Few reporters showed up for the Supreme Court’s hearing of a sexual harassment case involving a kindergartner. But Allison Stevens sat in the front row, finding the case a reminder of harassment.
WASHINGTON (WOMENSENEWS)–A couple months ago, I got a front-row seat to oral arguments by the Supreme Court in the case of Jacqueline Fitzgerald, a kindergartner from Hyannis, Mass., who was sexually harassed as she rode the bus to school.
It was one of the best seats I’ve ever had at a Supreme Court hearing, which are often packed full with reporters when the issues at stake are high-profile ones like affirmative action or abortion rights.
But the court’s Dec. 2 hearing drew no such crowd to hear about the sexual harassment allegations of a 5-year-old girl. And the court’s unanimous ruling in favor of the girl and her parents in January attracted little attention in the news media.
For most news media, sex discrimination cases are a yawn. Media attendance, for example, was fairly sparse at the case involving Lilly Ledbetter, who sued her former employer, a Goodyear Tire and Rubber plant in Alabama, after she learned she had been receiving less pay than lower-qualified males in the same position.
That case only excited national attention months later when the court ruled against Ledbetter and Justice Ruth Bader Ginsburg read a scathing dissent from the bench. At that point news organizations were hard pressed to find a photo of Ledbetter and several wound up buying the one I’d taken for Women’s eNews. Not even the Associated Press had bothered to keep a photograph of Ledbetter on file, I was told.
Last week, of course, U.S. lawmakers passed the Lilly Ledbetter Fair Pay Act, which is designed to counteract the effects of the ruling. President Barack Obama signed the bill into law–his first–on Thursday.
In this more recent case, Fitzgerald v. Barnstable School Committee, a third-grade boy on Fitzgerald’s school bus would regularly force the 5-year-old to lift up her skirt and pull down her underpants, according to news reports.
It’s a horrible story, but at first I wasn’t the least bit surprised to see the media take a pass on this matter of schoolyard justice. The only times it seems to merit attention is when it’s too late, such as with the Columbine school shooting in Colorado in 1999, involving bullying of the non-sexual kind.
Sexual harassment and bullying are common on school grounds, according to Sexual Harassment Supports, an online advocacy site. Some 4 out of 5 children experience some form of sexual harassment or bullying, according to the site.
Indeed, it was an everyday occurrence at my junior high school in a suburb of Chicago. In homeroom, pre-pubescent seventh-grade boys would race around the classroom tackling me and other girls, thrusting their hands up our shirts and feeling our breasts all while our teacher rolled her eyes and shrugged her shoulders as if to say, "Boys will be boys."
Outside class, boys would cop a feel as they passed girls in the hallway. And I can only imagine what other kinds of harassment–or assault–happened outside public view.
Embarrassed in Junior High
I suffered no serious damage from the experience, but I do remember feeling embarrassed–and even slightly violated–from those junior high encounters.
Still, it never occurred to me to tell anyone in authority about what was going on, especially because an authority figure–our teacher–watched much of it happen. I cannot fathom having filed a lawsuit back then. Such a move would have been social suicide in the cutthroat hierarchy of junior high, where boys increasingly viewed girls as sexual curiosities rather than rival playmates.
But Fitzgerald, only 5 at the time she was harassed, did tell her parents, and they felt compelled to act. An adult now, I understand why they complained. How could a parent–or a teacher, or any adult, for that matter–allow a girl of any age to be harassed or assaulted? They don’t allow it in the workplace, so why should they allow it in the classroom or on the school bus? And if it’s so ordinary, doesn’t that mean it’s pervasive, and all the more deserving of immediate attention?
The Fitzgeralds seemed to think so. They complained to the school principal, who commenced an investigation and tried to identify the perpetrator and resolve the issue. But according to legal summaries of the case, the principal would not agree to the parents’ request to place an adult monitor on the bus or assign the perpetrator to a different bus.
Demanding Equal Protection
The Fitzgeralds then sued the school district on two counts: alleged violations of Title IX, the law that guarantees equality for girls and boys in schools that receive federal funding, and the equal protection clause of the Constitution, which is enforced through Section 1983 of the U.S. Federal Code.
A district court judge ruled that the school did not meet the "deliberate indifference" standard required by Title IX because it did take some steps to look into the matter. The district court also said the Fitzgeralds could not launch a competing constitutional equal protection claim. A federal appeals court upheld the decision.
But in an unexpected unanimous decision, the Supreme Court reversed the lower courts’ ruling. Writing for the court, Justice Samuel Alito said: "We hold that Section 1983 suits based on the equal protection clause remain available to plaintiffs alleging unconstitutional gender discrimination in schools."
The Fitzgeralds are now free to pursue their suit on constitutional grounds and have laid the groundwork for countless other parents who want to protect their daughters or sons from discrimination in the form of harassment or assault.
If that happens, maybe sexual harassment will become a little less ordinary, and considered a little more newsworthy when a gender discrimination case reaches the Supreme Court.
Allison Stevens is Washington bureau chief at Women’s eNews.
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