Title IX: pay for better girls sports or pay their attorneys

Out of California comes a cautionary tale about fighting lawsuits and gender equity.  According to this article in the San Diego Times, the now cash-strapped school district is having troubles paying the girls' attorneys' fees. 

Many of the familiar federal mandate and remedial laws, including Title IX (as well as Title VI, IDEA, Section 504 and others) provide for fee shifting.  That is, if the school losses some part of the case, the plaintiffs are entitled to a "prevailing party" attorney fee.  Often, the plaintiffs only need to prevail on some part of their claims, not all claims, in order to recoup attorney fees.  This risk is one that schools need to consider when assessing their litigation strategies and choices.

So the bad news for the school district is that it not only is paying for a new softball field (which in fairness is something that likely should have been done before), but also the attorneys.  The good news is that the girls are reported to be thrilled with their new field. 

TItle IX, gender discrimination, and money damages

The question of money damages under various anti-discrimination / inclusion education statutes seems to be a hot subject recently. The recent en banc Third Circuit Court decision in A.W. v. The Jersey City Public Schools, 341 F.3d 234 (3d Cir. 2007), discussed in another entry, ruled that there is no cause of action under Section 1983 for money damages based on a violation of IDEA and or Section 504.  

A recent federal district court case from Puerto Rico, Frechel Rodriguez v. Puerto Rico Dept. of Educ., 478 F. Supp. 2d 191 (D. Puerto Rico 2007) (unfortunately, I have not found a public domain copy), reached a similar outcome in a Title IX-based claim of gender discrimination. Specifically, the issue was whether a plaintiff has a right of action under § 1983 to redress violations of Title IX.  According to the case, the Sixth and Eighth Circuits have held such a right exists, but the Second, Third, and Seventh Circuits have ruled such a § 1983 claim is barred under the Sea Clammers doctrine announced in Middlesex County Sewerage Authority v. National Sea Clammers Association, 453 U.S. 1 (1981).  The Frechel Rodriguez decision dismissed the Title IX-based § 1983 claims.

So what does this trial court case from Puerto Rico mean for us? 

While the Frechel Rodriguez case is statistically not likely to become a Supreme Court case (indeed, it was not appealed), it clearly demonstrates an area in which the federal courts of appeals disagree. 

Interested parties should look ahead for such “splits among the circuits” in order to raise and preserve possible appeal issues. Disagreements among the courts is a factor the federal appeal courts and the Supreme Court consider when reviewing federal statutory claims or constitutional rights. Not surprisingly, if all the cases are going one way, the chances of convincing the court to go the other way on appeal are not good.  In contrast, a split gives the case and the issue juridical life.

In Title IX actions, litigants need to be cognizant of the “split of authority” highlighted in Frechel Rodriguez when strategizing about their cases.