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Win for Title IX and the Constitution

Ariela Migdal,
ACLU Women's Rights Project
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January 22, 2009

Yesterday the Supreme Court handed down a unanimous ruling with important implications for civil rights. The court held, by a vote of 9 – 0, that a plaintiff who brings a sex discrimination claim under Title IX — the federal law banning sex discrimination in education — also has the right to bring claims under the Equal Protection Clause of the Constitution. This is a critical point because, in the court’s words, “Title IX’s protections are narrower in some respects and broader in others than those guaranteed under the Equal Protection Clause.”

In this case, the parents of Jacqueline Fitzgerald, a kindergartener, sued their daughter’s school district for inadequately responding to the sexual harassment that Jacqueline was experiencing on the school bus. The Fitzgeralds felt that the measures suggested by the school — such as transferring Jacqueline to a different bus — punished their daughter instead of dealing effectively with the harassment. They sued under both Title IX and 42 U.S.C. Section 1983 — the federal law authorizing civil rights lawsuits for constitutional violations — alleging violations of the Equal Protection Clause.

The trial court ruled for the school district, as did the 1st Circuit Court of Appeals, holding that the Fitzgeralds’ Title IX claim failed because the school district had reacted reasonably to the harassment, and that the Fitzgeralds could not bring constitutional claims under Section 1983, because Congress intended for Title IX to be the only way to vindicate the right to be free from gender discrimination in school.

Yesterday the Supreme Court reversed the lower courts’ decisions in a ruling that has important implications for victims of sex discrimination as well as other kinds of unconstitutional discrimination. The court found that victims should not be barred from simultaneously pursuing claims under both Title IX and Section 1983, in part because the two statutes are far from identical — there are situations in which a plaintiff can use Title IX but not Section 1983, and vice-versa.

The court also reasoned that Congress, in passing civil rights statutes like Title IX, did not intend to eliminate people’s ability to use Section 1983 to protect their constitutional rights. This reasoning affirms the importance of Section 1983 as the statute that makes the rights embodied in the Constitution real.

Congress enacted Section 1983 soon after the Civil War for the very purpose of enforcing the newly-ratified 14th Amendment’s guarantee of equal protection of the laws. Since then, Section 1983 has been a critical tool in fighting unconstitutional discrimination — including race discrimination, particularly in education — as in the landmark anti-segregation case, Brown v. Board of Education. It has also been used as the vehicle for lawsuits upholding other important constitutional rights, such as the right to freedom of expression and the right to freedom from unlawful searches and seizures.

In 1972, Congress passed Title IX in order to enhance protections against sex discrimination in education. For the 1st Circuit Court to hold that Congress, when it added Title IX to the arsenal against sex discrimination, somehow meant to limit students’ abilities to vindicate their constitutional rights through the time-honored mechanism of Section 1983 was perverse.

Victims of sex discrimination need both Title IX and the protections afforded by the 14th Amendment and its implementing statute, Section 1983, just as victims of racial discrimination in federal programs must be able to take advantage of civil rights laws like Title VI as well as the Constitution. In its ruling today, the Supreme Court ensured that the full range of civil rights remedies remains available to fight discrimination.

The ACLU’s amicus brief in this Supreme Court case is available here. Visit to learn more about the Title IX work of the ACLU Women’s Rights Project.

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