— Heidi Sfiligoj, News Staff

The U.S. Supreme Court decided two cases in which NASW filed briefs last year. Additionally, NASW recently filed two friend-of-the-court briefs in cases addressing custody disputes between same-sex couples.

Decisions Reached

The U.S. Supreme Court reached a decision in Crawford v. Nashville, for which NASW joined a brief filed by the National Women's Law Center and other groups to argue that the anti-retaliation provision of Title VII of the Civil Rights Act protects workers from dismissal because of cooperation with an employer's internal investigation of sexual harassment. The case involved Vicky Crawford, who was fired after 30 years of employment with the Metropolitan Government of Nashville and Davidson County months after giving evidence about sexual harassment by a senior manager in an employer-initiated investigation of his conduct. A circuit court ruling found that Crawford had no protection against retaliation. The Supreme Court overturned this decision, holding that the non-retaliation provisions of Title VII of the Civil Rights Act of 1964 applied to employees who report sexual harassment during an internal employer-initiated investigation, as well as to employee-initiated complaints.

A decision favoring NASW's position was also issued by the U.S. Supreme Court in Fitzgerald v. Barnstable School Committee. The case involved an elementary school student who was sexually harassed by an older student on a school bus in Massachusetts. The school district declined to place the older student on a different bus or to place an adult on the bus to monitor for harassment. The Court of Appeals for the First Circuit upheld the school's motion for summary judgment based on a Title IX claim but declined to consider the parents' claims under Section 1983, ruling that Title IX preempts additional claims.

This is important to potential litigants because Section 1983 claims provide different legal options than Title IX, such as suing individuals, as well as municipalities, and different bases for legal liability.

The court recently held that Title IX does not preclude actions under Section 1983. The case was remanded for a determination of the merits of the Section 1983 claim.

Briefs Filed

NASW, along with its Ohio Chapter, filed a brief in a case before the Court of Appeals of Ohio, Eighth District, in Cuyahoga County, Ohio.

The case, Goodman v. LaPiana, involves a same-sex couple who raised two boys together. After the couple decided to become parents, LaPiana became pregnant twice through artificial insemination, using the same donor each time. In the brief, NASW supports the trial court's decision to grant Goodman the right to visit and parent her children.

"[The couple] raised the two boys together as co-parents, and the boys recognized each woman as a mother," the brief states. "In families such as this, the children have a biological parent and a 'psychological' or 'de facto' parent - i.e., a person who is not the biological or adoptive parent of the children but who nonetheless has a fully-developed parental relationship with the children and who functions as a parent in every respect."

The brief notes that Ohio law recognizes that a person who has acted as a parent to a child may petition for an allocation of custody and visitation in the best interests of the child and also may be required to provide financial support for the child.

"By granting Goodman the right to visit and parent her children, the trial court acknowledged the children's best interests," the brief states. "As the trial court noted in its findings, [the couple and their children] functioned as a family unit during the [couple's] nearly 10-year relationship."

In supporting the trial court's decision, NASW makes the following arguments:

• Attachment bonds between children and their gay and lesbian psychological parents should be protected and preserved if in the children's best interests.
• A number of courts, including the Supreme Court of Ohio, have accepted the social science research in recognizing that it is in the child's best interest to respect a child's established attachment to a second parent.

"The trial court's order respects the best interests of S.J.L. and J.K.L. by allowing their existing attachment bonds to continue to foster and by permitting Ms. Goodman to contribute to the financial support of her sons. Separating S.J.L. and J.K.L. from either of their parents would cause irreparable damage, and the children would face significant and severe harm as a result," the brief concludes.

The brief was filed through the pro bono services of a legal team at Porter Wright, headed by Daniel Miller.

NASW, along with its New York State and New York City chapters, filed the second brief in New York in the case Debra H. v. Janice R. The question in the case is whether Debra served as a psychological parent to M.R., the child Janice gave birth to at least one year after she and Debra moved in together, by providing critical emotional, physical and financial support to M.R.

The brief argues that a proper determination of M.R.'s best interests should consider M.R.'s relationship not just to Debra, but also to Debra's young adult daughter from a previous marriage, who lived with the couple.

In the brief, NASW supports Justice Beeler's decision to grant a hearing to Debra. "Without a hearing, the court would be unable to resolve upon due deliberation whether [she] is M.R.'s psychological parent," the brief states. In the brief, it is emphasized that, if the court determines that she functioned as M.R.'s psychological parent, then she should be permitted to seek custody or visitation, as not allowing her to do so "could rupture M.R.'s attachment bonds to her and jeopardize M.R.'s emotional and physical development."

The brief makes two arguments:

• Attachment bonds between children and their gay and lesbian psychological parents should be protected and preserved in the children's best interests.
• Sibling bonds between children should be protected and preserved in the children's best interests, including bonds between older and younger siblings.

"In this case, M.R. has the right to declarations of parentage and awards of custody and visitation that ensure his interest in maintaining critical parent-attachment and sibling-attachment bonds is met," the brief concludes.

The New York brief was drafted and filed through the pro bono services of a legal team from Kramer Levin Naftalis & Frankel LLP, headed by Jason Moff.

Briefs from both cases provide social science research that supports the conclusion that children suffer significant and often irreparable harm when they are forcibly separated from adults who have functioned as their parents, whether or not the parents are same-sex or heterosexual.

Get more information from the Amicus Brief Database.