Circuit Split Resolved – Supreme Court Allows Concurrent Title IX And Section 1983 Claims

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Circuit Split Resolved – Supreme Court Allows Concurrent Title IX And Section 1983 Claims:Fitzgerald v. Barnstable School Committee, 129 S.Ct. 788 (2009)

In a recent decision involving the judicial remedies available to victims of student-to-student sexual harassment, the Supreme Court expanded the rights of sex discrimination plaintiffs to proceed under multiple federal statutes. In the case of Fitzgerald v. Barnstable School Committee, an elementary school student and her parents filed suit against a school superintendent and the school committee based on defendants’ allegedly inadequate response to plaintiffs’ claims of sexual harassment. Plaintiffs further alleged that defendants’ failure to respond appropriately to their initial complaints of sexual harassment caused the minor plaintiff to suffer additional (and foreseeable) harassment. Plaintiffs sought recovery under 42 U.S.C. § 1983 for violation of their equal protection rights, and also claimed relief under Title IX (20 U.S.C. § 1681(a)). The United States District Court for the District of Massachusetts dismissed the Section 1983 claims on the grounds they were precluded by the comprehensive remedial scheme of Title IX. Later, following the completion of discovery, the District Court also granted defendants’ motion for summary judgment on plaintiffs’ Title IX claim. The defendants could not, the District Court ruled as a matter of law, be found deliberately indifferent absent evidence of severe, pervasive, and objectively offensive harassment that took place after defendants first learned of the offending conduct. The Court of Appeals for the First Circuit affirmed. But in a unanimous opinion written by Justice Alito, the Supreme Court reversed, putting to rest an issue that had split the Circuits for years: whether Title IX precludes a gender discrimination action under Section 1983.

The critical inquiry, the Supreme Court noted, was whether Congress intended the judicial remedy authorized by Title IX to coexist with the alternative civil rights remedy available under Section 1983. Typically, statutes with comprehensive remedial schemes evidence Congressional intent to preclude suits under other more generic statutes. Accordingly, the Supreme Court looked to the nature and extent of Title IX’s remedial scheme, noting first that Title IX does not have an administrative exhaustion requirement. Further, the only remedies available under Title IX are the withdrawal of federal funding from institutions that violate Title IX, and an implied private right of action. Title IX’s remedial scheme, reasoned the Supreme Court, stands in “stark contrast” to the more elaborate enforcement schemes found in other federal statutes. 

In addition, the Supreme Court explained the differences between the rights and protections guaranteed under Title IX and those guaranteed under the Equal Protection Clause of the Fourteenth Amendment. For example, a plaintiff can only recover under Title IX against an institution or program that receives federal funding; Title IX suits against school officials, teachers, and other officials are prohibited. Further, elementary and secondary schools are not subject to Title IX’s prohibition against discrimination in admissions. Finally, military service schools and traditional single-sex public colleges are exempt from all provisions of Title IX. Yet plaintiffs may bring viable equal protection claims against such persons and entities for some of the activities exempted by Title IX.

Based on the absence of a comprehensive enforcement scheme, as well as the divergent coverage between Title IX and the Equal Protection Clause, the Supreme Court concluded that the provisions of Title IX did not preclude the pursuit of concurrent Section 1983 claims. (Plaintiffs did not appeal the issue of deliberate indifference). The holding in the  Fitzgerald decision means that school districts must now be prepared to defend gender discrimination claims on more federal fronts. More significantly, school officials – teachers, principals, and other administrators – may now be held individually liable under the provisions of Section 1983 for their failure to protect students from peer-to-peer sexual harassment. This remedy may loom large in the future.