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YLS Supreme Court Clinic Wins Its First Case

Yale Law School’s Supreme Court Advocacy Clinic reached a milestone in late January, earning its first victory before the High Court in the case, Fitzgerald v. Barnstable School Committee.

The clinic represented plaintiffs Lisa and Robert Fitzgerald, who sued their daughter’s school district under two federal laws—Title IX and Section 1983—after the district failed to take disciplinary action against a third-grade boy the Fitzgeralds claimed was sexually harassing their kindergarten daughter.

A federal appeals court ruled the parents could not sue for constitutional violations under Section 1983 because Title IX was the only remedy for sex discrimination being perpetrated by federally funded educational institutions.

The Fitzgeralds appealed the decision to the U.S. Supreme Court, where this past December, the clinic argued that Congress did not intend Title IX to preclude alternative remedies to sex discrimination, such as that offered by Section 1983. The justices unanimously agreed, concluding in a decision issued January 21 that Title IX was neither exclusive nor a substitute for Section 1983. They returned the case to the lower courts, where the parents can now assert constitutional claims that may be advanced under Section 1983.

“It feels great to see our work pay off in a victory for our clients and others in their situation,” said Amy Kurren ’09, one of the clinic’s student directors.

Elizabeth K. Dollard Professor of Law Dan Kahan, who supervises the clinic, said the Court’s unanimity was particularly significant because the clinic “does not take on easy cases in which a clear majority of the Court is expected to favor our position.”

The Supreme Court Clinic, begun in the fall of 2006, allows students to work on real-life public interest cases pending before the Court. Working under the supervision of experienced Supreme Court litigators Charles Rothfeld and Andrew Pincus of Mayer Brown, as well as Yale Law faculty, the students draft certiorari petitions and write merits briefs if cert review is granted. Charles Rothfeld argued the Fitzgerald case on behalf of the clinic. He was assisted by fellows Scott Shuchart '03 and Terri-Lei O’Malley ’07 and clinic members Paul Hughes ’08, Amy Kurren ’09, and Joey Minta ’09.

“The clinic really has come into its own as a successful operation that is having a real impact on the work of the Supreme Court,” said Rothfeld. “This year we will have argued three cases in the Court and written the briefs for parties in four cases. The students are getting more experience in the Court than many practicing lawyers do.”

The clinic is still awaiting opinions on two pending cases. At issue in Negusie v. Mukasey, argued by Andrew Pincus in November, is whether the provision of the Immigration and Naturalization Act that prohibits the granting of asylum to individuals who engaged in persecution applies to those who did so under threat of torture or death.

“We are hopeful of a favorable ruling,” said Joshua Lee ’09, who worked on the case. “Some of the justices were clearly concerned about the logistics of a duress defense in asylum. But most seemed to agree with us that the government’s position—that duress is irrelevant—is unreasonable.”


Team members gathered at the Supreme Court following the Negusie argument. L-R: Joey Minta, Brian Barnes, Katie Wilson-Milne, Tom Donnelly, Andy Pincus, Joshua Lee, Charles Rothfeld, Catherine Barnard, and Sipoura Barzideh.

In Harbison v. Bell, heard on January 12, the clinic filed a brief on behalf of a death row inmate in Tennessee, arguing that he should have access to a federal public defender in clemency proceedings where state counsel is denied. 

A January 26 decision in the case Arizona v. Johnson went against the clinic. The Court ruled that it was permissible for a police officer to order a passenger to exit a car the officer has pulled over and thereafter conduct a pat down search. The clinic had argued that the Constitution requires the officer to have a reasonable belief that the passenger is engaged or will engage in criminal activity.