As our regular readers know, the Supreme Court has a Title IX case on the docket this Term -- its first since Jackson in 2005. Earlier this week, the Court announced that oral arguments in Fitzgerald v. Barnstable School Committee have been set for Tuesday, December 2.
The legal issue in this case is whether plaintiffs like the Fitzgeralds -- whose daughter was sexually harassed on the school bus -- can claim that the school district violated their daughter's rights under the Constitution's Equal Protection Clause by bringing a lawsuit under 42 U.S.C. 1983, or whether the possibility of a 1983 claim is preempted by the remedy provided by Title IX. (The issue is described remarkably well in this article in the Cape Cod Times, as well as in our prior posts about this case.) The National Women's Law Center recently filed an amicus brief arguing that 1983 was passed to give plaintiffs access to the courts for violations of their constitutional rights and should remain available to plaintiffs absent a clear indication that Congress has intended to replace that remedy with an identical one provided in another statute. While Title IX and the Equal Protection Clause overlap in some of the ways it protects plaintiffs from certain forms of sex discrimination by some defendants, Title IX's coverage and remedial scheme is sufficiently different from the private enforcement of the Equal Protection Clause. Thus, Congress could not have intended for Title IX to preempt plaintiffs' access to remedies for constitutional violations under 1983. We'll have to wait until December to see if Justices seem persuaded to agree.
P.S. Title IX Blog's fondest wish is to live-blog an Oral Argument at the Supreme Court and would be eternally grateful to anyone out there who can score a ticket to the gallery.