A day doesn’t go by that we don’t hear about a man in the public eye being found to have had sex with female subordinates at work.  Today’s offender is 46 year-old Steve Phillips, ESPN baseball analyst (love that term, instead of “on-air baseball commentator who was accused of sexually harassing a female employee when he was general manager of the Mets in 1998″), who seems to have had a short-lived affair with a 22 year-old female production assistant.  Like David Letterman, whose office affair with a younger woman turned sour when her ex-boyfriend tried to blackmail Letterman, Phillips got into trouble when the woman he had been sleeping with began calling Phillips’ wife, Marni,  after he broke off the affair and sent her a letter graphically describing their relationship and Phillips’ birthmarks.  Mrs. Phillips filed for divorce in September, Phillips was fired from ESPN last Sunday, and today we learn that ESPN fired the young woman as well.  What a mess.

What relationship does this scandal bear to other recent sexual misconduct by guys in the public eye?  As we all know by now, David Letterman has had to perform public acts of contrition on his TV show after it became known that he had had multiple affairs with female members of his staff, yet the scandal seems to have been good for the show’s ratings and Letterman is nowhere close to being fired (doesn’t hurt that he is his own boss) or canceled by NBC.  Then there’s Elliot Spitzer, who, unlike Letterman but like Phillips, lost his job on account of his sexual misdeeds.  (I’ve blogged previously about the Spitzer mess – and actually see it as representing a kind of problem different from what’s at stake in the workplace affair cases, such as those of Letterman and Phillips).

Is sex with a subordinate always justification for termination?  Did ESPN get it right and CBS/”World-Wide Pants” (Letterman’s production company) get it wrong?  Does it always violate laws prohibiting sex discrimination in the workplace?  Should it?

The National Organization for Women has taken a strong position on this issue, issuing a press statement shortly after the Letterman-imbroglio broke condeming him and CBS for having created a “toxic work environment” for women.  Sleeping with his female staff created “an awkward, confusing and demoralizing situation” for female workers.  (Surely this could have been put somewhat better: Is awkwardness or confusion what the law of sexual harassment was designed to prevent?)

So here’s the thing: Are right-minded people supposed to conclude that women can never, never, consent to sex in the workplace – particularly with someone of greater seniority?  Is there anything else that you’d want to know about these cases in order to fully judge their illegality?  Is awkwardness or confusion enough?  What about implicit or explicit threats, promises of rewards, retribution, or prices to be paid once the affair ends?  Or should we hold the view – should the law hold the view – that the mere fact of the sex is enough to declare that sex discrimination is what happened?

Many feminists maintain that consent is not a meaningful concept in a workplace setting where sex takes place between a male superior and a female subordinate.  For them, the sex is from the start suspect and discriminatory.

Yet what is the cost to women’s sexuality of such an approach?  This is the challenge as we think through workplace sexual harassment doctrine for the 21st Century: How to acknowledge, on the one hand, that many, many women suffer explicit and implicit forms of humiliating and degrading harassment of a sexual nature in the places where they work, while at the same time crafting an approach to this issue that does not overdetermine women as always, already sexual victims – allowing some room for our sexualities to be more than an injury waiting to happen.

From the very start of the Letterman affair, when we knew nothing about the nature of the relationships he’d had with the women on his staff, many just assumed that the women he slept with were victims, felt discriminated against, exploited, and/or used.  But what if they didn’t?  What if they 1) were the ones who initiated the affair, 2) were embarrassed to have had it, 3) were bummed that their relationship with Letterman had ended, 4) were relieved that it was over, 5) had positive feelings about the affair, or 6) were indifferent about the whole thing?  Would this information change how we judged the situation?   Should it?  Or should we have a rule that starts from the premise that the likelihood of exploitation and discrimination is so high in workplace romances between male superiors and female subordinates that we ought to have a “prophylactic” rule (sorry) that prohibits and punishes them all, no matter what.

I incline in the direction of wanting a more subtle approach to the problem than that urged by NOW in it’s statement on the Letterman affair.  I’ve written about this in academic journals, and was recently interviewed by a Brazilian TV show that wanted to explain to their audience what the big deal was about Letterman’s affair.  You can watch some of it here:

And then there is just my quick and dirty explanation of sexual harassment law in the U.S. (with an added bonus-feature of my thoughts on the Roman Polanski arrest):

The Supreme Court issued a decision today authored by Justice David Souter that is likely his last opinion on the Court.   The Court decided Safford Unified School District v. Redding 8-1 that the Fourth Amendment’s prohibition against unreasonable searches and seizures was violated when public school officials searched a 13 year old girl by having her strip down to her underpants and bra and shake them to see if any “contraband pills” dropped out.  None did.  But the “none did” part wasn’t what the case turned on – instead the question was the reasonableness of asking a young girl to stand almost naked at school and prove that she hadn’t hidden drugs in her underwear when a classmate had told school officials that she had gotten prescription drugs from the girl searched.  It’s important to note that the drugs in question were not Quaaludes, speed, ecstasy or other street drugs, or even “recreational” prescription drugs such as vicodin or oxycontin, but were much more benign pain killers – prescription-strength ibuprofen and over-the-counter naproxen, common pain relievers equivalent to two Advil, or one Aleve.  Girls with bad menstrual cramps often use these drugs – you don’t/can’t get high from them.

But there she stood, shaking her bra and undies for school officials nonetheless.  As Justice Thomas argued in his dissent, wherever a pill could fit, it’s reasonable to search (he used a baseball bat in a pocket metaphor that I’ll skip for now).

Eight members of the Supreme Court felt the undie-shaking search was unreasonable under the law of the Fourth Amendment – only Justice Thomas held the view that it wasn’t, as he was the lone dissenter.  (I’ll resist the urge to think out loud about Justice Thomas’ history of sexual exhibitionism and the ironies of his dissent in this case.  It’s hard, but I’ll leave it to others to connect the dots here.)  Justice Thomas’ dissent boils down to this: discipline and rule enforcement in schools should not be governed by the Fourth Amendment (or the Equal Protection clause by implication) because school officials should be understood as having the unfettered authority parents have to discipline and regulate their children’s behavior (in loco parentis, in legal lingo).  If Savana Redding’s parents didn’t like the “zero tolerance – search your undies if you’re a suspect” policy they should have moved her daughter to another school.  (In fact, that’s what they did given how outrageous they found the behavior.)  This kind of “love it or leave it” approach to the scope of the Constitution defies belief: “hey, if you think you should have a right to better treatment, go find other people who share your views and move there.”

Chief Justice Roberts could have assigned the case to a more conservative justice than Justice Souter given that he, Roberts, was in the majority, but he didn’t.  So there is some significance to the fact that Justice Souter wrote the opinion for the overwhelming majority of the Court four days before his last day as a Supreme Court justice.   Justice Souter is no stranger to sex assault/civil rights cases, and one reading of the facts is that what happened to Savana Redding was a form of sexual assault (I don’t hold this view, but you almost feel that Souter does when you read the opinion).   Twelve years ago, Justice Souter wrote the opinion for an unanimous Court finding that Judge David Lanier could be tried for violating the civil rights of women who were told that Lanier would treat their cases favorably if they performed sexual favors for him.  Read about the case here.

What’s different about the Redding case, when compared with the Lanier case, and what might suggest that it will make a difference to have another woman on the Court (or at least a man like Justice Stevens who seems to “get” these issues), was that the Supreme Court found in Redding, unlike in Lanier, that the school officials’ conduct was not “constitutionally outrageous.”  This means that the school officials will be cut a break in this case becauase they, unlike Judge Lanier, might have been reasonably mistaken as to whether it was ok to subject Savana to a strip search looking for Aleve-like drugs based on an unsubstantiated tip.   Justices Ginsburg and Stevens wrote separately to insist that any reasonable school official should have known that this conduct ran afoul of the Fourth Amendment.  Press coverage of the oral argument in the case underscored Justice Ginsburg’s outrage at her male colleagues’ jokes about stuffing things down their underwear in junior high school.  As Dahlia Lithwick blogged at Slate about the case today, after the towel-snapping tone of the oral argument, one wonders what Justices Ginsburg and Stevens said to their colleagues in conference that got them to rule 8-1 in Redding’s favor, and got Souter the job of writing the opinion on his way out the door.

The Supreme Court issued several very important opinions this morning, one we have blogged about before – Fitzgerald v. Barnstable – in which the Court was asked to determine whether the remedy provided by the federal statute that prohibits sex discrimination, including sex harassment, in schools (Title IX) precludes enforcement of sex discrimination claims under the Constitution.

To our relief, the Court ruled UNANIMOUSLY that Title IX does not preclude constitutional claims, on the ground (for you lawyers out there):

Title IX has no administrative exhaustion requirement and no notice provisions. Plaintiffs can file directly in court under its implied private right of action and can obtain the full range of remedies. Accordingly, parallel and concurrent §1983 claims will neither circumvent required procedures nor allow access to new remedies … Because Title IX’s protections are narrower in some respects and broader in others than those guaranteed under the Equal Protection Clause, the Court cannot agree with the First Circuit that Congress saw Title IX as the sole means of correcting unconstitutional gender discrimination in schools.

The full opinion is available here.

(On a distressing note for civil rights lawyers, in a separate case issued this morning, the Supreme Court unanimously overruled Saucier v. Katz in Pearson v. Callahan and adopted a discretionary standard that allows courts to resolve the qualified immunity inquiry without first determining whether a constitutional right was violated.  This ruling deals with a very technical part of civil rights law that will make it much more difficult for plaintiffs to win constitutional cases and will deter the evolution of the law in cases where the law had not yet been clarified by and through judicial opinions.  The opinion is here.)

On Tuesday, the Supreme Court heard oral argument in Fitzgerald v. Barnstable School Committee – a case involving a girl in the kindergarten at Hyannis West Elementary School who claimed that every time she wore a skirt to school, an eight-year-old third grade boy on the school bus would force her to lift her skirt, pull down her underpants, or spread her legs, while other students laughed at her. She charged the school with sex discrimination in connection with their investigation of these allegations. Her complaint made two separate sex discrimination claims: one under the Equal Protection clause of the 14th Amendment and the other under Title IX of the 1972 Education Amendments – a law prohibiting sex discrimination in any educational program that receives federal funding.

The issue before the Supreme Court did not address the merits of her claim, rather it raised a technical, yet extremely important, issue of federal anti-discrimination law: when Congress enacted Title IX, did it intend it to be the only protection students would have against sex discrimination in education, thereby eliminating a claim under the 14th Amendment’s Equal Protection clause? (The technical formulation of the question is whether the implied right of action contained in Title IX precludes a §1983 Equal Protection cause of action?) The federal circuit courts have split on this question, and the Supreme Court took the case to resolve this split. A fuller summary of the case is available here.

Why is the case important? It is a huge deal that the Court could find that Title IX – a statute that Congress enacted to provide protections against sex discrimination in education in addition to those contained in the Constitution – would be read a generation later to eliminate the application of the Constitution in schools.

Unfortunately, the oral argument before the Supreme Court this week didn’t go so well. The transcript is available here. Justice Breyer asked if it would be possible to imagine a case in which an institution would be found not to have violated Title IX, but still could be held to have violated the Constitution. Kay Hodge, the lawyer representing the school district, said she could not imagine such a case. In this case, she added, there could not be claims under both Title IX and the Constitution because the parents’ claims under both were “virtually identical.”

But they aren’t virtually identical.

First, the plaintiff alleges that the school discriminated on the basis of sex both in the course of the investigation and in the proposed remedy. This theory may not state a Title IX violation because it may not establish that “the harassment deprived [respondent] of educational opportunities or benefits,” a requirement of a Title IX claim. There is, however, no such requirement for constitutional equal protection claims; investigations or remedies that are discriminatory may trigger a constitutional violation regardless of whether the student’s educational opportunities were disrupted.

Second, under an Equal Protection theory, plaintiff could have established that the school had a practice or policy of being more responsive to complaints of bullying lodged by male victims than to claims of harassment advanced by female victims, something much more difficult to make out under Title IX.

The Sixth, Eighth, and Tenth Circuits have held that Title IX does not preempt constitutional claims against schools. In contrast, the First, Second, Third, and Seventh Circuits have held that Title IX does foreclose constitutional claims arising from the same incident that prompted suit under Title IX. Only once before has the Supreme Court found that a statute like Title IX signaled Congress’ intent to preclude a Constitutional claim- in Smith v. Robinson. In that case Congress took little time to tell the Court that it had gotten the issue wrong, promptly passing a law clarifying that it did not intend to preclude Constitutional claims when it passed civil rights statutes expanding the rights of students to an education free from discrimination.

Accepting the school’s argument would mean that Congress, by enacting a statute that was intended to provide additional protections for victims of sex discrimination, meant to withdraw all other remedies for the vindication of existing constitutional rights even though the old and new remedies differ significantly in scope. It would also mean that Congress intended to preclude use of § 1983 to enforce the Constitution by enacting a statute that provides no express private rights at all, thus leaving it to the courts to decide the nature of the new substitute remedy. This means the Congress can do an end run around the Constitution by enacting a vague statute that sort of takes aim at discrimination, and then rather than having the Constitution dictate what protections one has against discrimination, give that power to the Supreme Court to decide. Of course, if I were able to write the Supreme Court’s opinions this wouldn’t be a problem! But John Roberts has got the job, and he made clear in the oral argument on Tuesday, and in earlier decisions, that he’s not at all interested in interpreting anti-discrimination laws felicitously, as we say in the law.