End run around Morrison?

In 2000, the Supreme Court ruled the Violence Against Women Act of 1994 unconstitutional.  The decision in United States v. Morrison (529 US 598) followed closely upon the heels of US v. Lopez (514 US 549) and curbed Congress by limiting the reach of the Commerce Clause.  The law was intended to support investigation and prosecution of violence against women; it also provided an avenue of civil redress for the victims.  In Morrison, Christy Brzonkala was using the act to gain recompense after the administration of Virginia Tech did not punish the perpetrator despite an admission of continued sexual contact after being told ‘no’ and the grand jury did not indict.   After the Court’s ruling, Brzonkala had no other legal options.


As of April 2011, there may be a way for victims of sexual violence on college campuses (or any public or private institution receiving federal funds) to gain redress.  On April 4, the Office of Civil Rights issued a ‘Dear Colleague’ letter.  The letter provided guidance to schools covered by Title IX.   In this letter, the OCR outlined that sexual violence is a form of sexual harassment.  In 1980, the Equal Employment Opportunity Commission issued guidelines regarding Title VII and established that sexual harassment is sexual discrimination.  This definition of sexual harassment has also been accepted in Title IX.[1]  Under the broader rubric of sexual discrimination, all remedies under Title IX are available against a school if the school showed deliberate indifference.


Additionally, Section 1983 (42 USC § 1983) allows victims of sexual discrimination (or any other federal statutory right) to sue for damages.  So, if the transitive property of geometry also works in law, then if sexual violence is equal to sexual harassment and sexual harassment is equal to sexual discrimination, then sexual violence is also equal to sexual discrimination and therefore all available remedies available for victims of sexual violence, in schools or workplaces covered by Title IX and Title VII of the Civil Rights laws, are in play.  Under this interpretation, Brzonkala would likely prevail against Virginia Tech under the deliberate indifference standard because Morrison admitted contact after being rebuffed and the school did not sanction him, and she would have a case under §1983.


When we discuss the separation of powers, we consider that Congress or the administration has little ability to alter constitutional rulings.  However, in this situation a broadening of a definition seems to accomplish at least part of the congressional will behind the Violence Against Women Act of 1994.

[1] See Gebser v. Lago Vista Independent School District  524 US 274 (1998) and Davis v. Monroe County Board of Education 526 US 629 (1999).

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Filed under Discrimination, The Commerce Power, The Separation of Powers System in Action

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