Sexual harassment claim under Title IX does not preclude equal protection claim under 42 U.S.C. 1983

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Fitzgerald v. Barnstable School Committee, 555 U.S. ___ (2009)

After investigation, both the Barnstable (Mass.) School Committee (the Committee) and the local police department concluded there was insufficient evidence to further pursue the complaints of a female kindergarten student that sexual harassment was taking place on the school bus. The parents of this student, Lisa and Robert Fitzgerald, felt that the ideas put forward by Barnstable school officials to stop whatever was taking place on the bus unfairly punished their daughter. They made alternative suggestions that focused on the boy whose alleged behavior created the problem. School officials did not act on the Fitzgeralds’ suggestions, and they began driving their daughter to school.

Nevertheless, the Fitzgeralds continued to hear from their daughter about harassment at school, and during that school year she had an unusual number of absences. They reported each incident to school officials but ultimately filed suit in federal court alleging that the Committee’s response to their allegations of sexual harassment had been inadequate and had allowed further harassment of their daughter. In addition to claiming a Title IX violation, the Fitzgeralds also presented a claim under 42 U.S.C. 1983, alleging violation of the Equal Protection Clause of the Fourteenth Amendment to the United States Constitution. The federal trial court dismissed the Section 1983 claim, holding that Title IX provided the sole avenue for addressing gender discrimination in educational institutions. The court granted judgment before trial to the Committee on the Fitzgeralds’ Title IX claim.

The Court of Appeals for the First Circuit affirmed the trial court ruling. Judgment for the Committee on the Title IX claim was appropriate, the court found, because the response of the Committee to the reported harassment had been objectively reasonable. The court also agreed that the Title IX claim precluded the Section 1983 equal protection claim. The Fitzgeralds appealed again, and the U.S. Supreme Court granted review.

The Supreme Court reversed the ruling of the First Circuit Court of Appeals.

Whether Title IX precludes the use of Section 1983 to address gender discrimination in the schools has been an issue of conflict among the nation’s federal circuits. Earlier Supreme Court cases have held that other federal statutory schemes, such as the Water Pollution Control Act, the Education of the Handicapped Act, and the Telecommunications Act of 1996, preclude the remedy of suits brought under Section 1983. However, these statutes all have extensive and detailed remedial schemes that are mandatory: allowing a claimant to circumvent these procedures and go straight to court with a Section 1983 claim would frustrate congressional intent that these “carefully tailored” schemes be followed. Title IX, conversely, has only one express enforcement mechanism: an administrative procedure by which the federal government can determine whether an institution is in violation of Title IX and whether to withdraw federal funds. The Court also recognized that Title IX has been found to have an implied right of private action, under which a complainant can file directly in court. Thus, allowing a Section 1983 action in conjunction with Title IX does not circumvent any remedial scheme.

In addition, the substantive rights protected by Title IX and the Equal Protection Clause diverge. Title IX exempts from its purview certain activities that could constitute violations of the Equal Protection Clause. For example, Title IX does not apply to military service schools or traditionally single-sex colleges, but the admissions policies of such institutions have been challenged successfully under the Equal Protection Clause. [See, e.g., digest of United States v. Virginia in “Clearinghouse,” School Law Bulletin 37 (Spring 2006): 2, 5–6—holding that the all-male admission policy at the Virginia Military Institute violated the Equal Protection Clause.]

Burdens of proof also differ under the statutes. Under Title IX, an entire school district can be found liable on proof that even one of its administrators acted with deliberate indifference to a sexual harassment claim; under Section 1983, however, the complainant must show that the indifference was a systemwide policy before the district could be held liable.

Finally, when Congress enacted Title IX in 1972 it was with the explicit understanding that it would be interpreted in accordance with Title VI of the Civil Rights Act of 1964. Title VI has been found to allow concurrent Section 1983 claims.

summarized by Ingrid M. Johansen

posted Fall 2008