Monday, June 09, 2008

Supreme Court Will Resolve Circuit Split on Title IX's Preemption of 1983 Claims

The Supreme Court just announced that it will review the First Circuit's decision in Fitzgerald v. Barnstable School Committee. As you may recall from prior posts (see here and here) the dispute in this case was whether the school district responded adequately to the sexual harassment of a kindergarten girl by a third-grade boy who rode the same bus. The First Circuit held that the school district satisfied its obligation under Title IX to avoid "deliberate indifference" to the kindergartner's plight once the harassment became known to appropriate officials -- even though the district did not suspend the boy from the riding the bus. In addition, the First Circuit refused to consider the plaintiffs' constitutional claims filed via the remedial statute, 42 U.S.C. 1983, holding that the potential availability of relief under Title IX preempts additional, constitutional claims. The plaintiffs filed a petition for certiorari (review by the Supreme Court), which the Court granted today.

The circuit split on this issue clearly contributed to the Court's decision to grant cert. The Sixth, Eighth, and Tenth Circuits all allow plaintiffs to bring both Title IX and 1983/constitutional claims for the same conduct. See Communities for Equity v. MHSAA, 459 F.3d 676 (6th Cir. 2006); Crawford v. Davis, 109 F.3d 1281, (8th Cir. 1997); Seamons v. Snow, 84 F.3d 1226 (10th Cir. 1996). The First, Second, Third, and Seventh Circuits have all held that Title IX preempts 1983/constitutional claims. Fitzgerald v. Barnstable Sch. Comm., 504 F.3d 165 (1st Cir. 2007); Bruneau v. S. Kortright Cent. Sch. Dist., 163 F.3d 749 (2d Cir. 1998); Williams v. Sch. Dist. of Bethlehem, 998 F.2d 168 (3d Cir. 1993); Waid v. Merrill Area Pub. Sch., 91 F.3d 857 (7th Cir. 1996).

The availability of both Title IX and constitutional remedies is important to sexual harassment plaintiffs like the Fitzgeralds because constitutional claims are not subject to the case law limiting liability to cases involving "deliberate indifference." Moreover, unlike Title IX claims, which may only proceed against institutions, 1983 plaintiffs may sue individuals who were acting "under color of law" when violating the plaintiff's constitutional rights. Lastly, some courts have held that Title IX plaintiffs are not entitled to punitive damages, a remedy that 1983 allows.

Stay tuned for the Court's resolution of this important question.

h/t to Paul Secunda. See his post at Workplace Prof Blog here.