by Elizabeth Wydra, Chief Counsel, Constitutional Accountability Center

What does a case about the alleged sexual harassment of a five-year-old girl by a third-grade boy who rode with her on the school bus have to do with the case of Diana Levine, who lost her arm to gangrene after being injected with the anti-nausea drug Phenergan? In addition to the fact that both cases intertwine personal heartbreak and contentious litigation, Fitzgerald v. Barnstable School Committee and Wyeth v. Levine also illustrate the potential for harm when the Supreme Court considers whether it should go beyond statutory text to preempt or preclude legal remedies long available to victims of wrongdoing. Perhaps even more troubling than the possible preemption of state law remedies at issue in Wyeth v. Levine, which we’ve discussed here, the Fitzgerald case raises the question of whether claims under the Equal Protection Clause can be precluded sub silentio by a federal civil rights law intended to prevent sex discrimination in education. The Supreme Court will hear argument in Fitzgerald today, and, will consider whether to use Title IX—a statute Congress passed to enhance the Constitution’s guarantee of equal protection for women and girls, not narrow it—to limit equal protection rights.

According to five-year-old Jacqueline Fitzgerald, she was subjected to repeated sexual harassment on the school bus by a third-grade boy. Jacqueline’s parents contacted the school principal, who began an investigation and sought to resolve the issue. However, after the principal refused the Fitzgeralds’ request that an adult monitor ride with the children on the school bus or that the boy be transferred to a different bus, the Fitzgeralds sued the school district under Title IX of the Education Amendments of 1972. They also sued the school district under Section 1983 of the Civil Rights Act, which provides a civil remedy when state or local government officials violate the U.S. Constitution, including the Equal Protection Clause. The trial court found that the Fitzgeralds had not presented facts sufficient to state a Title IX claim. Relevant to the appeal now pending before the Supreme Court, the lower court also dismissed the Fitzgeralds’ constitutional claim under § 1983, opining that Title IX completely precludes constitutional claims related to sex discrimination in education. The court of appeals upheld that ruling, but other appellate courts have disagreed on this same legal issue.

Apart from the fact that the Constitution is the supreme law of the land, the preclusion of constitutionally-based claims in this case would be particularly disturbing because there is absolutely no support in the text, history or structure of Title IX for the proposition that the statute was intended to supersede equal protection claims under § 1983. In fact, Title IX does not even contain a civil remedy for individuals harmed by sex discrimination in schools—a private right of action that allows such individuals to bring suit under Title IX was implied by the Court in 1979. It would thus be strange indeed for the Supreme Court to hold that a claim under the Constitution, brought under a civil rights statute passed in 1871 specifically to provide individuals with civil remedies for constitutional violations, is precluded by a later congressional enactment that is not only silent on the question of displacing § 1983 actions but that also does not even provide for victims to bring lawsuits to obtain relief from unlawful discrimination.

As the briefs filed in the Court show, Title IX is a powerful statute that works toward the equality promised in the Fourteenth Amendment, but it does not perfectly overlap with constitutional protections. For example, a constitutional claim under § 1983 may be brought against individual officials; a Title IX action may only be brought against educational institutions, and then only if they receive federal funds. The remedies provided by § 1983 are not merely relics of the past — they make a difference in whether individuals can fully vindicate their constitutional rights and seek redress in courts of law. This case presents the Supreme Court with another opportunity to keep the courthouse doors open and ensure that all Americans have access to justice.