitutional and Congressional purpose and a willingness to decide cases in accordance with its fullest expression, and not merely temporize by taking cases and then not deciding them or giving such narrow decision that they invite repeated, and costly, litigation.

President-elect Obama, at one point during our campaign, praised Justice Breyer's pragmatic problem-solving. Such an approach is praiseworthy, but it was not on display in the Fitzgerald oral argument, where Justice Breyer also appeared to be entangled by the absence of a developed record, when it was the law, and not the facts, that need filling out. Justice Ginsburg - whom I am certain the new President admires for her lifetime of dedication to gender equity - perhaps will straighten out her fellow Clinton-appointed colleague in conference. Justice Ginsburg's questioning from the bench readily perceived the remedial difference - and I would say inadequacy - of Title IX without Section 1983 and the constitutional remedy.

Live by Ideology, Die by Ideology

One cannot help concluding that those tending the final months of the Bush Justice Department didn't think Fitzgerald was worth its time. That is wrong as a matter of justice and for all the specific reasons suggested above, but it is also ironic. The supposition that this was just a gender case of ideological interest to progressives missed the amicus pleading of the conservative Pacific Legal Foundation (PLF), which sought to support both Title IX and constitutional remedy because, through the PLF's conservative lens, the athletic improvements for women and girls have come via federal regulations that discriminate against males. Whether or not one can credit that claim in the final weeks of all-male NCAA football dominating the networks, I leave to the reader to determine, but no doubt PLF, like the parties and the Court, would not have minded an assist from the Solicitor General. But then, perhaps there is justice for an administration that has made ideology its touchstone on virtually everything, from dismissing its own U.S. Attorneys to the laws it signed but reserved the right not to enforce, that an ideological stereotype (that this was just a women's rights case) may have blinded it from an ideological opportunity to turn Title IX on its head.

However the existing Court ultimately aligns, the silence of the Department of Justice in this case does speak loudly. Indeed, it cries out for a change in Supreme Court advocacy, and a revival of the salience of legislative history. The mere happenstance of this argument's timing - just prior to sweeping presidential change - should not deprive any American citizen of his or her constitutionally-protected rights.


Doug Kmiec is Chair and Professor of Constitutional Law, Pepperdine University. The former head of the Office of Legal Counsel for President Reagan, Professor Kmiec campaigned for President-elect Obama and authored Can a Catholic Support Him? Asking the Big Question about Barack Obama (Overlook Press/Penguin 2008) available at Amazon.com and in local bookstores.

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