Keeping the Courthouse Doors Open: Supreme Court Rules Unanimously That Title IX Does Not Preclude Equal Protection Claim Under Section 1983

by Elizabeth B. Wydra, Chief Counsel to the Constitutional Accountability Center

Today the Supreme Court unanimously ruled that Title IX of the Education Amendments of 1972 does not preclude a § 1983 action alleging unconstitutional gender discrimination in schools. As discussed in this previous post, the courts below held that the Fitzgeralds, whose five-year-old daughter was allegedly harassed on the school bus by a third-grade boy, could not sue for a violation of the Equal Protection Clause under § 1983 because Title IX, which was passed by Congress to ensure equal opportunities for women and girls in education, provided the sole avenue for redress. In an opinion by Justice Alito, every Justice on the Court rejected that notion. Instead, the Court held that, “[i]n light of the divergent coverage of Title IX and the Equal Protection Clause, as well as the absence of a comprehensive remedial scheme…we conclude 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 addition to detailing the different scope and purposes of Title IX and § 1983—the persons or entities covered under each statute, the types of damages available, and the standards of liability—the Court recognized that the history of intertwining civil rights remedies supported keeping the courthouse doors open to hear constitutional claims as well as statutory ones. Congress expressly modeled Title IX’s anti-sex-discrimination scheme on Title VI of the Civil Rights Act of 1964, which prohibits discrimination based on race, color, or national origin in federally-funded programs. As Justice Alito’s opinion notes, Title VI was routinely interpreted to allow for parallel constitutional claims under § 1983, and the Court properly assumed that Congress expected the same interpretation of Title IX.

This understanding of overlapping and supportive civil rights protections fits well with the history of § 1983. Passed in 1871, the statute provides: “Every person who, under color of any statute, ordinance, regulation, custom or usage, of any State or Territory or the District of Columbia, subjects or causes to be subjected, any citizen of the United States or other person within the jurisdiction thereof to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured in an action at law, suit in equity, or other proceeding for redress.” While the federal government was empowered to enforce these same constitutional guarantees by virtue of Section 5 of the 14th Amendment, the Reconstruction Congress nonetheless created § 1983’s federal damages remedy to doubly ensure that states and their officers would “obey the will of the whole people expressed in the Constitution.” Cong. Globe, 42nd Cong., 1st Sess. 691 (Sen. Edmonds) (1871).

The Supreme Court’s unanimous ruling today in Fitzgerald has preserved § 1983’s traditional role as a bulwark of liberty, stating that it would not “lightly conclude” that Congress intended to preclude an equal protection claim under § 1983 when it enacted Title IX to further ensure that federally-funded education programs are available to all regardless of sex. Our Nation’s civil rights protections work together to secure constitutional and statutory guarantees of equality. Today, the members of the Supreme Court spoke as one in affirming that design.