The U.S. Supreme Court hears arguments on Tuesday in a case that will determine whether Title IX provides the exclusive legal remedy for claims of sex discrimination against schools.
The appeal in Fitzgerald v. Barnstable School Committee (Case No. 07-1125) is being watched closely by civil rights groups, on one side, and school groups on the other. The question is whether Title IX of the Education Amendments of 1972, which prohibits discrimination on the basis of sex in federally funded education programs, precludes victims from also suing under a broader federal civil rights law known as Section 1983. That law, dating from the Reconstruction era, allows plaintiffs to sue individuals who violate their constitutional or statutory rights under color of law.
The case arises from claims that a kindergarten girl was subjected to sexual harassment by a 3rd grade boy while riding the bus to school in the 2000-01 academic year. Each time the girl wore a dress to school, the boy allegedly forced her to lift her skirt, pull down her pants, and spread her legs, according to court papers.
The 4,460-student Barnstable, Mass., school district and local police investigated the charges, but the police found there was insufficient evidence to proceed with any criminal action against the 3rd grader, the parents’ court papers say.
The district offered to place the girl on another bus, a proposal that dissatisfied her parents, who requested that the boy be removed from their daughter’s bus.
The school district says in its brief that because it had trouble substantiating the kindergartner’s allegations, offering to place her on another bus was a reasonable response to the alleged peer harassment.
The parents sued the district under both Title IX and Section 1983. Both a federal district court and the U.S. Court of Appeals for the 1st Circuit, in Boston, ruled against their Title IX claim and held that the Section 1983 claim was foreclosed by Title IX.
The 1st Circuit court noted in its 2007 opinion that besides itself, three other federal circuit courts have ruled that Title IX forecloses Section 1983 constitutional claims. But three other federal circuit courts have ruled that both Title IX and Section 1983 claims may both be raised in a sex-discrimination suit.
In a friend-of-the-court brief filed on the parents’ side by the American Civil Liberties Union and the National Women’s Law Center, the groups argue that Congress had no intention of precluding constitutional claims for sex discrimination when it enacted Title IX in 1972.
“Title IX was intended to function independently from and as a supplement to the equal-protection clause” of the 14th Amendment, the groups’ brief says. “Title IX and the Constitution reach different activities and cover different actors.”
In the lone friend-of-the-court brief filed on the side of the Barnstable school district, the National School Boards Assocation, the American Council on Education, and the American Association of School Administrators stress that the “Section 1983 remedy is simply unnecessary” for plaintiffs alleging sex discrimination because Title IX “provides a comprehensive and efficient remedy against schools that are deliberately indifferent to incidents of student harassment.”
Interestingly, the Bush administration did not file a brief in the case, even though the federal government typically takes an active interest in Supreme Court cases that interpret federal civil rights laws.
The case is set for argument at 11 A.M. on Dec. 2. I’ll file a report in the blog and in Education Week.
A version of this news article first appeared in The School Law Blog.