Law Review Article Addresses School Officials' Individual Liability Post-Fitzgerald

An article in the recent issue of the Wisconsin Journal of Law, Gender and Society examines the Supreme Court's 2009 decision in Fitzgerald v. Barnstable School Committee, which held that Title IX does not preclude a concurrent claim for Equal Protection violations under 42 U.S.C. 1983. The author, attorney Jennifer Kirby Tanney, explains that one potential consequence of this ruling is that school officials may be held individually liable for violations of Title IX, including in the peer harassment context. This is because while Title IX only covers institutions and not individuals, the 1983 remedy allows plaintiffs to sue individual defendants unless immunity applies. Tanney argues, however, that while the Court was right to hold that Title IX does not preclude relief under 1983 as a general matter, the Court should not in future cases extend this holding to allow for the individual liability of teachers and administrators, a consequence she argues that Congress did not intend.

For more see: Jennifer Kirby Tanney, A Back Door to Individual Title IX Liability? The Implications of Fitzgerald v. Barnstable School Committee on the Liability of Teachers and Administrators for Peer-to-Peer Harassment, 26 Wis. J. Law, Gender & Soc'y 23 (2011).

UC Davis Officials Do Not Have Immunity from Wrestlers' Suit

Mansourian v. Regents is the case against University of California at Davis in which former female wrestlers challenge the university's decision in 2000 that women would no longer be eligible to participate in varsity wrestling team. The plaintiff's Title IX claims against the university have been litigated in the district and appellate court, and are proceeding toward trial. (For more background, see prior posts here, here, and here.) The plaintiff also filed claims against several university officials under 42 U.S.C. 1983 (the statute that provides a cause of action for constitutional violations) claiming that the officials violated their rights under the Equal Protection Clause. These claims were initially dismissed as preempted by the Title IX claim, but reinstated after the Supreme Court decided in Fitzgerald v. Barnstable School District that Title IX and 1983 claims could proceed simultaneously.

So the university officials --the former chancellor, the former associate vice chancellor, the then- and current athletic director, and a former associate athletic director -- tried a different argument to get those claims thrown out of court -- qualified immunity. Under this doctrine, individuals cannot be personally liable for unconstitutional conduct if the law did not clearly forbid the conduct at the time. Recently, however, the district court denied this motion and refused to let the officials out of the case, after determining that the law requiring equal opportunity in athletics was settled at the time, leaving the officials no defense that they didn't know what they were doing violated plaintiff's rights.

The only thing left for plaintiffs to do is to prove their factual allegations at trial, which is scheduled for April.

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.

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.

Fitzgerald v. Barnstable School Committee Oral Argument Tomorrow

Lyle Denniston at SCOTUSBlog has a comprehensive preview about the Title IX case that will be argued before the Supreme Court tomorrow.

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."

Denniston's prediction:

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.

Oral Arguments Scheduled in Fitzgerald

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.

Supreme Court Will Resolve Circuit Split on Title IX's Preemption of 1983 Claims

The Supreme Court just announced that it will review the First Circuit's decision in Fitzgerald v. Barnstable School Committee. As you may recall from prior posts (see here and here) the dispute in this case was whether the school district responded adequately to the sexual harassment of a kindergarten girl by a third-grade boy who rode the same bus. The First Circuit held that the school district satisfied its obligation under Title IX to avoid "deliberate indifference" to the kindergartner's plight once the harassment became known to appropriate officials -- even though the district did not suspend the boy from the riding the bus. In addition, the First Circuit refused to consider the plaintiffs' constitutional claims filed via the remedial statute, 42 U.S.C. 1983, holding that the potential availability of relief under Title IX preempts additional, constitutional claims. The plaintiffs filed a petition for certiorari (review by the Supreme Court), which the Court granted today.

The circuit split on this issue clearly contributed to the Court's decision to grant cert. The Sixth, Eighth, and Tenth Circuits all allow plaintiffs to bring both Title IX and 1983/constitutional claims for the same conduct. See Communities for Equity v. MHSAA, 459 F.3d 676 (6th Cir. 2006); Crawford v. Davis, 109 F.3d 1281, (8th Cir. 1997); Seamons v. Snow, 84 F.3d 1226 (10th Cir. 1996). The First, Second, Third, and Seventh Circuits have all held that Title IX preempts 1983/constitutional claims. Fitzgerald v. Barnstable Sch. Comm., 504 F.3d 165 (1st Cir. 2007); Bruneau v. S. Kortright Cent. Sch. Dist., 163 F.3d 749 (2d Cir. 1998); Williams v. Sch. Dist. of Bethlehem, 998 F.2d 168 (3d Cir. 1993); Waid v. Merrill Area Pub. Sch., 91 F.3d 857 (7th Cir. 1996).

The availability of both Title IX and constitutional remedies is important to sexual harassment plaintiffs like the Fitzgeralds because constitutional claims are not subject to the case law limiting liability to cases involving "deliberate indifference." Moreover, unlike Title IX claims, which may only proceed against institutions, 1983 plaintiffs may sue individuals who were acting "under color of law" when violating the plaintiff's constitutional rights. Lastly, some courts have held that Title IX plaintiffs are not entitled to punitive damages, a remedy that 1983 allows.

Stay tuned for the Court's resolution of this important question.

h/t to Paul Secunda. See his post at Workplace Prof Blog here.

UC Davis Athletes' Lawsuit Survives Motion to Dismiss

In July, female athletes filed a lawsuit challenging the inequitable distribution of athletic opportunities at UC Davis. As we noted then, women make up almost 56% of the student body but receive only 50% of the athletic opportunities. This ~6% disparity, we said, was "very close to the generally-accepted 'within 5%' benchmark for compliance with prong one" -- raising the question (and the opportunity for valuable judicial precedent) about how close a school's percentages have to be to satisfy prong one.

Last week a federal judge in California denied UC Davis's motion to dismiss, reasoning that proportionality question presents an issue of fact that is improper to resolve before discovery and formal fact-finding take place. Specifically, the judge left open the possibility that

Plaintiffs may be able to offer evidence that the disparity is greater than that disclosed by UCD. Plaintiffs may also be able to present evidence that a 6% disparity has a disproportionate impact on women enrolled at UCD due to the size of its enrollment and athletic program; this disproportionate impact may affect the court's analysis of whether the athletic opportunities are “substantially proportionate.”

The judge did, however, grant UC Davis's motion to dismiss plaintiffs' claims under 42 U.S.C. 1983 that the inequitable distribution of athletic opportunities violated the Equal Protection clause as well as Title IX. Courts are split on the question of whether Title IX preempts claims under 1983, but many courts, including this one, believe that Title IX's remedies are all Congress intended plaintiffs to have.

12/19 update: For more on the circuit split regarding 1983 preemption, see this tremedously helpful post.

Decision is: Brust v. Regents of the University of California, 2007 WL 4365521 (Dec. 12, 2007).