The court also let stand without comment a lower court ruling striking down the Child Online Protection Act, putting an end to a decade of litigation. The law had made it a crime for commercial Web sites to make sexually explicit materials available to children under 17.
The case involving the student, a girl in kindergarten in Hyannis, Mass., started when she told her parents she was being sexually harassed by an 8-year-old boy every time she wore a dress or skirt to school. Her parents, dissatisfied with the school’s response to their complaints, sued under two federal laws.
The federal appeals court in Boston ruled against the parents on both claims. It said the parents could not win under Title IX, which bars sex discrimination in schools that receive federal money, because they could not prove the school system had acted unreasonably. And the parents could not invoke an older and broader civil rights law known as Section 1983, the appeals court said, because “Congress saw Title IX as the sole means of vindicating the right to be free from gender discrimination perpetrated by educational institutions.”
That second ruling was wrong, Justice Alito wrote in Wednesday’s decision, because there was little evidence that Congress intended to preclude Section 1983 claims when it enacted Title IX. The two laws overlap but are not identical, Justice Alito said, noting in particular that Title IX does not allow suits against individuals.
The Supreme Court returned the case, Fitzgerald v. Barnstable School Committee, No. 07-1125, to the lower courts to consider whether the parents can prove their claim under Section 1983. At the argument of the case last month, several justices expressed skepticism on that point.
The case involving the drug dealer, Afton Callahan, arose from a 2002 search of his home in Fillmore, Utah, by members of a police task force who did not have a warrant but relied on the fact that he had allowed a police informant posing as a customer to enter. A Utah appeals court threw out Mr. Callahan’s conviction, saying the “planned illegal entry” by the police had violated the Fourth Amendment.
Mr. Callahan then sued members of the task force under Section 1983, the same civil rights law at issue in the Massachusetts case. In response, the officers argued that they should be entitled to immunity from suit, a contention rejected by the federal appeals court in Denver.
The appeals court, in ruling that the officers had violated Mr. Callahan’s rights, drew a distinction between undercover police officers and informants. Had Mr. Callahan invited an undercover officer in, the court said, the search would have been authorized under a doctrine known as consent-once-removed. Informants are different, the court continued.
The appeals court then addressed the second question in the immunity analysis, whether the constitutional right in question had been clearly established at the time of the violation.
The court said the right to be free from unreasonable searches in one’s home was clearly established in 2002.
The Supreme Court reversed. The right in question was not the broad one identified by the appeals court, Justice Alito wrote. The Supreme Court looked instead to a series of lower court decisions that had accepted the consent-once-removed doctrine in various settings. In light of those decisions, the police officers were entitled to immunity even though the appeals court in their case had ruled that the doctrine did not apply to informants.
The decision, Pearson v. Callahan, No. 07-751, was also notable for refashioning the analysis to be used in deciding such questions of immunity.
A 2001 decision, Saucier v. Katz, had required lower courts to consider the two questions in immunity cases in a particular order. First, courts had to decide whether the official conduct violated the Constitution. Only then could courts consider whether the constitutional right in question was clearly established at the time of the violation.
That “rigid order of battle,” in the words of one appeals court, was unpopular with many lower court judges and some justices because it often forced courts to decide a hard question before an easy one. Wednesday’s decision made the Saucier rule discretionary rather than mandatory.
In the online pornography case, the court rebuffed the government’s request that it consider the constitutionality of a 1998 law for a third time. That law, the Child Online Protection Act, was a reaction to a Supreme Court decision striking down an earlier law meant to protect minors from sexual materials on the Internet. President Bill Clinton signed the new law in 1998, but it was promptly enjoined by Judge Lowell A. Reed Jr., a federal judge in Philadelphia.
In 2004, the Supreme Court affirmed the injunction by a vote of 5 to 4 and sent the case back for a trial to consider the effectiveness of filtering technologies. In March 2007, Judge Reed struck down the law, ruling that software filters are less restrictive and more effective than legal prohibitions.
But Judge Reed noted his “personal regret at having to set aside yet another attempt to protect our children from harmful material.” The federal appeals court in Philadelphia affirmed.
In urging the Supreme Court to hear the case, Mukasey v. American Civil Liberties Union, No. 08-565, the government said the lower courts’ decisions “would leave millions of children unprotected from the harmful effects of enormous amounts of pornography on the World Wide Web.” About half of households with children and Internet access do not use filters, the government’s brief said.