Congressional bill would increase wide range of school liabilities
U.S. Sen. Edward M. Kennedy (D-MA) and U.S. Rep. John Lewis (D-GA) have introduced the proposed Civil Rights Act of 2008, which, among other provisions, seeks to undo the liability standard set in Gebser v. Lago Vista Independent School District and Davis v. Monroe County Board of Education. “Our legislation will strengthen existing protections in cases where the courts have let us down by narrowing individuals’ right to demand accountability for discrimination,” Sen. Kennedy said. The proposed legislation seeks to modify the effects of those two landmark U.S. Supreme Court decisions to give students greater legal protection from sexual harassment. The rulings held that school districts may be held liable for the sexual harassment of students by school employees or by other students. However, the Court’s rulings set a high bar for allowing victims to recover damages under Title IX of the Education Amendments of 1972, which bars sex discrimination in federally funded educational programs. Gebser, a 1998 decision, held that a student may not recover damages unless a district official in a position to take corrective action was aware of a school employee’s harassing behavior and was deliberately indifferent to it. Davis, decided in 1999, held that Title IX covered student-on-student sexual harassment. However, the Court ruled that the harassment had to be “severe, pervasive, and objectively offensive” for victims to be able to recover damages. Fatima Goss Graves, a senior counsel of the National Women’s Law Center, says in a paper released last week that the Gebser-Davis standard “has erected a series of hurdles that have grossly undermined Title IX’s protections.” In the paper for the American Constitution Society, Ms. Graves backs the proposed civil rights bill, saying it give students the same protection from harassment that employees receive under Title VII of the Civil Rights Act of 1964. Naomi E. Gittins, the deputy general counsel of the National School Boards Association, argues the bill is worrisome because it would appear to impose a standard of strict liability on districts for harassment that officials didn’t even know about. “It would definitely make it easier for plaintiffs to win cases against school districts,” said Ms. Gittins. The NSBA has not yet taken a formal stand on the bill. The bill has been referred to committees in both the Senate and the House.
Source: Education Week, 2/6/08, By Mark Walsh
[Editor’s Note: Ms. Graves’s paper, a press release summarizing the proposed legislation (S. 2554 and H.R. 2159), and the text of the measure are below. Both Gebser and Davis expanded, rather than narrowed, Title IX liability, over the dissents of the more conservative justices. Links to the decisions are below. In Davis, the more liberal justices who interpreted Title IX to impose liability for student-on-student harassment acknowledged NSBA’s amicus brief when they admonished lower courts to “bear in mind that schools are unlike the adult workplace and that children may regularly interact in a manner that would be unacceptable among adults.”
Among other things, the legislation also would (1) undo the U.S. Supreme Court’s ruling in Arlington Central School District Board of Education v. Murphy, 548 U.S. 291 (2006), by revising many federal “fee-shifting” statutes, including the Individuals with Disabilities Education Act (IDEA), to allow a prevailing plaintiff to have not only its attorney’s fees but its expert fees paid by the defendant; (2) adopt the “catalyst theory” that was rejected by the U.S. Supreme Court in Buckhannon Board & Care Home, Inc. v. West Virginia Department of Health & Human Resources, 532 U.S. 598 (2001), by defining a “prevailing party” under any federal fee-shifting provision as “a party whose pursuit of a nonfrivolous claim or defense was a catalyst for a voluntary or unilateral change in position by the opposing party that provides any significant part of the relief sought”; (3) undo the Supreme Court’s ruling in Smith v. Jackson, 544 U.S. 228 (2005), that the Age Discrimination in Employment Act (ADEA), unlike Title VII, does not invalidate an employer’s action that may happen to have a disparate impact on older employees if the action was based on “reasonable factors other than age”; (4) amend the Equal Pay Act to limit an employer’s "bona fide factor other than sex" defense; (5) provide that plaintiffs under the Fair Labor Standards Act's (FLSA) can obtain compensatory and punitive damages in addition to existing remedies; and (6) stipulate that a state’s receipt of federal funds constitutes a waiver of the state’s sovereign immunity against individual claims for monetary damages under various federal statutes.
For examples of a few cases illustrating how some of these issues play out in schools, see the Legal Clips summaries of (1) Arlington Central; (2) P.N. v. Seattle School District No. 1, 474 F.3d 1165 (9th Cir. 2007), a special education decision that invoked the Supreme Court’s warning in Buckhannon that under the “catalyst theory,” courts “could award fees and costs to a party who filed a potentially meritless suit if the other party agreed to some changes merely to avoid the litigation”; (3) Smith v. Jackson; (4) Morris-Hayes v. Board of Education of Chester Union Free School District, an unpublished Second Circuit ruling that an school employee could not bring her own lawsuit alleging a USERRA violation and that the school board was entitled to Eleventh Amendment sovereign immunity against the lawsuit as an arm of the state. The Supreme Court also has granted review in a case, Meacham v. Knolls Atomic Power Laboratory, on the question of whether the employer or employee bears the burden of persuasion as to the ADEA “reasonable factors other than age” defense. The legislation would eliminate the defense altogether.]
Graves paper on sexual harassment
Gebser v. Lago Vista ISD
Davis v. Monroe County Bd. of Educ.
NSBA brief in Davis v. Monroe County Bd. of Educ.
Kennedy press release
Text of proposed Civil Rights Act of 2008
NSBA School Law pages on Arlington Central Sch. Dist. Bd. of Educ. v. Murphy
NSBA School Law pages on Smith v. Jackson
NSBA School Law pages on P.N. v. Seattle Sch. Dist. No. 1
NSBA School Law pages on Morris-Hayes v. Bd. of Educ. of Chester Union Free Sch. Dist.