District Court Rules Constitutional Claims Preempted by Title IX

A Wisconsin district court judge recently dismissed a plaintiff's constitutional claims against a school district defendant as preempted by Title IX. The judge reluctantly relied on Doe v. Smith, a recent Seventh Circuit decision (blogged about here) that dismissed plaintiff's constitutional claims against a school board arising from peer harassment, holding that both due process and equal protection claims are preempted by Title IX.

I say reluctantly because the judge had this to say about Doe:

As a matter of first impression, I would be inclined to agree with plaintiffs that Title IX does not preempt any constitutional claims other than those asserting discrimination on the basis of sex. After all, the test of Sea Clammers [a Supreme Court case] is whether the statute provides “comprehensive” relief for the type of claim the plaintiff seeks to bring. How can Title IX provide any relief, much less comprehensive relief, for violations of rights that the statute does not protect?....

For example, the court of appeals has emphasized repeatedly that not all sexual harassment is discrimination because of sex. In one case, the court went as far as to say that sexual harassment based solely on “personal attraction” is not discrimination because of sex. And even assuming that sexual harassment is generally related to gender, not all physical abuse of students by teachers is sexual in nature.

What happens to the claim of a student who is a victim of severe harassment but who is unable to prove that the harassment or the school's failure to remedy it occurred because of her sex? Title IX could provide no relief to such a student. Of course, the due process clause does not require proof of a sex-based motive. Any sufficiently severe invasion of the student's person could be a potential due process violation regardless of motive, so long as the conduct was intentional. Further, a school administrator or school board could be held liable under the due process clause for an employee's abuse of a student if the plaintiff could otherwise satisfy the standards for municipal or supervisory liability. Thus, the effect of preemption in that case would be...to immunize a defendant who may have violated a student's constitutional rights.

The decision is: Baumgardt v. Wasau School District Board of Education, 2007 WL 582503(W. D. Wis. 2007).