Supreme Court Issues Unanimous Decision in Fitzgerald v. Barnstable: Parents Can Sue School Officials Under Discrimination Laws
On March 3, 2008, the Fitzgeralds, parents of a child harassed on a school bus, took their case on to the Supreme Court. They did not challenge the adverse ruling on Title IX. Instead, their appeal focused on whether Title IX had displaced their right to sue for constitutional violations. The question presented: “Whether Title IX’s implied right of action precludes Section 1983 constitutional claims to remedy sex discrimination by federally funded educational institutions.” Their petition asserted that the Circuit Court was wrong in stating that Title IX provided a “compehensive remedial scheme” so there was no recourse to Section 1983: “Title IX offers no express private remedies at all. Even assuming that Congress anticipated the subsequent recognition of private Title IX remedies by this Court, it is hardly likely that Congress intended those remedies - the contours of which it did not describe or define - to bar constitutional suits under Section 1983. Indeed, the holding below turns Title IX on its head: that statute was intended to expand, not to contract, protections for victims of discrimination on the basis of sex.”
Supreme Court Issues Unanimous Decision in Fitzgerald v. Barnstable:
Parents Can Sue School Officials Under Discrimination Laws
by Pamela Darr Wright, MA, MSW & Peter W. D. Wright, Esq.1
A kindergarten girl, Jacqueline, was sexually harassed by a third-grade boy while riding the school bus. The child's parents brought this to the attention of school administrators immediately. The principal offered to transfer the child to another bus. Her parents asked the school to put a monitor on the bus or transfer the boy to another bus. When the school did not accept these alternatives, the parents drove their daughter to school for the rest of the year.
The police concluded there was insufficient evidence to bring criminal charges against the boy. The principal concluded there was insufficient evidence to warrant discipline.
Jacqueline continued to describe disturbing interactions with the boy for the remainder of the school year. Ultimately, she began missing school.
Claiming that school officials did not make adequate efforts to protect their daughter, Jacqueline's parents filed suit in federal district court against the school's governing body, Barnstable School Committee, and the superintendent. Their complaint included a claim for violating Title IX of the Education Act Amendments and claims under 42 U.S.C. Section 1983.
Claims Under Title IX and Section 1983
Claiming that school officials did not make adequate efforts to protect their daughter, Jacqueline's parents filed suit in federal district court against the school's governing body, Barnstable School Committee, and the superintendent. They alleged that the sexual harassment violated Title IX of the Education Act Amendments. The suit also alleged a violation of 42 USC 1983 which states that: "Every person who, under color of any (federal or state) statute, ordinance, regulation, custom, or usage . . . subjects (someone to be deprived) of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured ... "
If a statute, such as the Individuals with Disabilities Education Act (20 USC 1400) provides a clear remedy for statutory violations, then the ability to sue under IDEA precludes an ability to sue using Section 1983. On a Motion for Summary Judgment, the federal district court resolved the case in favor of the school committee and superintendent. Hunter v. Barnstable School Committee, 456 F. Supp. 2d 255, 266 (Mass. 2006) explaining, in part, that Title IX provides the remedy for such a violation and not Section 1983.
The parents appealed to the Court of Appeals for the First Circuit. That Court ruled against the child noting that: "In this instance, the plaintiffs seek to use section 1983 to redress deprivations of both a federal statutory right (implicating Title IX) and a federal constitutional right (implicating the Equal Protection Clause). At an early stage of the litigation the district court, ruling from the bench, found these claims precluded under applicable Supreme Court doctrine."
"A School Should be a Haven"
In their ruling against the child, the Court of Appeals decision began with this sentence: "This appeal grows out of allegations that paint a grotesque picture of peer-on-peer sexual harassment at the elementary school level ..."
"A school should be a haven for a youngster, and sexual harassment in an elementary school is never to be condoned. But schools and school officials face a daunting challenge in maintaining a safe, orderly, and well-disciplined environment. Where peer-on-peer sexual harassment is alleged, the Title IX framework, as authoritatively interpreted, imposes a distinct set of legal rules ... "
Elements That Must be Proved
"... the student must prove that severe, pervasive, and objectively offensive harassment occurred; that the harassment deprived her of educational opportunities or benefits; that the educational institution had actual knowledge of the harassment; and, finally, that the institution's deliberate indifference caused the student to be subjected to the harassment."
School Not Liable for "Deliberate Indifference"
The Court found that the school's response was not "so deficient as to be clearly unreasonable," and did not establish that the school acted with "deliberate indifference."
The Court of Appeals noted that three federal circuit courts had ruled that Title IX forecloses Section 1983 constitutional claims. Three other federal circuit courts have ruled that both Title IX and Section 1983 claims may both be raised in a sex-discrimination suit.
"... the School Committee cannot be held liable under Title IX for deliberate indifference. We also conclude that the plaintiffs' claims brought pursuant to section 1983 were properly dismissed on the ground that those claims, as presented in this case, are precluded by Title IX's comprehensive remedial scheme.
"This is an unfortunate case. If Jacqueline's allegations are true, she is a victim — but that is not reason enough to impose on the defendants duties that range beyond the carefully calibrated boundaries of Title IX. That would be a decision for Congress, not for the courts. For our part, we need go no further." Lisa Ryan Fitzgerald, etc., et. al. v. Barnstable School Committtee, et. al., 504 F. 3d 165.
Petition for Certiorari
On March 3, 2008, the Fitzgeralds took their case on to the Supreme Court. They did not challenge the adverse ruling on Title IX. Instead, their appeal focused on whether Title IX had displaced their right to sue for constitutional violations.
The question presented: “Whether Title IX’s implied right of action precludes Section 1983 constitutional claims to remedy sex discrimination by federally funded educational institutions.”
Their petition asserted that the Circuit Court was wrong in stating that Title IX provided a “compehensive remedial scheme” so there was no recourse to Section 1983:
“Title IX offers no express private remedies at all. Even assuming that Congress anticipated the subsequent recognition of private Title IX remedies by this Court, it is hardly likely that Congress intended those remedies - the contours of which it did not describe or define - to bar constitutional suits under Section 1983. Indeed, the holding below turns Title IX on its head: that statute was intended to expand, not to contract, protections for victims of discrimination on the basis of sex.”
The appeal also emphasized the split among Circuit Courts:
“The courts of appeals are irreconcilably divided on the question whether Title IX precludes constitutional claims brought under Section 1983 that arise out of sex discrimination by federally funded educational institutions .... Confusion now reigns ... holdings like the one below threaten to frustrate our nation’s long-standing policy against discrimination on the basis of sex.”
Supreme Court Delivers Unanimous Opinion
The Court heard oral argument on December 2, 2008.
On January 21, the Supreme Court issued a unanimous decision (9-0) in Fitzgerald v. Barnstable Sch. Committee, 555 U. S. ____ (2009). The Court reinstated the lawsuit filed by the parents under Title IX, which bars gender discrimination at schools that receive federal funds, and under Section 1983, a broader civil rights law.
Judge Alito delivered the opinion for the Court:
"The issue in this case of peer-on-peer sexual harassment is whether Title IX of the Education Amendments of 1972, 86 Stat. 373, 20 U. S. C. §1681(a), precludes an action under Rev. Stat. §1979, 42 U. S. C. §1983, alleging unconstitutional gender discrimination in schools. The Court of Appeals for the First Circuit held that it does. 504 F. 3d 165 (2007). We reverse."
The Court held that:
Title IX does not preclude a §1983 action alleging unconstitutional gender discrimination in schools.
Where the §1983 claim alleges a constitutional violation, a lack of congressional intent to preclude may also be inferred from a comparison of the rights and protections of the other statute and those existing under the Constitution.
In the absence of a comprehensive remedial scheme ... and in light of the divergent coverage of Title IX and the Equal Protection Clause, it must be concluded 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.
Title IX’s only express enforcement mechanism, 20 U. S. C. §1682, is an administrative procedure resulting in the withdrawal of federal funding from noncompliant institutions. Title IX has no administrative exhaustion requirement and no notice provisions. Plaintiffs can file directly in court under its implied private right of action and can obtain the full range of remedies.
Title IX reaches institutions and programs that receive federal funds, 20 U. S. C. §1681(a), which may include nonpublic institutions, §1681(c), but it has consistently been interpreted as not authorizing suit against school officials, teachers, and other individuals.
The Court’s conclusion is consistent with Title IX’s context and history. Because the Congress that enacted Title IX authorized the Attorney General to intervene in private suits alleging sex discrimination violative of the Equal Protection Clause, 42 U. S. C.§2000h–2, Congress must have explicitly envisioned that private plaintiffs would bring constitutional claims to challenge gender discrimination via §1983.
"No Court Has Addressed the Merits of Their Constitutional Claims"
"One matter remains. Respondents contend that the judgment of the Court of Appeals should be affirmed on independent grounds—namely, that the Fitzgeralds have no actionable §1983 claim on which to proceed. They contend that the Court of Appeals’ holding that neither the school committee nor Dever acted with deliberate indifference is conclusive and forecloses a §1983 constitutional claim based on a similar theory of liability.
"The Fitzgeralds respond that they have no intention of relitigating the issue of deliberate indifference. They intend, they say, to advance claims of discriminatory treatment in the investigation of student behavior and in the treatment of student complaints.
"As the Fitzgeralds note, no court has addressed the merits of their constitutional claims or even the sufficiency of their pleadings.
"Accordingly, we reverse the Court of Appeals’ judgment that the District Court’s dismissal of the §1983 claims was proper and remand this case for further proceedings consistent with this opinion."
About the Authors
Peter W.D. Wright and Pamela Darr Wright are Adjunct Professors of Law at the William and Mary Law School where they teach a course about special education law and advocacy and assist with the Law School's Special Education Law Clinic.
They are co-authors of several books published by Harbor House Law Press including Wrightslaw: Special Education Law, 2nd Edition (ISBN: 978-1-892320-16-2); Wrightslaw: From Emotions to Advocacy, 2nd Edition (978-1-892320-09-4); and Wrightslaw: No Child Left Behind with Suzanne Whitney (ISBN: 978-1-892320-12-4), and produced the award-winning documentary, Surviving Due Process: Stephen Jeffers v. School Board DVD Video.
The Wrights built several websites to help parents of children with disabilities in their quest for quality special education programs. They also publish The Special Ed Advocate, a weekly online newsletter.