It’s rare the cases on which the Supreme Court will rule unanimously these days. The Court is split so severely on ideological and political lines that any case which raises a hint of controversy is usually decided by a split decision. I believe if Brown v. Board of Education came before the Roberts’ court I doubt it would garner more than five or six votes.

And gender discrimination cases are hot button items for many conservatives, which is why I wasn’t surprised when the Court ruled against Lilly Ledbetter, a case in which a woman was prevented from suing her employer for equal pay violations by a 5-4 vote that split precisely along conservative and liberal lines. Moderate conservative Justice Kennedy provided the swing vote which gave Justice Alito the slim majority he needed to rewrite the employment discrimination laws (now overturned by the Lily Ledbetter Act which President Obama signed last week).

So I was mildly shocked to discover that even the conservative justices on the Court agreed that a five year old girl could sue a School District for sexual harassment by caused by another child on the school bus she took each day:

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. […]

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.[…]

The [child’s parents] 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. […]

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.”

Let me explain why this is surprising. We all know that conservative justices like Alito and Scalia and Roberts don’t like protecting the civil rights of minorities and women. In general, they view the cases and the laws which extended equal protection as an unwarranted (and in some cases unconstitutional) expansion of that principle by the Courts. In general, it is their view that laws extending protection to individuals from gender discrimination should be construed as narrowly as possible (thus the result in the Ledbetter case) so as not to burden the “rights” of corporations and their shareholders (i.e., to shield corporations and other businesses from expensive gender discrimination lawsuits).

So I am mildly shocked that the Court not only allowed the parents of this child to pursue their rights under Title IX, but also explicitly stated that they could also pursue a claim under the Equal Protection clause of the Constitution.

A comparison of the substantive rights and protections guaranteed under Title IX and under the Equal Protection Clause lends further support to the conclusion that Congress did not intend Title IX to preclude §1983 constitutional suits. Title IX’s protections are narrower in some respects and broader in others. Because the protections guaranteed by the two sources of law diverge in this way, we cannot agree with the Court of Appeals that “Congress saw Title IX as the sole means of vindicating the constitutional right to be free from gender discrimination perpetrated by educational institutions.” 504 F. 3d, at 179. […]

In light of the divergent coverage of Title IX and the Equal Protection Clause, as well as the absence of a comprehensive remedial scheme comparable to those at issue in Sea Clammers, Smith, and Rancho Palos Verdes, we conclude that Title IX was not meant to be an exclusive mechanism for addressing gender discrimination in schools, or a substitute for §1983 suits as a means of enforcing constitutional rights. Accordingly, we hold that §1983 suits based on the Equal Protection Clause remain available to plaintiffs alleging unconstitutional gender discrimination in schools.

The fact that this was a school district and not a for profit business may have factored into their thinking. Or perhaps some of them have female children (e.g., Justices Alito and Roberts both have daughters) who they could at least imagine potentially suffering harm in this fashion, influenced their judgment of that the Fitzgeralds had the right to pursue a claim under the Equal Protection clause for the violation of their daughter. I know for many of you its a stretch to believe that these radical conservative could exhibit such empathy for the child plaintiff and her parents in this case, but people make compromises with their principles everyday when it comes to something that might possibly impact their children rather than adults. We are a society that that in general dotes on our children and seeks to maximize their protection from the harsh realities of the world (well, at least some of our children). I believe that Alito and Roberts were able to see themselves in the situation of the Fitzgeralds, and that affected the result in this case.

I wouldn’t expect Fitzgerald v. Barnstable School Committee to have much impact on other opinions and decisions Roberts, Alito, Scalia and Thomas render in the future regarding gender discrimination cases not involving the bullying and sexual harassment of a five year old girl. In that regard, the Fitzgerald case is one of a kind, an outlier, or as lawyers like to say sui generis. But for now we can take some small comfort in the fact that even the most extreme right wing partisans on the Supreme Court don’t approve of a five year old girl being forced to expose her genitals on a school bus merely to provide a third grade boy a cheap thrill. That’s something, I suppose.