by Dina Lassow, Senior Counsel
National Women’s Law Center
In the term that just ended, women dodged the bullet in several Supreme Court cases involving their rights as employees. But, the fight to preserve women’s rights is far from over. Among other cases you will be hearing about, the Court recently agreed to review a case next term that could limit the constitutional rights of women and girls who face discrimination in education.
You have heard a lot about Title IX here – the law that bars discrimination in schools that receive federal funds. Students and teachers in public schools and universities also have rights under the equal protection clause of the Fourteenth Amendment to the U.S. Constitution, which prohibits treating the sexes differently unless the school has – in plain English - an awfully good reason for doing so and does it in a careful and considered way.
In the case the Court will hear, Fitzgerald v. Barnstable School Committee, a kindergarten girl claimed that a third grade boy regularly made her pull up her skirt, pull down her underwear and spread her legs on the school bus. Because of the extremely difficult standard for proving sexual harassment under Title IX, the lower courts did not even let her case go to trial. The Court of Appeals for the First Circuit also said that Congress intended the remedies under Title IX to be the only ones she could pursue, and therefore upheld the dismissal of her claims under the Constitution.
Other Courts of Appeals have reached the opposite conclusion – and held that Title IX does not preclude constitutional claims. The only question that was raised before the Supreme Court is which of the Circuits got it right. The National Women’s Law Center will do all it can to help persuade the Court to safeguard women’s and girls’ rights by allowing them to pursue remedies under both Title IX and the Constitution. In some circumstances, the Constitution provides important protections and remedies that are not available under Title IX. And even if there is a little overlap in some situations, that’s never a bad thing in fighting against discrimination.