Feminist Law Professors

The ACSBlog has a good review of the pregnancy discrimination case that the Supreme Court will hear later this morning.   As laid out in the summary, the issue is too similar to Ledbetter v. Goodyear Tire & Rubber Co. to have much optimism that the Court will do anything other than say that the plaintiffs have filed outside the statute of limitations.   It’s too bad this case is being heard before the change in administration, as a strong brief from the Obama administration on behalf of the plaintiffs might have helped (the Bush administration, of course, supports AT&T).   Although probably not, given how recent Ledbetter is and how conservative the Court is on these issues of access to the courts.

The Supreme Court’s decision last year in Ledbetter v. Goodyear Tire & Rubber Co. – holding that employers become immune from pay discrimination claims 180 days after an initial payroll decision – became a reviled symbol of the Court’s rightward shift under Chief Justice Roberts. In Lily Ledbetter’s remarkable appearances on Capitol Hill, on the campaign trail, and at the Democratic National Convention, the 5-4 decision represented the Court’s ideological rigidity and indifference to the real-world struggles of women and minorities in the workforce.  Yet even as Ledbetter faces the likelihood of being overturned by the incoming Congress, AT&T and the Bush Administration are asking the high court to extend its erosion of civil rights laws even further in a case called AT&T v. Hulteen.

The plaintiffs are Nora Hulteen and three other employees who received reduced retirement benefits because of pregnancy leave they took in the 1960s and early 1970s. Along with other major employers, AT&T changed the way it calculated service credit for pregnancy leave in 1979 following the enactment of the Pregnancy Discrimination Act, but continued to award benefits on a discriminatory basis to those who had taken leave previously. (The parties dispute whether pregnancy-based discrimination was already illegal before the PDA, but that’s not really central to the case.) The company is now set to argue before the Supreme Court on Wednesday that these women can’t sue because any discrimination occurred decades ago when they took pregnancy leave, not when they were awarded lesser retirement benefits.

Sound familiar? As in Ledbetter, the core issue in this case is whether the”discriminatory act”will be defined in a reductive, technical way (focusing on the recording of credits in a database decades ago) or a more pragmatic one (focusing on the award of a smaller pension). AT&T argues that the discrepancy in benefits today is a mere”effect”of past discrimination, just as Lily Ledbetter’s receipt of lesser paychecks than her male coworkers was deemed to be a mere”effect”of past decisions.

You can read the rest of the case review by following the link above.

– David S. Cohen

Yesterday, the Supreme Court heard oral argument in Fitzgerald v. Barnstable School Community.   I wrote about the case Monday, mentioning that I was going to DC for the arguments.   Unfortunately, because of the quality of the lawyering, the arguments were not very helpful in discerning the various Justices’ views on the case.   Unlike Adam Liptak in his review of the case for the New York Times, I don’t think yesterday’s arguments indicate that the parents of the harassed girl are going to win, albeit what he calls a likely “empty” victory.

The problem with the arguments, from both sides, was that neither attorney did a great job focusing the Justices on the issue of whether Title IX, the statute in the abstract, preempts an Equal Protection Clause claim, the constitutional provision in the abstract.   Instead, the attorneys were confusing the Justices by going back and forth between that issue and the issue of whether the facts of this particular case make out two different claims.   Justices Scalia and Stevens tried to focus the arguments by pointing out that the facts of this particular case are irrelevant and the Justices need to address the more general question.   However, much of the argument was focused on the more particular question as it relates to this case.   Justice Breyer even went so far as to suggest that the case be dismissed as improvidently granted because there was no way, having lost on the substance of the Title IX claim, that the parents could prevail on any Equal Protection Clause claim.

While that may be true given the facts of this case (the parents’ attorney argued otherwise, saying that they haven’t had discovery yet on the constitutional claim because it was dismissed so quickly), the Justices have to decide the abstract issue of whether Title IX preempts the Equal Protection Clause.   On that issue, there was not much enlightening discussion yesterday.   The lawyer for the schools seemed to argue against her case by saying that Title IX is broader than the Equal Protection Clause.   While I agree with that statement (and argued that exact point in a 2005 article), the fact that Title IX is broader means that it is not “virtually identical” to the constitutional claim.   And, under Supreme Court precedent, only when a statutory claim is “virtually identical” to the constitutional claim can the Court conclude that Congress intended to preempt the constitutional claim.

Despite the school board attorney’s admission, Justice Ginsburg had trouble seeing how Title IX was broader than the constitutional claim, and neither attorney really helped her understand that.   Moreover, Chief Justice Roberts and Justice Scalia focused, albeit in limited questioning, on the fact that Title IX’s cause of action is implied, not express, so the Court may have more space to limit plaintiffs’ remedies.   Several other Justices never spoke a word.

One issue that came up was whether there were any factual scenarios under which a plaintiff could lose a Title IX claim and win an Equal Protection Clause claim.   The attorney for the school board said there were none.   Justice Breyer clearly indicated that he wanted to hear from the attorney for the family on this point, but that attorney did not address the point on rebuttal.   The answer to the question is that there are such factual scenarios.   First and foremost, there are many exempted schools and policies from Title IX consideration that would be covered by the constitution (state military schools, state schools’ admissions policies, etc.)   But, if the question is about covered institutions and policies, then the answer is single-sex classrooms.   Title IX may not prohibit them, especially given Congress’s endorsement of single-sex schools in the No Child Left Behind Act and the interpreting agency’s recent approval of them, but the constitution may prohibit them.   There’s no definitive ruling on either of these points, but it’s entirely possible that Title IX may allow them while the constitution doesn’t.

Given that argument yesterday really didn’t give anything away, I still stand by my earlier prediction – the case will be decided 5-4 against the parents, with the Court limiting Title IX plaintiffs to Title IX claims alone.

–David S. Cohen

On Tuesday, the Supreme Court will hear arguments in Fitzgerald v. Barnstable School Committee.   The issue in the case is whether Title IX precludes a litigant from suing under the Equal Protection Clause as well.   Despite the fact that I think the answer to the question is no, I believe the Court will answer it yes.

The case arises out of student-on-student sexual harassment at an elementary school.   A female kindergartner at the school was repeatedly harassed by a male third grader who, whenever she wore a skirt, made her lift her skirt and then pull down her underwear or spread her legs while others watched.   The school and the girl’s parents couldn’t agree on a solution, so the parents began driving the girl to school.   Unfortunately, the harassment continued, so the parents sued under both the Equal Protection Clause (via Section 1983) and Title IX.   Both the district court and the First Circuit ruled that the parents could bring only a Title IX claim and not the Equal Protection Clause claim.

The standard the Supreme Court has developed in this type of case, from a 1984 case called Smith v. Robinson, is that the federal statute will preempt the constitutional claim if the statutory interest protected is”virtually identical”to the constitutional right and if”Congress intended the [independent statute] to be the exclusive avenue through which a plaintiff”may vindicate the right.   As I argued in a 2005 article, there is no way Title IX and the Equal Protection Clause can be considered “virtually identical.”   Most important, in several substantive respects, Title IX provides a broader cause of action than a constitutional claim.   For one obvious reason, Title IX became law when the Equal Protection still provided nothing more than rational basis review for sex discrimination claims; thus, Congress clearly intended it to provide more protection, and to be substantively different than, the Equal Protection Clause.   My article proceeded to develop a theoretical understanding of Title IX that is broader than Equal Protection Clause protections in several important ways.

On the flip side, in many procedural respects, Title IX has a more limited reach.   For instance, it reaches schools alone, not individuals and schools, as the Constitution does.   Thus, with so many differences, there is no way to conclude that Title IX and the Equal Protection Clause are “virtually identical” such that Congress intended Title IX to be the exclusive remedy for a plaintiff.

Despite these arguments, that I still believe are strong, I think the Court will probably rule in favor of the school here.   With the current make-up of the Court, Justice Kennedy is the swing vote in Title IX cases, and he has proven that he is hostile to procedural claims that are favorable to a Title IX plaintiff.   I predict a 5-4 ruling against the parents here.

The decision in this case will settle a circuit split on this issue.   It will also be one of the Court’s few recent discussions of the Equal Protection Clause as it relates to sex discrimination.   Over the past two decades, cases before the Court raising this issue have become rare, so even though this case deals with other issues, it will most likely be an important Equal Protection Clause case going forward.

Thanks to a colleague who is clerking for the Court this Term, I’m going to be at oral argument, so I’ll report back sometime later Tuesday or Wednesday about how it went.

– David S. Cohen