U.S. Supreme Court Holds Title IX Does Not Bar Private § 1983 Lawsuit Against Public Educational Institutions, Their Officials and Employees
On January 21, 2009, in Fitzgerald v. Barnstable School Committee, the United States Supreme Court finally clarified whether a plaintiff could bring a claim for gender discrimination against a public educational institution under 42 U.S.C. § 1983 despite the existence of the comprehensive remedial scheme enacted by Congress in Title IX of the Education Amendments of 1972. While the U.S. Courts of Appeal for the Sixth, Eighth and Tenth Circuits had held that such a remedy existed, the Second, Third and Seventh Circuits had refused to recognize such a concurrent and powerful remedy finding that Title IX precluded an independent cause of action under § 1983. The Supreme Court’s ruling significantly expands the arsenal available to plaintiffs’ attorneys seeking to pressure educational institutions to provide equal treatment to students of both genders.
The Fitzgerald case involved claims that a female kindergarten student had been subjected to harassment and bullying behavior of a sexual nature while on a school bus and later at school. The parents alleged that the school district, which had found that the evidence supporting the parents’ complaints was inconclusive, failed to provide an effective response to their numerous complaints. They alleged that the district’s response penalized their daughter instead of the boy who was the alleged harasser. The parents brought a private action directly under Title IX and also under § 1983 for alleged violations of Title IX and the Equal Protection Clause of the Fourteenth Amendment. The federal district court dismissed all claims on a motion to dismiss. On appeal, the U.S. Court of Appeals for the First Circuit affirmed finding that the Title IX claim failed because the school district’s response had been objectively reasonable. The First Circuit also found that Title IX’s private remedy was “sufficiently comprehensive” to preclude the parents’ § 1983 claims. Thus, the First Circuit held that “Congress saw Title IX as the sole means of vindicating the constitutional right to be free from gender discrimination perpetrated by educational institutions.”
In considering whether a separate cause of action existed under § 1983 for gender discrimination, the Supreme Court stated that “[t]he crucial consideration is what Congress intended.” If Congress intended that a statute’s remedial scheme be the exclusive avenue through which a plaintiff may assert a claim, then a § 1983 claim is precluded. The inquiry is whether Congress meant the judicial remedy authorized by the statute to coexist with an alternative remedy available under § 1983. In Fitzgerald, the Supreme Court explained that where the § 1983 claim is based upon a statutory right, evidence of Congress’ intent could be found directly in the statute creating the right or could be inferred from the statute’s creation of an enforcement scheme that is incompatible with individual enforcement under § 1983. In cases in which the § 1983 claim alleges a constitutional violation, lack of congressional intent to preclude such a remedy may be inferred from a comparison of rights and protections afforded under the statute with those provided under the Constitution. Where the contours of such rights and protections diverge, the Court noted, it is not likely that Congress intended to preclude separate actions under § 1983 enforcing constitutional rights.
Applying this analysis to Title IX, Justice Alito, writing for the Court, found that Title IX’s limited enforcement scheme, which expressly provides only for a withdrawal of federal funding and impliedly provides a private right of action for damages and injunctive relief, is not the type of “unusually elaborate,” “carefully tailored” and “restrictive” enforcement schemes the Court previously had held as precluding a direct § 1983 action. The Court further found that the existence of Title IX’s full complement of remedies in the implied private remedy, gave further evidence that Congress did not intend to preclude a separate remedy under § 1983. Additionally, Justice Alito explained that substantive rights and protections available under Title IX and § 1983 diverged in several material respects, including the scope of institutions that could be sued under either law; the exemptions provided by Title IX as to certain of its restrictions (e.g., certain single-sex institutions admissions policies permitted under Title IX were impermissible under the Equal Protection Clause); and the different standards required for establishing liability under either law.
In view of the absence of a comprehensive enforcement scheme and the divergent coverage of Title IX and the Equal Protection Act, the Supreme Court held “that Title IX was not meant to be an exclusive mechanism for addressing gender discrimination in schools, or a substitute for § 1983 suits as a means of enforcing constitutional rights.
In practical terms, the Court’s decision renders school officials, administrators, teachers and other individuals considerably more vulnerable to suits for compensatory and punitive damages. Previously, Title IX had been consistently interpreted as not authorizing suit against such individuals. It may now be expected that plaintiffs’ attorneys will adopt typical practices in these suits as employed in most civil rights suits of naming numerous individuals as defendants. This will certainly increase the number of ethical conflicts faced by defense counsel and thereby increase defense costs forcing institutions to consider seriously early settlement of cases. In view of the Court’s decision in Fitzgerald, defense counsel it will become ever more important to assert the affirmative defense of qualified immunity where the defendant did not violate any clearly established constitutional right and seek early dismissal of such individual defendants early on it the litigation. Entity liability still can be defended on the basis that the alleged harassment or other alleged constitutional violation was not the result of municipal custom, policy or practice under Monell v. NYC Dept. of Soc. Serv.
PRACTICE POINTER: As a result of Fitzgerald, school districts are well advised to review their policies and procedures, and especially their grievance procedures, for addressing claims of bullying or harassment of students whether involving student to student harassment or employee/official to student. Additionally, districts should adequately publicize their bullying/harassment/grievance policies to students, parents and staff, as well as conduct frequent training of staff. Such training should be provided no less than annually. Though it is impossible to completely prevent lawsuits from being filed, these steps will enable school districts to address and correct problems closer in time to their occurrence and limit the situations where parents and students feel they must seek legal advice to vindicate their rights.