Topic: Franklin v. Gwinnett County Public Schools
Senator: Leahy
Date: SEPTEMBER 13, 2005
Contents
LEAHY: But I read it also, in conjunction with your brief that you wrote in 1991, when you were Kenneth Starr's political deputy, in Franklin v. Gwinnett County Public Schools -- now in that case, a girl, Christine Franklin, had been sexually harassed, she'd been abused by the time she was in 10th grade by a teacher and a sports coach.
The school was aware of sexual harassment but took no action. In fact, they even encouraged her not to complain.
The Office for Civil Rights at the Department of Education investigated; found their rights were violated under Title IX of our civil rights laws. She had been physically abused. A right to complain about gender discrimination had been interfered with.
discrimination being interfered with.
LEAHY: You argued that she had no right to damages for this abuse.
Now, your view was rejected by the Supreme Court. Justice White, in an opinion joined by Justice O'Connor and others, wrote that you fundamentally misunderstood the long history of the court's role in providing appropriate remedy for such abuse and that you had invited them to abdicate their historical judicial authority toward appropriate belief.
So do you now personally agree with and accept as binding the law the reasoning of Justice White's opinion in Franklin?
ROBERTS: Well, it certainly is a precedent of the court that I would apply under principles of stare decisis. The government's position in that case, of course, in no way condoned the activities involved.
The issue was an open one. The courts of appeals had ruled the same way that the government had argued before the Supreme Court. And it arose because we were dealing with an implied right of action; in other words, right of action under the statute that courts had implied.
The reason that there was difficulty in determining exactly what remedies were available is because Congress had not addressed that question. The remedies that were available as we explained included issues such as restitution, back pay, injunctive relief.
The open issue, again, was whether damages were available. The Supreme Court issued its ruling and cleared that up.
LEAHY: But here in a case -- I mean, this is a pretty egregious case. And I'm sure you in no way condoned what happened to this young girl. It was awful. She'd been taken out of class by this teacher, brought to another room, basically raped.
And Justice White made it very clear, contrary to what you and Kenneth Starr had said, that she had a right for actions because of that abuse.
Now, do you feel that they were acting -- even though it went different than what you'd argued -- do you feel the court's opinion is based on sound reasoning?
ROBERTS: Well...
LEAHY: Do you think it's a solid precedent?
ROBERTS: It's a precedent in the court. It was, as you say, unanimous precedent. It concerned an issue of statutory interpretation because it was unclear whether Congress had intended a particular remedy to be available or not. That was the question before the court.
The court of appeals had ruled one way. The Supreme Court ruled the other way.
The administration's position was based on the principle that the decision about the remedy of back pay was a decision that should be made by Congress and not the court. The court saw the case the other way.
And that issue is now settled. Those damages, actions are brought in courts around the country.
LEAHY: But I wonder if we're balancing angels on the head of a pin. What kind of back pay was this teenage student going to be seeking? What kind of injunction is she going to do -- after she graduated? Would she seek that kind of injunction?
You know, as a parent -- and you're a parent, I just wonder: Aren't we saying that we'll put up a block for people who have really justiciable reasons to be in court?
ROBERTS: No, Senator, again, there was no issue in the case about condoning the behavior. I found it abhorrent then and I find it abhorrent now. That's not the issue. The issue in the case is: Did Congress intend for this particular remedy to be available?
Other remedies were available under the provision at issue. And the question is: Was this remedy available?
LEAHY: The back pay?
ROBERTS: Restitution and injunction to prohibit the harmful activity -- again, the issue arose because Congress had not spelled out whether there was a right of action in the first place or what the components of that right of action should be.
LEAHY: We'll go back to this in my next round, I can assure you. My time is up.
Thank you, Mr. Chairman.
SPECTER: Thank you very much, Senator Leahy.
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