Drew, Margaret

Hodge, Joanne

Horowitz, Lisa

Kaufman, Beth

Nagel, Mary

English

UIC Law Open Access Repository

UIC School of Law UIC Law Open Access Repository Court Documents and Proposed Legislation 2008 Brief of the National Association of Women Lawyers as Amicus Curiae in Support of Petitioners, Fitzgerald v. Barnstable Sch. Comm., 555 U.S. 246 (Supreme Court of the United States 2009) (No. 07-1125) Lisa Horowitz Margaret Drew Beth Kaufman Mary Nagel John Marshall Law School Joanne Hodge John Marshall Law School Follow this and additional works at: https://repository.law.uic.edu/courtdocs  Part of the Law Commons Recommended Citation Brief of the National Association of Women Lawyers as Amicus Curiae in Support of Petitioners, Fitzgerald v. Barnstable Sch. Comm., 555 U.S. 246 (Supreme Court of the United States 2011) (No. 07-1125) https://repository.law.uic.edu/courtdocs/97 This Brief is brought to you for free and open access by UIC Law Open Access Repository. It has been accepted for inclusion in Court Documents and Proposed Legislation by an authorized administrator of UIC Law Open Access Repository. For more information, please contact repository@jmls.edu. No. 07-1125LINDA AND ROBERT FITZGERALD,Petitioners,VoBARNSTABLE SCHOOL COMMITTEEAND RUSSELL DEVER,Respondents.On Writ of Certiorari to theUnited States Court of Appealsfor the First CircuitBRIEF OF THE NATIONAL ASSOCIATION OFWOMEN LAWYERS AS AMICUS CURIAEIN SUPPORT OF PETITIONERSAugust 29, 2008LISA HOROWITZPresidentMARGARET DREWChair Amicus CommitteeBETH L. KAUFMAN*Executive BoardMARY THERESE NAGELJOANNE SIMBOLI HODGENATIONAL ASSOCIATIONOF WOMEN LAWYERSAmerican Bar Center321 North Clark StreetChicago, IL 60654(312) 988-6186*Counsel of RecordBlank PageQUESTION PRESENTEDWhether a Section 1983 claim should be allowedalong with a Title IX action where that would beconsistent with this Court’s rulings on concurrentstatutory discrimination claims.iiTABLE OF CONTENTSQUESTION PRESENTED .....................iTABLE OF CONTENTS .....................iiTABLE OF AUTHORITIES ...................iiiINTEREST OF AMICUS CURIAE .............SUMMARY OF ARGUMENT .................2ARGUMENT ............................... 3ALLOWING A SECTION    1983 ACTIONALONG WITH A TITLE IX ACTION WOULDBE CONSISTENT WITH THIS COURT’SRULINGS ON CONCURRENT STATUTORYDISCRIMINATION CLAIMS ..............3CONCLUSION ............................ 10111TABLE OF AUTHORITIESCasesAnnis v. County of Westchester, N.Y., 36 F.3d 251(2d Cir. 1994) ........................... 8CBOCS West, Inc. v. Humphries, 128 S. Ct. 1951(2008) ............................... 3, 4Davis v. Passman, 442 U.S. 228 (1979) .........8Frontiero v. Richardson, 411 U.S. 677 (1973) .....9Gomez-Perez v. Potter, 128 S. Ct. 1931 (2008) ... 5, 6Reed v. Reed, 404 U.S. 71 (1971) ...............9United States v. Virginia, 518 U.S. 515 (1996) ....9StatutesTitle IX of the Education Amendments of 1972, 20U.S.C. 1681(a) ....................... passimAge Discrimination in Employment Act of 1967, 29U.S.C. § 633(a)(a) ........................ 6Title VII of the Civil Rights Act of 1964, 42 U.S.C.§ 2000e .......................... 3, 4, 5, 842 U.S.C. § 1981 ........................ 3, 4, 542 U.S.C. § 1983 ...................... 2, 3, 5, 8Blank PageINTEREST OF AMICUS CURIAE1The National Association of Women Lawyers("NAWL") is the oldest women’s bar association in thecountry. It was founded in 1899, long before most barassociations admitted women. Only 30 years before, in1869, Arabella Babb Mansfield had become the firstwoman lawyer admitted to the (Iowa) bar. Only 20years before, in 1879, Selva A. Lockwood was the firstwoman lawyer admitted to the bar of the SupremeCourt. In 1912, NAWL campaigned for women’s votingrights during the suffrage movement and six years latersought the right for women to serve on juries. In 1957,NAWL President Grace B. Doering became the firstwoman elected to the ABA Assembly; in 1961 Sarah T.Hughes became the first woman judge on the UnitedStates District Court; and in 1981 Sandra DayO’Connor became the first woman to serve as anAssociate Justice of this Court. Today, NAWL is anational voluntary organization with members in all 50states, devoted to the interests of women lawyers, aswell as all women. Through its members, committees,and the Women Lawyers Journal, it provides acollective voice in the bar, courts, Congress, andworkplace. We stand committed to ensuring access tothe courts for girls and women seeking protection fromgender bias and sexual harassment.1Letters of consent are on file with the Clerk. No counselfor either party has authored any portion of this brief, nor has anyperson or entity, other than amie~zs and its counsel, made amonetary contribution to the preparation or submission of thisbrief.SUMMARY OF ARGUMENTThe question posed by this case is of enormousimportance. It goes directly to the ability of girls andwomen to press for equal educational opportunity andfreedom from harassment in the schools. NAWL wasnot a party to the litigation below and does not make ajudgment on the propriety of the grant of summaryjudgment on the Title IX claim. Rather, it files thisbrief to urge the Court to reject the bright line rule ofthe First Circuit, which would preclude women andgirls from bringing equal protection claims in the publicschool setting and instead force them to press theirconstitutional claims under the much higher and moredifficult standard of deliberate indifference. This Court,specifically through its decisions of last term, hasreiterated its principle that laws against discrimination,especially in the employment setting, should be foughton several fronts. It has extended the number oftraditional causes of action that arise from the samefacts surrounding the claimed discriminatory behavior- not limited them, as the First Circuit has done. Inkeeping with the Court’s direction, girls and womenshould not be left to challenge a school, its employees,and its staff on claims of discrimination with only onetheory. To the contrary, they should be free to maketheir challenges on several bases. For all these reasons,NAWL asks this Court to reverse the decision below asto the preclusion issue and allow constitutional claimsto go forward under both Title IX and Section 1983.3ARGUMENTALLOWING A SECTION 1983 ACTION ALONGWITH A TITLE IX ACTION WOULD BECONSISTENT WITH THIS COURT’S RULINGSON CONCURRENT STATUTORYDISCRIMINATION CLAIMSRecently, this Court issued two decisions thatreaffirmed the broad remedial scope of statutorydiscrimination statutes. Following that same correctanalysis, the Court should similarly affirm the need forallowing constitutional clams under Section 1983 aswell as Title IX.CBOCS v. HumphriesFirst, in CBOCS West Inc. v. Humphries, 128 S. Ct.1951 (2008), the Court held that 42 U.S.C. § 1981afforded a plaintiff the opportunity to raise claims ofretaliation in his claim of racial discrimination. There,Humphries, an African-American Assistant Manager,claimed that he was dismissed because of his race andhis complaints that another black employee had beendischarged for race-based reasons. Id. at 1954. Hebrought an action under Title VII as well as 42 U.S.C.§ 1981. Id.The company there argued that the language of thetext of Section 1981 does not expressly refer to theclaim of an individual who suffers retaliation becausehe has tried to help a different individual, sufferingdirect racial discrimination, secure his Section 1981rights. Id. Therefore, it argued, the statute simply"does not provide for a cause of action based onretaliation. " Id. This Court stated that "[w]e agreewith CBOCS that the statute’s language does notexpressly refer" to such a claim, but cautioned "thatfact alone is not sufficient to carry the day." Id. Afterall, "the Court has recently read another broadlyworded civil rights statute, namely, Title IX [citationomitted] as including an antiretaliation remedy." Id. Asfor the company’s argument that Congress amendedSection 1981 but did not include an explicitantiretaliation provision or the word "retaliation" inthe new statutory language, the Court found that"there was no need for Congress to" do so. Id. That isbecause "[n]othing in the statute’s text or in thesurrounding circumstances suggests any congressionaleffort to supercede" its previous interpretation. Id.In response to the company’s argument that TitleVII already contains procedural and administrativerequirements and "overlaps" Section 1981, this Courtstated:Regardless, we have previously acknowledgeda "necessary overlap" between Title VII and §1981. [Citation omitted.] We have added thatthe "remedies available under Title VII andunder § 1981, although related, and althoughdirected to most of the same ends, are separate,distinct, and independent." [Citation omitted.]We have pointed out that Title VII providesimportant administrative remedies and otherbenefits that § 1981 lacks. [Citation omitted.]And we have concluded that "Title VII wasdesigned to supplement, rather than supplant,existing laws and institutions relating toemployment discrimination."     [Citationomitted.] In a word, we have previously heldthat the "overlap" reflects congressional design.[Citation omitted.] We have no reason to reacha different conclusion in this case.Id. (emphasis added).The same can be said for claims under Title IX andSection 1983. Although there may exist an "overlap" orrelation between both causes of action, their "ends" areseparate in how each is prosecuted, the evidencerequired for each such cause of action, and the partiesaffected by each cause of action.Gomez-Perez v. PotterSimilarly, in Gomez-Perez v. Potter, 128 S. Ct. 1931,1943 (2008), this Court recognized a retaliation claimunder the Age Discrimination in Employment Act of1967 as amended ("ADEA"), 29 U.S.C. § 633a(a). Again,it upheld additional theories to combat illegaldiscrimination, holding that a federal employee couldassert a claim under the federal-sector provision of theADEA. Id. at 1935. In that case, a 45-year old womanbrought suit against her federal employer, initiallyclaiming age discrimination and then claiming that heremployer retaliated against her for bringing the prioraction. Id. The employer moved for summaryjudgment, which the district court granted. Id. TheFirst Circuit affirmed the order but on the grounds that§ 633a(a) of the ADEA did not allow recovery forretaliation claims. Id. at 1935-36.In discussing whether the federal employer hadwaived sovereign immunity, this Court stated thefollowing:[The employer] is of course correct that "[a]waiver of the Federal Government’s sovereignimmunity must be unequivocally expressed instatutory text" and "will be strictly construed,in terms of its scope, in favor of the sovereign."Lane v. Pena, 518 U.S. 187, 192 (1996). Butthis rule of construction is satisfied here.Subsection (c) of § 633a unequivocally waivessovereign immunity for a claim brought by"[a]ny person aggrieved" to remedy a violationof § 633a. Unlike § 633a(c), § 633a(a) (2000 ed.,Supp. V) is not a waiver of sovereign immunity;it is a substantive provision outlawing"discrimination." That the waiver in § 633a(c)applies to § 633a(a) claims does not mean that§ 633a(a) must surmount the same high hurdleas § 633a(c). See United States v. WhiteMountain Apache Tribe, 537 U.S. 465,472-473(2003) (where one statutory provisionunequivocally provides for a waiver ofsovereign immunity to enforce a separatestatutory provision, that latter provision "’neednot.., be construed in the manner appropriateto waivers of sovereign immunity’" (quotingUnited States v. Mitchell, 463 U.S. 206, 218-219(1983))). But in any event, even if § 633a(a)must be construed in the same manner as §633a(c), we hold, for the reasons previouslyexplained, that § 633a(a) prohibits retaliationwith the requisite clarity.Id. at 1942-43. Once again, the Court did not force theplaintiff to overcome a high hurdle in order to maintainher cause of action for retaliation.In these two cases, the Court has reaffirmed acommitment to promoting varied causes of action toalleviate discriminatory practices. It has not limitedthe means by which these ends are sought. To thecontrary, it has expanded the means to accomplishthese ends and read the anti-discrimination statutesexpansively, so as to encompass those causes of actionthat would logically ensue from claims ofdiscrimination. In contrast, the First Circuit inFitzgerald has taken precisely the opposite tack, i.e.,limited the number of ways in which to recover fordiscrimination.The Court has also made clear that a public sectorplaintiff claiming discrimination based on gender canbring a Title VII claim, a § 1983 claim (allegingviolations of equal protection), or both. See Davis v.Passman, 442 U.S. 228, 234-35 (1979); Annis v. Countyof Westchester, 36 F.3d 251, 254-55 (2d Cir. 1994)(noting "every circuit that has considered this issue hasheld that Title VII is not the exclusive remedy fordiscrimination against state or municipal employers,where those claims derive from violations ofConstitutional rights."). Likewise, a plaintiff whoclaims gender discrimination in the public schoolsetting deserves the same opportunities. Assumingthat she can prove independent bases for a Title IXclaim as well as a § 1983 claim, she should be able to goforth with both or either causes of action. To hold9otherwise would defeat the purpose behind bothstatutes and go against the reasoning this Court haswisely followed in other discrimination cases.In conclusion, as the Court acknowledged ageneration ago, "our Nation has had a long andunfortunate history of sex discrimination." Frontiero v.Richardson, 411 U.S. 677, 684 (1973). Through acentury plus three decades and more of that history,women did not count among voters composing "We thePeople"; not until 1920 did women gain a constitutionalright to the franchise. Id. at 685. And for half a centurythereafter, "it remained the prevailing doctrine thatgovernment, both federal and state, could withholdfrom women opportunities accorded men so long as any’basis in reason’ could be conceived for thediscrimination." United States v. Virginia, 518 U.S.515, 532 (1996). It was not until 1971 that, for the firsttime in our history, this Court ruled in favor of awoman who complained that her state had denied herthe equal protection of its laws. Reed v. Reed, 404 U.S.71, 73 (1971). Since Reed, the Court has repeatedlyrecognized that neither federal nor state government,nor this nation’s schools, act compatibly with the equalprotection principle when they deny "to women, simplybecause they are women, full citizenship stature --equal opportunity to aspire, achieve, participate in andcontribute to society based on their individual talentsand capacities." United States v. Virginia, 518 U.S. at532.10CONCLUSIONFor the foregoing reasons, the decision of the courtof appeals should be reversed as to the preclusion issue.Respectfully submitted,LISA HOROWITZPresidentMARGARET DREWChair Amicus CommitteeBETH L. KAUFMAN*Executive BoardMARY THERESE NAGELJOANNE SIMBOLI HODGENATIONAL ASSOCIATIONOF WOMEN LAWYERSAmerican Bar Center321 North Clark StreetChicago, IL 60654(312) 988-6186*Counsel of Record

Brief of the National Association of Women Lawyers as Amicus Curiae in Support of Petitioners, Fitzgerald v. Barnstable Sch. Comm., 555 U.S. 246 (Supreme Court of the United States 2009) (No. 07-1125)

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Brief of the National Association of Women Lawyers as Amicus Curiae in Support of Petitioners, Fitzgerald v. Barnstable Sch. Comm., 555 U.S. 246 (Supreme Court of the United States 2009) (No. 07-1125)

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