Fitzgerald v. Barnstable School Committee


Does Title IX’s implied right of action provide an exclusive remedy for claims of gender discrimination in federally-funded academic institutions, therefore limiting the right to bring a separate claim for a violation of constitutional right to Equal Protection?

Oral argument: 
December 2, 2008

Lisa and Robert Fitzgerald brought suit against the Barnstable School Committee (“Barnstable”) under both § 1983 and Title IX, claiming the district was deliberately indifferent to their daughter’s claims of sexual harassment by an older student on her school bus. Neither the police nor the school’s own investigation found enough evidence to charge or punish the alleged perpetrator. The federal district court dismissed the Fitzgeralds’ Title IX sexual discrimination claim on summary judgment. The court indicated that because Title IX prescribed the remedy for allegations of sexual discrimination in federally funded educational institutions, it foreclosed a separate § 1983 claim alleging a violation of a constitutional right to Equal Protection. The Fitzgeralds claim there are fundamental differences between the rights of action in § 1983 and Title IX, and that a statute intended to expand rights would never limit a constitutional right of action. Barnstable, however, maintains that Congress’s efforts to pass Title IX represented an entirely separate standard to govern sex discrimination in schools. Women’s rights groups claim that a decision to foreclose liability under § 1983 will make it more difficult to bring claims of sexual discrimination in educational institutions, while Barnstable claims that maintaining both causes of action would overexpose educational institutions to suits for violations committed by individuals, rather than just the institution itself.

Questions as Framed for the Court by the Parties 

Title IX of the Education Amendments of 1972, 20 U.S.C. § 1681(a), has been interpreted to provide an implied private right of action for sex discrimination by federally funded educational institutions. Section 1983 of Title 42 of the United States Code creates an express remedy for violations of the U.S. Constitution. Three courts of appeals have held that Title IX’s implied remedy does not foreclose Section 1983 claims to enforce the Constitution’s prohibition against invidious sex discrimination. In contrast, four circuits, including the First Circuit in this case, have held that Title IX’s implied right of action is the exclusive remedy for sex discrimination by federally funded educational institutions.

The question presented is:

Whether Title IX’s implied right of action precludes Section 1983 constitutional claims to remedy sex discrimination by federally funded educational institutions.


After several months of displaying atypical behavior, kindergartner Jacqueline Fitzgerald reported to her parents (the “Fitzgeralds”) in February 2001 that an older student on her school bus was harassing her by forcing her to lift her skirt when she wore dresses. , The Fitzgeralds immediately notified Jacqueline’s school principal of her claims. Jacqueline was able to identify a third-grade student, Briton, as the perpetrator. Briton denied the allegations. Other students, as well as the bus driver, were questioned by the school’s administration, but none of them could corroborate Jacqueline’s story. Both school officials and the police became involved in the investigation;they found Briton’s denials credible and concluded that there was insufficient evidence to either charge or punish him.

Nevertheless, the Fitzgeralds pressed the school to either move Briton to another bus, or to place an adult monitor on Jacqueline’s bus. School officials offered instead to place Jacqueline on a separate bus (allowing Briton to remain on his original bus) or to leave several rows of empty bus seats between kindergarteners and older students. The Fitzgeralds rejected both offers, believing these courses of action punished Jacqueline, not Briton. The Fitzgeralds also claim the school did not take proper action to keep Briton away from Jacqueline at school. The Fitzgeralds claim the school was unresponsive to their complaints after an incident where a gym teacher “randomly” made Jacqueline give Briton a high-five. After this incident, Jacqueline stopped going to gym class and began to miss school frequently.

The Fitzgeralds then sued the Barnstable School Committee and Superintendent Russell Dever (“Barnstable”) for violation of Title IX of the Education Act Amendments of 1972, (“Title IX”) 20 U.S.C. §§ 1681–1688. The Fitzgeralds also brought claims pursuant to 42 U.S.C. S 1983 (“§ 1983”) and Massachusetts state law.

Title IX creates a private right of action for damages against educational institutions for allegedly discriminatory programs and activities. To make a Title IX claim based on third party sexual harassment, a plaintiff must show that the educational institution receiving federal funding acted with “deliberate indifference” in the face of knowledge of the sexual harassment.

Section 1983 provides a right of action for any person who experiences the “deprivation of his rights, privileges, or immunities secured by the Constitution and laws” of the United States at the hands of a state actor. Plaintiffs generally use § 1983 to challenge governmental violations of the Fourteenth Amendment’s guarantee of Equal Protection.

Barnstable moved to dismiss the claims. The district court granted the motion and dismissed the Fitzgeralds’ § 1983 state law claims, but decided to hear the Title IX claim. Following discovery, Barnstable successfully filed for summary judgment on the Title IX claim. The court found for Barnstable on the grounds that there were no disputes of fact and that the School Committee reacted reasonably to Jacqueline’s complaints.

The Fitzgeralds appealed the decision to the United States Court of Appeals for the First Circuit, which affirmed the district court’s decisions, finding that the response of the defendants to Jacqueline’s claims were not, as a matter of law, unreasonable, and thus the defendants could not be held liable under Title IX for “deliberate indifference.” Additionally, the First Circuit maintained that the Fitzgeralds’ § 1983 claims were properly dismissed, as those claims were precluded by Title IX’s comprehensive remedial scheme.

The Fitzgeralds petitioned for a writ of certiorari to the Supreme Court of the United States, which the Supreme Court granted on June 9, 2008.


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.


In this case, the Supreme Court will determine whether Title IX’s implied private right of action forecloses claims against federally funded education institutions for gender discrimination that could otherwise be brought under § 1983. The Court’s decision will affect the scope of the remedies available to victims of sex discrimination by schools—even private colleges—that receive any amount of federal funds. In addition, this decision may also impact how federally funded educational institutions approach and address sex discrimination issues.

The Fitzgeralds contend that nothing in text of Title IX suggests that it provides the only remedy for sex discrimination claims brought against federally funded institutions. On the other hand, Barnstable argues that since both Title IX and § 1983 apply the same legal standard, the Fitzgeralds should not be allowed to litigate the same issue under a different claim.

A decision in favor of Barnstable could limit the remedies available to victims of sex discrimination by educational institutions receiving federal funding. Amicus American Civil Liberties Union (“ACLU”) argues that while Title IX applies only to educational institutions that receive federal funds, claims pursuant to § 1983 apply to all “state actors,” irrespective of whether they receive federal funding. The ACLU also argues that § 1983 allows suits against individuals, whereas Title IX only permits suits against institutions. Furthermore, the ACLU contends that, because Title IX protects different rights than § 1983 does, victims of gender-based educational discrimination would have fewer causes of action available. Amicus American Bar Association (“ABA”) contends that Title IX, standing alone, is insufficient to protect victims’ constitutional rights, and that Title IX was meant to expand, not abridge, the rights and remedies of victims of sex discrimination.

Amici for the Fitzgeralds also claim that limiting the remedies available to victims of sex discrimination will reduce the ability of women (and men) to combat sex discrimination and other inequities in federally funded educational institutions, citing statistics demonstrating that fewer women study math and sciences and play on sports teams, and that sexual harassment still affects college campuses. The National Association of Women Lawyers (“NAWL”) contends that achieving gender equality in the education system would be more difficult under Title IX’s “deliberate indifference” standard, because, for a successful claim, a petition would have to prove deliberate indifference by institution—not just by the harassing individual.

On the other hand, a decision for the Fitzgeralds could change how federally funded institutions deal with sex discrimination. According to the National School Boards Association (“NSBA”), a ruling in favor of the Fitzgeralds would create a cause of action under § 1983 for victims of peer-to-peer sex discrimination in federally funded educational institutions, a cause of action previously unrecognized by courts. Such a reading of § 1983 allows victims of peer-to-peer sex harassment to sue schools, when claims for Fourteenth Amendment violations historically were limited to discrimination caused by state actors. Allowing victims of private third party sex discrimination to bring claims against schools may open up school districts to “unprecedented liability,” as every victim of peer-to-peer harassment will have a cause of action against schools and school administrators. Increases in the potential liability faced by schools further complicates their task of regulating student misconduct, as understaffed schools with budget constraints will have to devote even more resources and staff towards regulating the actions of the student body.

A split has developed among federal circuit courts’ interpretations of the interplay between Title IX and § 1983. The Sixth, Eighth, and Tenth Circuits have held that plaintiffs can bring both Title IX and § 1983 claims for the same alleged sex discrimination, while the Second, Third, and Seventh Circuits have determined that the Title IX’s right of action precludes other claims for the federally funded institution’s same conduct. The Supreme Court’s decision in this case could help resolve confusion among the lower courts regarding this issue.


The Court’s decision in this case may determine when federally funded educational institutions may be liable for claims of gender-based discrimination. A decision for the Fitzgeralds could expand the potential liability of federally funded institutions to include actions by individual employees and private third parties. A decision for Barnstable, on the other hand, could limit the circumstances under which a claim of gender discrimination could be brought against a federally funded institution. Furthermore, this case could speak more generally to the interplay between statutory and constitutional rights of action, and the degree to which an implied right of action can limit a preexisting constitutional right.

Edited by 


Additional Resources 

· U.S. Department of Education—Title IX and Sexual Discrimination

· Workplace Prof Blog: Another Right Without a Remedy on the Way: Court Grants Cert in the Title IX Preclusion/Peer Sex Harassment Case (June 9, 2008)

· Comment from Lisa and Robert Fitzgerald in The Flat Hat, student newspaper at The College of William & Mary

· Criticism of U.S. Supreme Court’s decision to grant certiorari in Fitzgerald v. Barnstable School Committee: