Fitzgerald v. Barnstable Revisited

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:

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.

http://www.aces.org/teachers/workshops/ – 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 – http://www.sde.ct.gov/sde/bullyingandharassment