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  • Tankosphere Today: July 22, 2008

    Posted in Ongoing Priorities [slideshow_deploy]

    3 Responses to Tankosphere Today: July 22, 2008

    1. Bob Fitzgerald, Hyan says:

      To suggest that there is some sort of “stealth” attack being propagated on the Constitution by this case is not only ridiculous, it’s unwarranted. Your analysis questionably fails to take into account the role that in loco parentis plays in regards to governmental intrusion into private lives, and accordingly, your assumption of a direct corollary between public educational institutions and private homes in the application of Supreme Court rulings, deliberately ignores that greater “parental” role traditionally afforded to school administrators over their students, as opposed to town/city administrators over their citizens. The effort in this case is not to rewrite the Constitution, but rather to properly assign responsibility for a failure to abide by its strictures.

      The difference between Title IX and Sec 1983 in this case, is that Title IX is not enforceable against individuals, while Sec 1983 is. Therefore, according to the 1st District, when a school investigates a claim of sexual harassment under Title IX and: finds the victim credible (Dever, Scully depositions); discovers additional witnesses ( police report 2/17/01 and DSS follow up 2/28/01); fails to notify DSS (Fitzgerald, Deveney deposition) determines that the perpetrator has a history of lying (police report 2/17/01); fails to inform or involve its Title IX coordinator (Scully, Dever depositions); does not question or inform the bus driver (Hastings affidavit); misinforms the police regarding the statements of witness (Marchant affidavit); is informed by the police that the victim is believed to be telling the truth (Hall deposition); is informed that the criminal statues used by the police apparently do not apply to the harasser in this case and that a Clerk Magistrate feels it is the responsibility of the school to correct the situation (Fitzgerald letter to Dever); chooses not to discipline the harasser or restrict him from having additional contact with the victim (Scully deposition); repeatedly removes all references to the harassment from the student’s school file (Fitzgerald deposition), and fails to implement available and affordable remedies it knowingly admits could alleviate the situation (Dever deposition), after all that, under Title IX in the 1st District, the school can then basically tell the parents to “go pound sand”. In the 1st District’s analysis, the standard of reasonableness is so low that any response – negative or positive – is adequate under Title IX simply because it is a response. And because Sec 1983 is precluded by Title IX in the 1st District, the applicability of that at same low reasonability standard cannot be tested under Sec 1983.

      Maybe, with Fitzgerald v. Barnstable , the Supreme Court will remove that preclusion and allow those same facts that evidently fail to meet the institutional liability standards of Title IX to meet the individual liability standards of Sec 1983. And maybe then, in the light of knowledge that a school administrator could be held personally liable for a failure to act reasonably, maybe then a superintendent will do the right thing and correct an unfortunate situation – instead of ignoring it and then resigning to accept a superintendence position at a school system in Linwood, New Jersey that knows nothing of his indifference to students. Maybe, if school principals realized that they would be held liable for their failed policies, and not the town at large, maybe then a principal would think twice before implementing a seating policy whereby the kindergarten students are seated unsupervised at the front of the bus, while at the same time requiring upperclass bullies to sit unsupervised in the same area. And maybe a superintendent would investigate and correct that policy once it became known to him, instead of (as in this case) endorsing it, because “it was irrelevant” to the victim. Unlike you Mr. Bader, I am not an attorney looking for some insidious conspiracy to undermine the Constitution, rather, I’m a parent looking to prevent the harm that was done to my daughter from happening to someone else’s daughter.

      Here’s an interesting quote from the oral arguments phase of the 1st District Court appeal:

      1ST DISTRICT COURT: “If a complaint is made of severe and pervasive harassment by parents such as Jacqueline’s parents, and the school committee says, ‘Go pound sand we’re not going to investigate any such complaint, its not our business,’ and the parents faced with that attitude pull the girl out of school to prevent the further harm that seems inevitable in those circumstances, on your view of the law they don’t have a cause of action under Title IX?”

      SCHOOL ATTORNEY: “That’s a very extreme example your honor, but I believe that’s correct”

      Now there's a flagrant assault on Title IX – maybe while they're looking at the preclusion issue, the Court could find the time to fix that too. I can be emailed at capefitz@yahoo.com

    2. Hans Bader says:

      The attempt by the plaintiff in Fitzgerald v. Barnstable School Committee to rely on in loco parentis to create liability under the Fourteenth Amendment is quite radical, and it shows just how weak plaintiff’s argument truly is.

      Even in the many situations where in loco parentis DOES apply, it doesn’t create a duty to protect under the Fourteenth Amendment, much less demonstrate the “discriminatory purpose” required for liability under the Equal Protection Clause. See Vernonia School District v. Acton, 515 U.S. 640, 655 (1995) (”We do not, of course, suggest that public schools as a general matter have such a degree of control over children as to give rise to a constitutional duty to protect”); D.R. by L.R. v. Middle Bucks Area Vocational Technical School, 972 F.2d 1364, 1370-73 (3d Cir. 1992) (rejecting disabled student’s constitutional lawsuit over sexual abuse by fellow students); Dorothy J. v. Little Rock School District, 7 F.3d 729, 732 (8th Cir. 1993) (same).

      Moreover, for better or worse, in loco parentis no longer applies in many educational contexts. For just one example, its reach is limited, and in some cases abrogated, by the First Amendment, state constitutional provisions, or state education codes. As Justices Alito and Kennedy have noted, it is simply “wrong to treat public school officials . . . as if they were standing in loco parentis.” Morse v. Frederick, 127 S.Ct. 2618, 2637-38 (2007) (Alito, J., concurring).

      At the college level, school officials can’t exercise parental-type discipline, but must often put up with indecent and uncivil speech. Papish v. Board of Curators of Univ. of Mo., 410 U.S. 667 (1973) (vulgar speech protected). The free speech rights of college students are essentially coextensive with those of citizens in society at large. See Healy v. James, 408 U.S. 169, 180 (1972); Thonen v. Jenkins, 491 F.2d 722 (4th Cir. 1973) (free speech rights on college campus are “coextensive with those in the community at large”); DeJohn v. Temple University, 2008 WL 2952777 (3d Cir. Aug. 4, 2008) (invalidating college’s sexual harassment policy as overbroad, and noting that in loco parentis does not apply to college students); Dambrot v. Central Michigan University, 55 F.3d 1177 (6th Cir. 1995) (invalidating racial harassment policy); Iota Xi Chapter of Sigma Chi Fraternity v. George Mason Univ., 993 F.2d 386 (4th Cir. 1993) (invalidating discipline for sexually and racially-offensive skit).

      Even in the K-12 setting, where school officials enjoy more authority, the First Amendment still prevents them from regulating the way a parent could. See, e.g., Saxe v. State College Area School District, 240 F.3d 200 (3d Cir. 2001)(invalidating overbroad harassment policy).

      And state law often goes beyond the First Amendment in preventing discipline for vulgar or indecent speech that a parent might well punish, putting it at odds with in loco parentis. See, e.g., Pyle v. School Committee of South Hadley, 423 Mass. 283, 667 N.E.2d 869 (1996) (state law in Fitzgerald’s home state of Massachusetts shielded students from discipline for wearing suggestive and offensive T-shirts, even though were not protected by the First Amendment); cf. Smith v. Novato Unified School District, 150 Cal. App. 4th 1439 (2007) (holding that California law protects student speech that is not protected by the federal First Amendment).

      Since school officials don’t enjoy the “in loco parentis” authority they once may have enjoyed, it seems very odd to try and hold them liable on that basis (even assuming that the right to discipline students somehow makes overworked school officials liable for misconduct by unruly students in breach of school rules).

      Finally, even if school officials DID have a constitutional duty to protect, it would not help plaintiff in Fitzgerald v. Barnstable School Committee. That’s because the standard that applies in the rare case where there is a duty to protect under the Constitution is the same as the one that applies under Title IX: deliberate indifference. See Farmer v. Brennan, 511 U.S. 825, 834 (1994) (even when the Constitution protects someone, it only creates liability for government officials who are “deliberately indifferent” to violations).

      And plaintiff can’t meet that standard. The First Circuit Court of Appeals, in rejecting plaintiff Fitgerald’s Title IX claim, ruled that plaintiff had failed to prove deliberate indifference.

      The finding is equally fatal to any constitutional claim that the plaintiff might otherwise have had, even if such a constitutional claim existed as a theoretical matter.

    3. Bob Fitzgerald says:

      Mr Bader, you conveniently left out of your response the impetus for my comparison of "in loco parentis" – you claimed Fitzgerald v. Barnstable could lead to governmental regulation of dinner parties in your initial attack on my daughter's case. I was merely clarifying the difference between the lack of a governmental role in voluntary attendance at a private dinner party in a private residence, as opposed to direct governmental control of a state run school with mandatory attendance. "In loco parentis" is not the underlying basis for our dispute with the Barnstable school system, the underlying basis is the difference between a response under Title IX and a response under Sec 1983. Clearly, the Courts have shown that a Title IX response does not have to meet the burden of success in order to absolve a school system of liability under Title IX. Clear also is the fact that school systems have routinely used this lack of a correctional function in Title IX, to claim adherence to Title IX without actually fixing their problems. For the superintendent in this case to have directly stated in his deposition that the seating policy of placing known bullies directly behind kindergartners on an unmonitored school bus was perfectly fine because the only child that complained was no longer riding the bus, tells volumes about the school's concerns regarding adherence to Title IX, and the Courts' inability to force compliance. When it comes to rogue school administrators running roughshod over the rights of students, preclusion of Sec 1983 unwittingly denies those students access to the full gambit of legal remedies needed to reign in administrative bullies. Mr Bader, you claim that the standard of indifference under Title IX and Sec 1983 are the same and therefore there is no point in allowing a discussion of the preclusion issue, given that the conclusion would be the same. Our position is that the standard of indifference between a statue (that requires only a response) and a constitutional right (which requires something more) creates enough of a distinction for the Court to issue a clarification. And hopefully that clarification will result in school administrators taking their responsibilities under Title IX more seriously. The unfortunate facts of this case warrant further study in order to fully understand the need to establish a clear definition of "deliberate indifference" when drafting a response (Title IX's requirement), as opposed to "deliberate indifference" in implementing a correction (Sec 1983's requirement).

      Bob Fitzgerald

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