Fitzgerald v. Barnstable Revisited

From ATIXA –

ATIXA is the Association of Title IX Administrators [in higher education]. This is from their newsletter.

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The last week in January was the four-year anniversary of a “gamechanging” Title IX decision by the United States Supreme Court: Fitzgerald v. Barnstable School Committee (129 S.Ct. 788 (2009)).  The Court made a key determination that has the potential to personally impact administrators nationwide.

Without getting into the legal nitty-gritty, the Court’s decision makes it possible to use a long-standing civil rights statute, 42 US § 1983, to hold administrators personally liable for their role in an incident of alleged sexual harassment/discrimination (including retaliation, deliberately indifferent response etc.). In other words, the Court held that Title IX is not the exclusive mechanism for addressing gender discrimination, nor a substitute for a §1983 action pertaining to sex discrimination cases.  Complainants could use both Title IX and 1983 concurrently.

What this means is that administrators at state institutions [public schools] and those acting under the color of state law, can be personally sued and responsible for paying damages, injunctive relief and even attorney’s fees. Know that if you are acting within the scope of your employment and following your institution’s policies and procedures, it is very likely your institution will help defend you, should you be named in a §1983 lawsuit.

We do not share this tip to frighten, but to inform and to remind each of us of the importance of following fair, equitable and prompt procedures.

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What this means in practice includes the following:


    1. All certified & non-certified staff should have a training in Title IX and all other state & federal civil rights laws, with an annual refresher. Do not forget Title VI (race, color, national origin) and PA 11-55 (gender identity).

  • All students should be educated in laws and school policies on discrimination and school conduct – particularly Title IX.
  • Policies as well as grievance procedures must be in the student and employee handbook and on your website.
  • Parents/Guardians should be made aware of policies and procedures.
  • School Climate Coordinators and Specialists, in particular,  should be trained in state/federal civil rights laws and have an understanding of what conduct constitutes criminal acts – and they should be trained on how to conduct investigations. Please note that a bill has been presented before the CT state legislature on this topic.
    HB 6274… AN ACT CONCERNING TRAINING FOR THE INVESTIGATION AND MANAGEMENT OF CLAIMS OF SCHOOL BULLYING. To provide training for those persons responsible for investigating and managing claims of school bullying.


We are running 4 workshops on Conducting Investigations & Report Writing – March 25, 26, April 1 or April 2.  – please share widely.


A reminder to familiarize yourself thoroughly with this website – the PowerPoint for Title IX and Investigation training is on the site.

Bullying and Harassment –


Details Emerge in Student’s Battle Against Carp High Mascot

 Note: Reminder about Section 1983 liability

Photo by Paul Wellman

Fighting Scared

Details Emerge in Student’s Battle Against Carp High Mascot

By Drew Mackie

Thursday, November 12, 2009

The uproar that resulted from the effort to eliminate Carpinteria High School’s mascot, the Warrior, made headlines throughout the county, with students, alumni, and school officials alike debating the appropriateness of a symbol that some community members found offensive to Native Americans. Foremost among those objecting was Eli Cordero, a student of Native American descent who presented his feelings about the mascot at a March 2008 school board meeting. While resulting news stories gave voice to many who thought the historic value of the Warrior should supersede the objections, scant details about Cordero’s day-to-day life at school emerged. This changed on October 30, when the U.S. Department of Education’s Office for Civil Rights (OCR) released a letter in response to a complaint by Cordero’s mother, Charisse Matisz-Cordero, that the Carpinteria School District did not adequately respond to retaliation by fellow students against her son. The letter dissects how school officials responded to alleged discrimination, not faulting the school for the way they handled the situation, but nonetheless pointing out how it could have done so differently.

Paul Wellman

Eli Cordero

Though Cordero no longer attends a district school, his remaining time at Carp High saw two death threats—one in the form of a student remarking that he wanted to kill Cordero and the other in form of the text “I hope u die” scrawled on a play script Cordero had left in the lunchroom. The OCR report notes that school officials contacted law enforcement in both incidents. In the former case, an interrogation revealed that the student who made the threat did not know who Cordero was. In the latter, law and school officials together concluded that it would be “difficult, if not impossible, to identify the person who made the threat,” according to the report. When OCR staff asked whether officials had reminded the student body that such threats were unacceptable, they allegedly responded that they “did not want to call further attention to the student.” The report continues, “From the point of view of [Cordero] and his family, all they knew was that the school told them nothing could be done.”

The report also notes that Cordero was taunted regularly by his fellow students, some of whom would allegedly look him in the eye and spout slogans like “Warrior spirit never dies” and “Go Warriors.”

The report also notes that Cordero was taunted regularly by his fellow students, some of whom would allegedly look him in the eye and spout slogans like “Warrior spirit never dies” and “Go Warriors.” Cordero never reported incidents, allegedly feeling “there was no point in reporting the daily encounters because he did not think the school would do anything about them.” Though the report mentions no policy violations by the School District, it does imply a breakdown in communication. For example, though district officials did tell campus security to keep an eye on Cordero, the student was unaware of this precaution.

The district must now meet three OCR mandates. First, they must draft a “written guidance” to school staff communicating district policies and precautions included in the Civil Rights Act that protect students from discriminatory or retaliatory actions. They must train school staff in how to enforce these rules and punish offenders. And, thirdly, they must post on the district’s Web site a notice of students’ and parents’ right to “assert or protect the rights of individuals free from discrimination on the basis of race, national origin, sex, or disability.”

“I’m not going to comment except to say that we made the best judgments at the time … and that involves some judgment calls that had [Cordero’s] safety in mind.”

“We did everything we could to protect the students,” said District Superintendent Paul Cordeiro of the report. Regarding the communication problems that the report hints at, Cordeiro said, “I’m not going to comment except to say that we made the best judgments at the time … and that involves some judgment calls that had [Cordero’s] safety in mind.” Speaking as a representative for United Carpinterians, an organization created to foster education and understanding of Native American issues, Toni Stuart offered this comment on the OCR letter: “The kind of intimidation and threat that created the hostile environment for this student can affect students who are not Native American but who are ‘different’ in some other way. … I would hope that the positive steps the district is taking will help to create an environment in our schools in which all students feel safe.”


Fitzgerald v. Barnstable School Committee- Supreme Court Allows Second Avenue for School Sex Harassment Suit –


U.S.Supreme Court

Supreme Court Allows Second Avenue for School Sex Harassment Suit

Fitzgerald v. Barnstable School Committee.

Posted 1 hour, 24 minutes ago  Jan 21, 2009
By Debra Cassens Weiss

The U.S. Supreme Court has ruled that Title IX is not the exclusive remedy in school sex harassment suits.

The unanimous opinion said suits may also be filed under Section 1983, the broader civil rights law, the Associated Press reports. The court ruled today in a suit brought by parents of a girl who claims she was sexually harassed on the school bus when she was 5 years old.

Lisa and Robert Fitzgerald had claimed an 8-year-old boy on the bus would force their daughter to lift her dress and pull down her underwear. Rather than taking action against the boy, the school offered to put the girl on a different bus, the suit alleges.

Justice Samuel A. Alito Jr. wrote the opinion (PDF posted by SCOTUSblog). He said Title IX, enacted in 1972, was not intended to preclude a Section 1983 suit, partly because the protections offered by the two laws are different.

Alito noted that Section 1983 suits may be brought against individuals, but Title IX has been interpreted as not authorizing suits against individual school teachers and schools officials. Standards of liability also differ under the laws, and Title IX contains several exemptions, he said.

The case is Fitzgerald v. Barnstable School Committee.


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