Fitzgerald v. Barnstable School Committee

Since it was passed in the wake of the Civil War as part of the Civil Rights Act of 1871, 42 U.S.C. § 1983 (“§ 1983”) has provided a cause of action for enforcement under the Equal Protection Clause for constitutional rights violated by individuals operating under state authority. In 1972, Congress passed Title IX of the Education Amendments of 1972, which courts, despite no explicit right of action in its text, have interpreted to provide a right of action for sex discrimination perpetrated by federally funded educational institutions. To successfully bring a Title IX claim, an individual must prove the educational institution acted with deliberate indifference to sexual harassment. Courts have also held that successful § 1983 claims similarly require showing that the governmental entity or officials responded to the sexual harassment with deliberate indifference.

Scope and Interpretation of Title IX

Petitioners Lisa Ryan Fitzgerald and Robert Fitzgerald (the “Fitzgeralds”) argue that there is nothing in the text of Title IX that suggests Congress intended it to be the exclusive remedy for sex discrimination claims against federally funded education programs. The Fitzgeralds recognize that the standard for liability is the same for both Title IX and § 1983, but argue that the text of Title IX plainly shows that its purpose was to expand, not foreclose, the protections afforded under § 1983.

Respondents Barnstable School Committee and Russell Dever (“Barnstable”), however, focus on the fact that the standard of liability is the same under both statutes, making the Fitzgeralds’ Title IX and § 1983 claims “virtually identical.” Barnstable argues that since the Fitzgeralds failed to prove this standard with respect to their Title IX claim, litigation on the same issue should be precluded in the separate § 1983 claim.

The Fitzgeralds counter that despite sharing a standard of liability, Title IX and the Equal Protection Clause, as enforced by § 1983, differ in their coverage. Title IX applies only to educational institutions receiving federal funds, while § 1983 applies to claims against any “state actor,” regardless of its receipt of federal funds, and thus could apply to teachers or administrators as well as schools.

However, Barnstable argues that the limitations of Title IX in fact prove why § 1983 should not also apply to the same claims. Barnstable argues that the Court should treat § 1983 and Title IX claims differently because Title IX applies exclusively to educational institutions—a narrower category than that of a § 1983 claim, which can apply to any individual state actors. Barnstable points out that courts have recognized academic institutions’ interests in authority, discipline, and a degree of autonomy, and generally have granted these institutions greater discretion than individual state actors in these areas.

Congressional Intent Behind Title IX

Both parties agree that “what Congress intended” will determine whether the Fitzgeralds are precluded from bringing § 1983 claims in this case. However, each party interprets Congress’s legislative record differently.

The Fitzgeralds argue that the Court should not read a modern civil rights statute to prevent a petitioner from enforcing rights under § 1983 unless Congress clearly indicated such intent. Title IX does not expressly provide a private right of action, instead specifying administrative remedies. Because Title IX does not contain an explicit private right of action, any private right of action in Title IX was read into the statute by the courts. The Fitzgeralds find it impossible that Congress could have intended Title IX to take the place of § 1983 for all claims of sex discrimination in educational institutions, but then left it to the courts to define the existence of that right.

The Fitzgeralds also rely upon legislative history to prove that Title IX was modeled on Title VI of the Civil Rights Act of 1964, which provided an implied right of action for racial discrimination, but did not limit additional § 1983 claims alleging further violations of the constitutional right to Equal Protection. The Fitzgeralds point out that Senator Birch Bayh, Title IX's sponsor, specifically referenced the parallel between remedial provisions of Title VI and Title IX in the legislative record, indicating that Title IX gave “the federal Government the same power—no more, no less—to prevent discrimination on the basis of sex that the Federal Government now has to prevent discrimination on the basis of race.” The Fitzgeralds maintain that this congressional testimony is so compelling that the case can be decided on the basis of the clear congressional intent alone.

Barnstable disagrees with Fitzgeralds’ analogies between Title IX and Title VI. Barnstable cautions that, “as an overarching matter, this Court has warned that excessive focus on Title VI in interpreting Title IX is misplaced.” . Barnstable notes that, “although two statutes may be similar in language and objective, we must not fail to give effect to the differences between them.” Barnstable also points out that fundamental differences between race and gender discrimination prevents a useful comparison between the two statutes. Barnstable argues that an Equal Protection claim made concerning race discrimination is usually treated with the strictest standard of review by courts, while at the time Title IX was written, the courts were applying the lowest standard of review for Equal Protection gender-based claims. Therefore, Barnstable contends that each statute’s interplay with § 1983 cannot be judged along the same parameters.

Application of Prior Precedent

Barnstable argues there is a long and well-accepted history of statutory provisions limiting constitutionally-based claims. Barnstable cites “Bivens actions,” which provide a means of bringing constitutional torts against federal officers, and argues they provide an analogy to § 1983 claims, which provide for constitutional torts against state officers. Barnstable notes that in multiple cases, the Supreme Court has decided not to apply additional Bivens remedies when Congress has provided an alternative remedial scheme for constitutional violations.

However, the Fitzgeralds counter Barnstable’s Bivens analogy by citing Supreme Court cases that have held that Bivens actions are available against federal officers, even though a separate statutory remedy could have been brought against the United States. The Fitzgeralds argue that the Court has recognized that the Bivens remedies serve a special function and are more effective than other remedies because they facilitate bringing claims against individuals.

Barnstable also references Smith v. Robinson, 468 U.S. 992 (1984), in which the Supreme Court held that a sufficiently comprehensive remedial statute may preclude § 1983 constitutional claims that are virtually identical to those that could be brought under the statute. Barnstable argues that the Fitzgeralds’ Title IX claims are identical to the § 1983 claims, because both claims cite the same factual allegations and are based on the same theory of liability.

The Fitzgeralds acknowledge that, in Smith v. Robinson, a constitutional claim is foreclosed by a statutory remedy, but distinguish the case on the grounds that the statute Smith interpreted, the Education of the Handicapped Act ("EHA"), has a more elaborate administrative scheme than Title IX and, unlike Title IX, an affirmative right of action. Petitioners stress that the Supreme Court has never held that § 1983 claims are precluded by an implied right of action. Unlike the EHA, Title IX does not spell out a detailed set of remedies, and therefore, according to the Fitzgeralds, does not create the sort of comprehensive remedy that could support § 1983 preclusion.