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Argument preview: Did Title IX displace the Constitution?

At 11 a.m. Tuesday, the Supreme Court will hear oral argument in Fitzgerald, et al., v. Barnstable School Committee, et al. (07-1125). Charles A. Rothfeld of Mayer Brown in Washington will represent the Fitzgeralds, and Kay H. Hodge of Stoneman, Chandler & Miller in Boston will represent the Barnstable school board and the school superintendent. The filings in the case are available at SCOTUSwiki at this site.


Nearly four decades after Congress enacted Title IX, the well-known law that forbids sex discrimination in schools and colleges getting federal funds, the Supreme Court faces the question whether Congress meant that law to wipe out constitutional claims by students or parents of sex bias in public school districts or state colleges. The issue arises in Fitzgerald, et al., v. Barnstable School Committee, et al.


Three years after the guarantee of legal equality was put into the Constitution, in the Fourteenth Amendment, Congress passed a law to enforce that guarantee.  The 1871 law, originally known as the Ku Klux Klan Act but now widely known simply as Section 1983, allows any citizen to sue any state or local official who deprives that citizen of rights under the Constitution or federal law.  That is the law that black children and their parents used to win desegregation of public schools in Brown v. Board of Education.

Only once in history — in 1984 — has the Court barred a claim of discrimination filed under Section 1983 because Congress had passed another law that it intended to be the exclusive way to remedy particular wrongs, displacing the remedies that had been available under the old law.  That case, Smith v. Robinson, involved a constitutional claim of discrimination against a handicapped student; Congress,e  the Court found, had provided a full, alternative remedy under a separate federal law, the Education of the Handicapped Act.

At a fundamental level, then, anyone claiming that Congress has pushed aside a constitutional remedy in favor of one based on a federal statute would seem to face a difficult task.  But the task has been anything but an easy one for federal courts as they have examined the relationship between Section 1983 and Title IX, the 1972 civil rights law guaranteeing equality of the sexes in federally funded education programs and institutions.  Three federal appeals courts have ruled that Title IX did not displace constitutional claims of sex bias in federally aided education, so the two kinds of challenges may go forward simultaneously but independently.  However, four other appeals courts have disagreed, deciding that Title IX is the only remedy still available when the claim of sex discrimination targets a school or college receiving federal money.  The issue apparently arises frequently in litigation.

The two provisions, however, are not identical: Section 1983 allows for lawsuits against individuals, such as school officials, accused of discriminating, but Title IX only allows suits against the school or college; Section 1983 only applies when the school or college is public – that is, run by state or local government, but Title IX also reaches private schools or colleges if they get federal money but has some significant exemptions.  Claims of bias can be broader when based on the Constitution’s guarantee of equality than if based on Title IX.  Individuals can bring lawsuits under either provision; the right to sue under Title IX is not written into that law, but the Supreme Court has ruled that such a right is implied in the statute, and thus exists.

It is quite common, therefore, for students or parents claiming sex bias at school to make claims under both the Constitution and Title IX, to maximize their chances for winning some remedy and perhaps, with the constitutional claim, a broader remedy.  That is what a Hyannis, Mass., couple, Lisa Ryan Fitzgerald and Robert Fitzgerald, did in April 2002 when they sued the local school district, the Barnstable School Committee, and Russell Dever, the school superintendent.

Their daughter, Jacqueline, was in the kindergarten at Hyannis West Elementary School during the 2000-2001 school year.  Her parents complained to school officials after Jacqueline told them that, every time she wore a skirt to school, an eight-year-old third grader, Briton Oleson, would force her to lift her skirt when they were on the bus, pull down her underpants, or spread her legs, while other students laughed at her.  Officials investigated, and offered various alternatives, such as putting Jacqueline on a different bus, or segregating younger students from older ones on the bus, but the Fitzgeralds rejected those proposals, saying they were a form of punishment of Jacqueline, not the boy who was harassing her. Instead, the Fitzgeralds asked that the boy be put on a different bus, or that an adult monitor ride the bus each day – proposals that school officials rejected.  So, the Fitzgeralds began driving Jacqueline to school themselves.

The boy, the parents complained, continued to harass Jacqueline in the hallway at school, so, ultimately, they sued under both Section 1983 and Title IX.   They sought money damages and court orders to protect their daughter.  A U.S. District Court judge refused to consider the constitutional claim, finding that Title IX provided the only remedy.  The judge then ruled against the Fitzgeralds on their Title IX claim.  The First Circuit Court affirmed on both points.  On the Title IX claim, the Circuit Court ruled for the School Committee, finding that the parents had not shown that the response of the officials to their complaints amounted to “deliberate indifference.”

Petition for Certiorari

The Fitzgeralds took their case on to the Supreme Court on March 3, 2008.  They did not challenge the ruling against them on Title IX; instead, the appeal was focused on whether Title IX had displaced entirely their right to sue for constitutional violations.  The sole question read: “Whether Title IX’s implied right of action precludes Section 1983 constitutional claims to remedy sex discrimination by federally funded educational institutions.”  The Circuit Court, the petition said, was wrong in reasoning that Title IX provided a “compehensive remedial scheme” so there was no recourse to Section 1983.

“Title IX,” the petition asserted, “offers no express private remedies at all.  Even assuming that Congress anticipated the subsequent recognition of private Title IX remedies by this Court, it is hardly likely that Congress intended those remedies – the contours of which it did not describe or define – to bar constitutional suits under Section 1983.  Indeed, the holding below turns Title IX on its head: that statute was intended to expand, not to contract, protections for victims of discrimination on the basis of sex.”

The appeal also stresses the conflict among the Circuit Courts on the issue.  “The courts of appeals are irreconcilably divided on the question whether Title IX precludes constitutional claims brought under Section 1983 that arise out of sex discrimination by federally funded educational institutions,” it says. Confusion now reigns, it adds. And, it went on, “holdings like the one below threaten to frustrate our nation’s long-standing policy against discrimination on the basis of sex.”

In response, the School Committee and Superintendent Dever opted to challenge review with an argument that the Section 1983 claim would not have succeeded even if the lower courts had allowed it to go forward.  Review by the Justices, it said, would have “no practical effect” because the Fitzgeralds’   constitutional challenge was “procedurally deficient.”

The Committee also contended that the Fitzgeralds’ were seeking to broaden the legal question at issue into a test of whether Title IX displaced every possible Section 1983 constitutional claims; the First Circuit, the opposing brief contended, had only ruled that Title IX displaced identical and thus duplicative claims.  “In asking the Court to broadly conclude that Title IX never precludes Section 1983 constitutional claims, the [Fitzgeralds] essentially seek an improper advisory opinion on a legal conclusion not made below.”

The Court granted review on June 9, and the case is now scheduled for oral argument at 11 a.m. on Tuesday, Dec. 2.

Merits Briefs

The merits briefs by the two sides continue the skirmishing over what is at stake before the Court.  The Fitzgeralds continue to insist that the only question is the relationship between Section 1983 and Title IX, and that the Court, if it rules that constitutional claims may go forward, should send the case back to lower courts.  They add that the School Committee is seeking to have the Supreme Court go ahead and rule against the constitutional claims on the merits.

The Committee, in turn, argues that the Fitzgeralds had a chance in District Court to make the broader claim that they now supposedly were asserting – that is, that school officials not only were indifferent to their complaints, but also had themselves engaged in discrimination against their daughter by treating her differently and less favorably than other students.  This “disparate treatment” claim, the brief says, was never asserted before, and thus is beyond the reach of the Supreme Court at this stage.  Still, the school board’s brief goes on to repeat its contention that, if the Court did reach the merits of the constitutional claim, it should rule for the school board.

Among the amici filing briefs in the case, the American Civil Liberties Union and the National Women’s Law Center, in a joint brief, asked the Court to make clear – if it ruled that students could not pursue Section 1983 claims -  that the ruling did not apply to employment discrimination claims.  That, they contend, involves a more complex inquiry.

The National School Boards Association and other education advocacy groups strongly support the Barnstable school board in the case.


The Court is unlikely to be distracted by the controversy over reaching, or avoiding, a ruling on the merits of the Fitzgeralds’ constitutional claims, nor is it likely to be diverted into analyzing the quality and breadth of the pleading that the parents did, or did not do, in the lower courts.  The facts in the case are egregious, and that could have some emotional appeal on the Fitzgeralds’ side, but not enough to swing the case definitively their way.

The central question in the case, while straightforward, is potentially difficult enough that the Court is likely to focus on that, and leave any residual questions for further review in the lower courts.

The Justices will have to analyze closely the differences between the two legal regimes and decide, among other things, whether Title IX review is truly comprehensive, given its internal limiting factors.  The fact that the Court does not easily – and does not often – displace constitutional lawsuits with alternative statutory schemes will probably counsel caution this time, too.   More than likely, whatever the Court decides will be as narrow as the Court can make it.  For example, it would be inclined, it seems, to indicate that it is not dealing with anything other than student-on-student harassment claims.