Breaking News: Supreme Court Holds Title IX DOES NOT PRECLUDE 1983 Claims

I have to teach in a few minutes, so for now I can only post a link --

Reversing the First Circuit, the Supreme Court held today in Fitzgerald v. Barnstable School Committee that an available remedy for sex discrimination under Title IX does not preclude a plaintiff from seeking to remedy that sex discrimination by suing also (or instead) under 42 U.S.C 1983, the private right of action for constitutional violations.

Oh and I guess I also have time to say that the decision was unanimous and written by Justice Alito.

More later!

Update: OK, I'm back. I had to double check, in case I was hallucinating earlier, but it is still true that today the Supreme Court issued a unanimous, pro-plaintiff decision and that it was authored by one of its most conservative Justices. Going forward, courts will not be able to quickly dismiss constitutional claims addressing sex discrimination in educational settings by simply invoking the manta of preemption.

Specifically, the Court based its conclusion that 1983 claims are not preempted by Title IX on comparison to prior cases in which preemption was found. Those cases all involved statutes with "complex" and "elaborate" and "highly detailed" remedial schemes that evidenced Congress's intent that those statutory remedies supplant existing remedies available under 1983. Title IX, on the other hand, does not contain a comprehensive remedial scheme. The statute itself only expressly provides for agency enforcement and a penalty of withdrawal of federal funds; indeed, the authority it provides to private enforcement exists only by implication. Consequently, there is no evidence that Congress intended Title IX to limit, by serving as an exclusive alternative to, remedies that already existed at the time the law was passed.

As further support for its conclusion that Congress did not intent Title IX remedies to preempt 1983, the Court noted that the scope of rights and protections afforded by Title IX on the one hand and 1983/Equal Protection Clause on the other are overlapping but not identical. For example, the Title IX covers private schools that accept federal funds, while the Equal Protection Clause covers public schools. On the other hand, Title IX only applies to educational institutions, while the Equal Protection Clause allows suits against institutions and individuals alike. And even where both laws apply, conduct that may violate one does not necessarily violate the other; for example, harassment is only actionable under Title IX if school officials are deliberately indifferent and have actual notice, while harassment can violate the Equal Protection Clause if it is part of an official "custom, policy, or practice." With so much difference between the two sources of law, it is hard to imagine that Congress wanted Title IX to operate to the exclusion of 1983's remedy for constitutional violations.

Lastly, the Court addressed the concern, which it noted during oral argument, that the plaintiffs in this case would not actually benefit from a 1983 claim given their Title IX claim had been dismissed on the merits. Appropriately, rather than engaging in speculation about what arguments the Plaintiffs could have made under 1983 had that claim not been preempted, the Court noted simply that "no court has addressed the merits of their constitutional claims or even the sufficiency of their pleadings [under 1983]." In so noting, the Court further reinforced the holding of today's decision: that a plaintiff has the right to pursue both Title IX and 1983 claims and have both claims decided on their merits.