Fitzgerald v. Barnstable School Committee, 555 U.S. 246 (2009)

The Supreme Court granted certiorari in this case, which involves student-on-student sexual harassment in an elementary school, on June 9, 2008, and will hear oral argument in December 2008.  The Court will resolve a circuit court split on the question of whether a student who brings a lawsuit for sexual harassment under Title IX can also bring a constitutional claim for denial of equal protection under the federal statute 42 U.S.C. § 1983 (generally called “section 1983”).  The U.S. Court of Appeals for the First Circuit held that the Title IX claim precluded the constitutional claim, and the AAUP joined the National Women’s Law Center and the ACLU in submitting an amicus brief (.pdf) to the Supreme Court arguing that the constitutional claim should be available as well.

Title IX states: “No person . . . shall, on the basis of sex, be excluded from participation in, be denied the benefits of, or be subjected to discrimination under any education program or activity receiving Federal financial assistance.”  20 U.S.C. § 1681.  Section 1983 provides: “Every person who, under color of any statute . . . of any State . . . subjects, or causes to be subjected, any . . . person . . . to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured in an action at law . . . .”  42 U.S.C. § 1983.  The school district in this case argued that the fact that the student could bring a claim under Title IX meant that she was precluded from also bringing a claim under section 1983.

The amicus brief argues that because section 1983’s protections are much broader than those provided by Title IX, and because Congress did not show a clear intent in Title IX to preclude parallel equal protection claims, students suing under Title IX should not be barred from bringing a separate equal protection claim under section 1983.  For instance, in cases of student-on-student sexual harassment claims brought under Title IX, plaintiffs must show that the educational institution had actual notice of the discrimination and that it responded with “deliberate indifference.”  Similarly, plaintiffs can obtain damages under Title IX only where the harassing behavior was “so severe, pervasive, and objectively offensive that it denies its victims the equal access to education that Title IX is designed to protect.”  An equal protection claim, by contrast, need only show that female victims and male victims of harassment were treated differently in investigations or in the types of remedies they received, even if the female victims were not denied access to education.  Moreover, the educational institution or other perpetrator need not have acted with deliberate indifference; plaintiffs who demonstrate that the educational institution had a policy or practice of being more responsive to male victims’ complaints than to female victims’ complaints can state a claim under Section 1983.

The AAUP has consistently championed the rights of all persons in the educational context to be free from discrimination and harassment and to have equal access to educational opportunities.  For instance, in 2003, the AAUP signed onto amicus briefs in the landmark Grutter and Gratz affirmative action cases, recognizing that a diverse student body was vital to the continued health of higher education and that any attempt to diversify the professoriate would necessarily rest in part on the success of efforts to diversify the student body.  The AAUP’s policies also explicitly address sexual harassment, including the sexual harassment of students, as in Sexual Harassment: Suggested Policy and Procedures for Handling Complaints and the Association’s statement on Professional Ethics.  In addition, the AAUP has consistently opposed limitations on constitutional claims and remedies when those limitations conflict with the rights recognized by the Supreme Court or Congress, as in Crawford and Engquist, described elsewhere on this page.

Update: On January 21, 2009, in a unanimous opinion written by Justice Alito, the Supreme Court reversed the First Circuit and held that plaintiffs suing for gender discrimination under Title IX may also assert constitutional claims under Section 1983.  The Court reviewed the history of Title IX and found no evidence that Congress intended that legislation to preclude constitutional claims to redress gender discrimination under Section 1983.  The Court noted that Title IX is modeled after Title VI of the Civil Rights Act, which addresses racial discrimination in education, and Title VI has long been held not to preclude parallel and concurrent Section 1983 claims.  Therefore, the Court reasoned, “Title IX was not meant to be an exclusive mechanism for addressing gender discrimination in schools, or as a substitute for § 1983 suits as a means of enforcing constitutional rights.”  The Court therefore remanded the case, allowing claimants to proceed on both their Title IX and the Section 1983 claims.