Seventh Circuit Weighs in on Preemption

Sometimes a defendant's conduct may violate both a civil rights statute and the Equal Protection Clause of the U.S. Constitution. When this happens, the doctrine of preemption determines whether the availability of remedies for the statutory violation forecloses a remedy for constitutional violation. The theory behind this doctrine is that modern civil rights statutes like Title IX all came along well after Congress passed the statute that provides a private right of action for constitutional violations -- 42 U.S.C. section 1983 -- so Congress may have intended the remedies contained in modern statutes to supplant the preexisting remedies available via 1983. It seems like a technical distinction, but it could make a big difference to this John Doe plaintiff in Illinois.

John Doe alleged that he was sexually molested by Brady Smith, the Dean of Students at his middle school in Champaign. Because of Smith's apparent pattern of sexually seducing numerous boys, all of whom where black, Doe brought suit under Title VI of the Civil Rights Act (prohibiting race discrimination in public accommodations) as well as Title IX , against the school district, school officials, and Brady himself. He also used Section 1983 to sue the same defendants for violating his constitutional rights under the Equal Protection Clause.

The district court granted the defendants' motion for summary judgment on the constitutional claims. The judge reasoned that the comprehensive set of remedies available under Title IX and Title VI proves that Congress intended to foreclose all constitutional claims based on the same conduct. Doe's statutory claims did, however, go to trial, but a jury did find sufficient facts to impose liability on any of the defendants under either statute.

But on appeal, the Seventh Circuit clarified an important distinction among the various defendants. The judges reasoned that as to the school district and the school officials, Title IX provides a comprehensive remedy and thus preempts the 1983/constitutional claims against them. Title IX (along with Title VI) seeks to prevent federal funds from supporting schools with discriminatory policies and practices. As such, the available statutory remedies -- potential withdrawal of federal funds plus the opportunity to seek damages against the school district -- should sufficiently protect plaintiffs whose constitutional rights are simultaneously violated when a school district or its personnel "officially" engage in a discriminatory policy or practice.

But the heart of Doe's allegations against Smith, on the other hand, did not charge him with officially engaging in a discriminatory practice or policy, it was his individual conduct that is at the heart of Doe's claims against him. For this reason, the Seventh Circuit decided that the 1983/constitutional claims against Smith himself were not preempted by Title IX. The remedies available under Title IX aim to correct and prevent official discriminatory policies and practices, but 1983 remains the appropriate available remedy for constitutional violations committed by individual defendants.

One last, law-geeky point. To be liable for a constitutional violation under 1983, a defendant must be a "state actor" acting "under color of state law." In other words, "official." Does this requirement put plaintiffs in a catch-22? In other words, to satisfy the state action/color of state law requirement, must plaintiffs allege that the defendant's conduct was official (and thus preempted) as opposed to individual? The Seventh Circuit says no, at least not in Smith's case. Smith was clearly relying on his official capacity to gain access to Doe and other victims, where he then acted unofficially in molesting them. Doe is now free to prove that the acts of molestation amounted to discrimination on the basis of sex and/or race. If Doe succeeds, a jury will have to find Smith individually liable for violating Doe's constitutional rights.