January 21, 2009: Abuse and Harassment - Title IX does not preclude 1983 action alleging unconstitutional gender discrimination in schools--Supreme Court Decision Reversing the First Circuit, the United States Supreme Court held that Title IX does not preclude a 42 U.S.C.A. 1983 action alleging unconstitutional gender discrimination in schools. Title IX, 20 U.S.C.A. 1681(a), prohibits gender discrimination by education programs receiving federal financial assistance. Section 1983 provides for liability on the part of any person who, under color of any statute, ordinance, regulation, custom, or usage of any State deprives a person of rights, privileges, or immunities secured by the Constitution and laws.
The action was brought against a school committee by parents who alleged that their daughter, a kindergartener, was sexually harassed on a school bus, and that the school system's response was inadequate. The parents asserted, inter alia, 1983 claims for violations of the Equal Protection Clause. The Court of Appeals concluded that Congress saw Title IX as the sole means of vindicating the constitutional right to be free from gender discrimination perpetrated by educational institutions. That decision deepened a circuit conflict.
Justice Alito wrote for a unanimous Supreme Court. He said that, under Supreme Court precedent, if Congress intended a statute's remedial scheme to be the exclusive avenue through which a plaintiff may assert the claim, 1983 claims are precluded. In those cases in which the 1983 claim is based on a statutory right, evidence of such congressional intent may be found directly in the statute creating the right, or inferred from the statute's creation of a comprehensive enforcement scheme that is incompatible with individual enforcement under 1983. In cases in which the 1983 claim alleges a constitutional violation, lack of congressional intent may be inferred from a comparison of the rights and protections of the statute and those existing under the Constitution. Where the contours of such rights and protections diverge in significant ways, it is not likely that Congress intended to displace 1983 suits enforcing constitutional rights.
Turning to Title IX, Justice Alito said that its only express enforcement mechanism was an administrative procedure resulting in the withdrawal of federal funding from institutions that are not in compliance. In addition, the Supreme Court had recognized an implied private right of action. Those remedies stood in stark contrast to the unusually elaborate, carefully tailored, and restrictive enforcement schemes of the statutes at issue in Sea Clammers, Smith, and Rancho Palos Verdes. Unlike those statutes, Title IX had no administrative exhaustion requirement and no notice provisions. Under its implied private right of action, plaintiffs could file directly in court, and could obtain the full range of remedies. As a result, parallel and concurrent 1983 claims would neither circumvent required procedures nor allow access to new remedies.
A comparison of the substantive rights and protections guaranteed under Title IX and under the Equal Protection Clause gave further support to the conclusion that Congress did not intend Title IX to preclude 1983 constitutional suits. Title IX's protections were narrower in some respects and broader in others. Because the protections guaranteed by the two sources of law diverged in this way, the Supreme Court could not agree with the Court of Appeals that Congress saw Title IX as the sole means of vindicating the constitutional right to be free from gender discrimination perpetrated by educational institutions.
In light of the divergent coverage of Title IX and the Equal Protection Clause, as well as the absence of a comprehensive remedial scheme, Justice Alito concluded that Title IX was not meant to be an exclusive mechanism for addressing gender discrimination in schools, or a substitute for 1983 suits as a means of enforcing constitutional rights. This conclusion was consistent with Title IX's context and history.
Because no court had addressed the merits of the parents' constitutional claims or even the sufficiency of their pleadings, the Supreme Court remanded the case for further proceedings. (Reversing and remanding Fitzgerald v. Barnstable School Commitee)
