Yep, major right wing judicial activism. The Court totally emaciated
its 1992 decision of Franklin v. Gwinnett County which said that courts
should apply Title VII principles to Title IX sexual harassment suits.
Now the Court is saying, "No, don't do that....apply section 1983,
constitutional principles." Of course, these are more difficult to
prove. What's the point of Title IX if we have to rely on a con law
standard of proof? Doesn't make sense.
If you read the decision, it comes across as very defensive --- as if
the Court had an agenda and then tried to find a reasoning for it. In
fact, the Court went beyond the Fifth Circuit.....taking a more extreme
side than anyone had even asked it to take. The Court's ostensible
reason for the distinction is that Title VII was passed under Congress'
power under the Commerce Clause, while Title IX was passed under
Congress' power under the Spending Clause of the Constitution. The
Court stated that before federal funding is withheld, the schools should
have actual knowledge. In reality, both statutes also fall within
Section 5 of the 14th Amendment.....which would blow out of the water
any different standards of liability. Sandra Day O'Connor is definitely
not a friend of women any more than Clarence Thomas is a friend of
minorities.