Analysis
It is it entirely possible that a Supreme Court case could be lost because the original lawsuit that started it all was not better prepared, or asked too little. Whether that has happened this time was the issue that lingered in the courtroom Tuesday as the Justices heard Fitzgerald, et al., v. Barnstable School Committee, et al. (07-1125) — an important case on the remedies available to school children and their parents if a pupil is sexually intimidated by another pupil.
The Court, or at least most of the Justices who spoke out, seemed to want to resolve the legal issue at stake: when Congress passed Title IX to deal with sex bias at federally funded schools (and colleges), did it intend to wipe out any constitutional claim of sex bias at those schools? That is the question the Court had granted and, as Justice Antonin Scalia suggested several times, why not decide it now?
The reason, of course, was that several members of the Court seemed troubled that the original complaint filed in federal court in Boston may have been too spare, or perhaps too opaque in what it was seeking. At one point, in fact, Justice Stephen G. Breyer wondered whether the Court should simply dismiss this case as one that should not have been granted “and wait until somebody does this again.”
When Charles A. Rothfeld, the Washington attorney for the couple that sued over the claimed sexual harassment of their kindergarten girl on the bus by a third grade boy, tried to fill the perceived holes in the lawsuit, Breyer somewhat sarcastically wondered if that meant the complaint would have encompassed an allegation that girls were discriminated against if not allowed to play hockey — a thought that Breyer seemed to be implying was frivolous, at best.
Justice Ruth Bader Ginsburg also pressed Rothfeld about the supposed skimpiness of the complaint’s constitutional allegations — the ones that the lawyer had suggested would go beyond what was being claimed under Title IX. Where, she asked, was there an assertion tohat girls were treated less favorably than boys — so-called “disparate treatment”? The lawyer tried to recover by saying that the case “went off the tracks at the earliest possible stage,” so it would have been futile to fill out the constitutional claims when the trial judge had indicated they were barred because Title IX provided the only remedy.
Justice Scalia, though, noted that the Court had been “warned about these” shortcomings in the initial opposing brief filed by the Barnstable school board, but “we nonetheless granted cert.” Scalia, who referred to the right of parents and children to bring a private lawsuit to enforce their Title IX rights as a mere “invention” of the Supreme Court, appeared bent on getting a ruling on the interrelationship between that “invention” and a constitutional claim under the 1871 civil rights act (Section 1983).
Chief Justice John G. Roberts, Jr., expressed some concern that, since Title IX had some limitations on the remedy available for sex bias in education, allowing a Section 1983-based lawsuit would allow lawyers to “circumvent” those limits. But that was one of the few comments that suggested the Justices were wary of the prospect of reviving constitutional claims in this setting.
The Barnstable School Committee’s lawyer, Kay H. Hodge of Boston, got into some difficulty at the very outset by claiming that Title IX would actually give parents and children greater protection against gender bias than would the Constitution’s guarantee of equal protection. Justice Ginsburg appeared surprised at the assertion, and insisted on an explanation.
Hodge said there would be a need to prove “specific intent” in order to win a constitutional claim of sex bias at school, but it would be enough under Title IX to show only “deliberate indifference.” She then went on, however, to complicate her case by suggesting that the essential definition of wrongdoing under both Title IX and Section 1983 was the same: “deliberate indifference” and that, if the case was lost on Title IX, there would be nothing left to claim under the Constitution.
Justice Breyer asked if it would be possible to imagine a case in which an institution covered by Title IX would be found not to have violated that law, but still could be accused of violating the Constitution. Hodge said she could not imagine such a case.  In this case, she added, there could not be claims under both Title IX and the Constitution because the parents’ claims under both were “virtually identical.”
Rather than get into the interplay between those laws, Breyer suggested, why not send the case back to the First Circuit Court for elaboration? Hodge replied that, because of the overlap in the claims, “there is no issue in controversy anymore” for the First Circuit to decide. But Justice Scalia promptly interjected: “I don’t know why we ought to get into that. Why not decide what we took to decide…and then for all these loose ends, send it back to the Court of Appeals?”
When Hodge said “there must be an issue in controversy,” Scalia responded: “He [Rothfeld] says there is an issue in controversy; that’s good enough for me.”
The Court is expected to decide the case in the spring.
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