He points out that, though the underlying case is about some pretty egregious student-on-student sexual harassment, the Court is "unlikely to be distracted by the controversy" and will instead remained focused on the narrow legal question for which the Court granted cert, which is, whether the availability of legal remedies under Title IX foreclose plaintiffs from simultaneously raising constitutional claims via 42 U.S.C. section 1983. He points out that, while a number of lower appellate courts have found 1983 claims preempted by Title IX, "only once in history – in 1984 – has the Court barred a claim of discrimination filed under Section 1983 because Congress had passed another law that it intended to be the exclusive way to remedy particular wrongs, displacing the remedies that had been available under the old law."
The Justices will have to analyze closely the differences between the two legal regimes and decide, among other things, whether Title IX review is truly comprehensive, given its internal limiting factors. The fact that the Court does not easily – and does not often — displace constitutional lawsuits with alternative statutory schemes will probably counsel caution this time, too. More than likely, whatever the Court decides will be as narrow as the Court can make it. For example, it would be inclined, it seems, to indicate that it is not dealing with anything other than student-on-student harassment claims.I agree that the Court tends to decide such issues as narrowly as possible. But can it justify a ruling that only applies to peer harassment cases under Title IX? Neither the statute nor its legislative history differentiates between those types of claims and other applications of the statute (for example, other manners of harassment and discrimination in the context of education and athletics). So its hard to imagine the reasoning the Court would rely on to justify treating them differently.