At the ACS Blog Dina Lassow writes:
The Fitzgerald case began in 2001, when Jackie, who was then in kindergarten, told her parents that one of the boys on the school bus was forcing her to lift her skirt, pull down her underpants and spread her legs whenever she wore a skirt. Her parents immediately reported her complaint to the principal, but they were not satisfied with the investigation undertaken or the solution proposed, which was to separate the kindergartners from the other students by several rows of seats or to move Jackie â€“ not the third grader who she said was harassing her â€“ to another bus.
Jackie’s parents filed suit against the School Committee and the Superintendent under both Title IX and Â§ 1983. (Individuals can only be sued under Â§ 1983.) The district court dismissed their Â§ 1983 claim, finding that it was preempted, and the case proceeded against the School Committee under Title IX. However, the Supreme Court has imposed a very difficult standard for students who are sexually harassed to recover damages under Title IX: it is harder for a student who has been harassed to prevail than for an employee who sues under Title VII of the Civil Rights Act of 1964. The First Circuit upheld the district court’s ruling on summary judgment that plaintiffs had not met that high standard, and also upheld the preemption ruling, with the”coda”that individuals could be sued under Â§ 1983 for wrongdoing independent of the Title IX claim. The Fitzgeralds brought only the preemption issue to the Supreme Court.
Fitzgerald v. Barnstable School Committee was argued before the Supreme Court on December 2, 2008. Pleadings and related documents are available here. The Title IX Blog adds useful links and analysis.