Supreme Court Provides for Civil Rights Claim in Peer Sexual Harassment Case

In somewhat of a shocking fashion, the U.S. Supreme Court yesterday ruled to permit victims of peer sexual harassment in the educational context to pursue civil rights claims against schools and school officials under Section 1983, even if they have separate viable claims under Title IX.  The decision was unanimous, with Justice Alito writing for the Court.

The case of Fitzgerald v. Barnstable School Committee grows out of allegations that “paint a grotesque picture of peer-on-peer sexual harassment at the elementary school level.” The case involves these facts:

On the morning of February 14, 2001, Jacqueline Fitzgerald, a kindergarten student, informed her parents, Lisa Ryan and Robert Fitzgerald, that each time she wore a dress to school — typically, two to three times a week — an older student [third-grader] on her school bus would bully her into lifting her skirt . . . . in addition to pressing her to lift her dress, [the 3rd- grader] had bullied her into pulling down her underpants and spreading her legs . . . .

[T]he police department ultimately decided that there was insufficient evidence to proceed criminally against [the 3rd-grader].  Relying in part on this decision and in part on the results of the school’s own investigation, [the school district official] reached a similar conclusion as to disciplinary measures.

Continue ReadingSupreme Court Provides for Civil Rights Claim in Peer Sexual Harassment Case

Supreme Court Hears Oral Argument in Nken v. Filip, on Question of Standard of Review for Stays of Removal Pending Appeal

Yesterday the Supreme Court heard the argument in Nken v. Filip (formerly Nken v. Mukasey), which asks whether an alien who seeks a stay of deportation pending appeal must prove by clear and convincing evidence that his deportation is prohibited by law.  The majority of courts have held that the ordinary standard for stays pending appeal continues to apply to such stays despite Congress’s enactment in 1996 of legislation providing that “no court shall enjoin the removal of any alien pursuant to a final order under this section unless the alien shows by clear and convincing evidence that the entry or execution of such order is prohibited as a matter of law,”8  U.S.C. sec. 1252(f)(2).

The question is especially important in cases like Mr. Nken’s, in which the alien’s underlying claim is that he will suffer severe persecution or even death if returned to his country.  If such aliens must demonstrate their right to stay by clear and convincing evidence, i.e., more than a preponderance of the evidence, to obtain a stay, then the expected result would be that some aliens with valid claims would be returned to their home countries and possibly subject to persecution before having the chance to have their appeals decided on the merits.

Continue ReadingSupreme Court Hears Oral Argument in Nken v. Filip, on Question of Standard of Review for Stays of Removal Pending Appeal

Wisconsin Supreme Court Accepts Two More Cases, Including Question of Probable Cause to Arrest for OWI

Yesterday the Wisconsin Supreme Court voted to accept two more cases this term, Zellner v. Herrick, no. 2007AP2584, and State v. Lange, 2008AP882-CR.

At issue in Zellner v. Herrick is whether the transcript of Robert Zellner’s closed arbitration proceeding is a “public record” under Wisconsin’s public records law, and if so, whether personal information must be redacted before release of that record.  Zellner is the Cedarburg School District teacher who lost his job for allegedly viewing pornography on a school computer.  The issue of whether the transcript of Zellner’s arbitration proceeding is a public record was certified to the court from the court of appeals.  At the same time as it accepted the certification, the Wisconsin Supreme Court declined to hear Zellner’s appeal of the court of appeals decision that affirmed the trial court’s conclusion that an arbitration panel wrongly reinstated Zellner to his position.

Does a police officer have probable cause to suspect a driver is operating a vehicle while intoxicated, when the officer observes a car driving more than 84 miles per hour in a 30 mph zone, on the wrong side of the road, shortly after bars have closed, and then hitting a utility pole and flipping over, leaving the driver unconscious? That is the question in State v. Lange, where the State appeals from the Court of Appeals decision that the police lacked probable cause.

Continue ReadingWisconsin Supreme Court Accepts Two More Cases, Including Question of Probable Cause to Arrest for OWI