Wednesday, December 03, 2008

Fitzgerald Oral Argument Roundup

Yesterday the Supreme Court heard oral arguments in the Title IX preemption case, Fitzgerald v. Barnstable School Committee. For background, see our prior posts on the district court's decision, the appellate court's decision, the Supreme Court's grant of certiorari grant, and a preview of the oral argument.

The transcripts of yesterday's oral arguments are available here. Also, there's coverage in, among other places, the New York Times, the Associated Press, and Education Week.

From the transcript and press cited above, it appears that the Court's chief concern was whether the plaintiff's ability to sue under Section 1983 along with Title IX actually matters to the outcome of the case. Justice Ginsburg, for example, suggested that if the school board's response was not "deliberate indifference" under Title IX, it was also not a constitutional violation remediable via 1983. The plaintiffs' lawyer argued that the Constitution prohibits a broader range of sex discrimination than Title IX, such as, for example, decisions that have a disparate impact on one sex or the other, but the Justices seemed concerned that none of those areas were implicated in this particular case. So why, they wondered, should the Court decide that Title IX and Section 1983 cases can proceed simultaneously in a case where the additional Section 1983 remedy does not change the result? The best the plaintiff's counsel could do was to argue that the legal question is relevant, even though it's seemingly outcome-neutral here. The court of appeals could have relied on its Title IX analysis to conclude that no Equal Protection violation occurred either, but it didn't do that. Rather it said the 1983 claims were preempted. If that conclusion is wrong as a matter of law, then the Supreme Court should fix it, even if it means that the First Circuit will, ultimately, summarily decide that no constitutional violation occurred.

A decision will be forthcoming sometime before the end of the Term in June.