The Roberts Court & Sexual Harassment in Schools

Posted on December 4th, 2008 by Katherine Franke

On Tuesday, the Supreme Court heard oral argument in Fitzgerald v. Barnstable School Committee – a case involving a girl in the kindergarten at Hyannis West Elementary School who claimed that every time she wore a skirt to school, an eight-year-old third grade boy on the school bus would force her to lift her skirt, pull down her underpants, or spread her legs, while other students laughed at her. She charged the school with sex discrimination in connection with their investigation of these allegations. Her complaint made two separate sex discrimination claims: one under the Equal Protection clause of the 14th Amendment and the other under Title IX of the 1972 Education Amendments – a law prohibiting sex discrimination in any educational program that receives federal funding.

The issue before the Supreme Court did not address the merits of her claim, rather it raised a technical, yet extremely important, issue of federal anti-discrimination law: when Congress enacted Title IX, did it intend it to be the only protection students would have against sex discrimination in education, thereby eliminating a claim under the 14th Amendment’s Equal Protection clause? (The technical formulation of the question is whether the implied right of action contained in Title IX precludes a §1983 Equal Protection cause of action?) The federal circuit courts have split on this question, and the Supreme Court took the case to resolve this split. A fuller summary of the case is available here.

Why is the case important? It is a huge deal that the Court could find that Title IX – a statute that Congress enacted to provide protections against sex discrimination in education in addition to those contained in the Constitution – would be read a generation later to eliminate the application of the Constitution in schools.

Unfortunately, the oral argument before the Supreme Court this week didn’t go so well. The transcript is available here. Justice Breyer asked if it would be possible to imagine a case in which an institution would be found not to have violated Title IX, but still could be held to have violated the Constitution. Kay Hodge, the lawyer representing the school district, said she could not imagine such a case. In this case, she added, there could not be claims under both Title IX and the Constitution because the parents’ claims under both were “virtually identical.”

But they aren’t virtually identical.

First, the plaintiff alleges that the school discriminated on the basis of sex both in the course of the investigation and in the proposed remedy. This theory may not state a Title IX violation because it may not establish that “the harassment deprived [respondent] of educational opportunities or benefits,” a requirement of a Title IX claim. There is, however, no such requirement for constitutional equal protection claims; investigations or remedies that are discriminatory may trigger a constitutional violation regardless of whether the student’s educational opportunities were disrupted.

Second, under an Equal Protection theory, plaintiff could have established that the school had a practice or policy of being more responsive to complaints of bullying lodged by male victims than to claims of harassment advanced by female victims, something much more difficult to make out under Title IX.

The Sixth, Eighth, and Tenth Circuits have held that Title IX does not preempt constitutional claims against schools. In contrast, the First, Second, Third, and Seventh Circuits have held that Title IX does foreclose constitutional claims arising from the same incident that prompted suit under Title IX. Only once before has the Supreme Court found that a statute like Title IX signaled Congress’ intent to preclude a Constitutional claim- in Smith v. Robinson. In that case Congress took little time to tell the Court that it had gotten the issue wrong, promptly passing a law clarifying that it did not intend to preclude Constitutional claims when it passed civil rights statutes expanding the rights of students to an education free from discrimination.

Accepting the school’s argument would mean that Congress, by enacting a statute that was intended to provide additional protections for victims of sex discrimination, meant to withdraw all other remedies for the vindication of existing constitutional rights even though the old and new remedies differ significantly in scope. It would also mean that Congress intended to preclude use of § 1983 to enforce the Constitution by enacting a statute that provides no express private rights at all, thus leaving it to the courts to decide the nature of the new substitute remedy. This means the Congress can do an end run around the Constitution by enacting a vague statute that sort of takes aim at discrimination, and then rather than having the Constitution dictate what protections one has against discrimination, give that power to the Supreme Court to decide. Of course, if I were able to write the Supreme Court’s opinions this wouldn’t be a problem! But John Roberts has got the job, and he made clear in the oral argument on Tuesday, and in earlier decisions, that he’s not at all interested in interpreting anti-discrimination laws felicitously, as we say in the law.


  1. […] instance, on December 4th I wrote about a case that had just been argued in the Supreme Court having to do with Title IX, the federal law prohibiting sex discrimination by recipients of federal funds. The facts had to do […]

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