Title IX and the Equal Protection Clause

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On Tuesday, the Supreme Court will hear arguments in Fitzgerald v. Barnstable School Committee.   The issue in the case is whether Title IX precludes a litigant from suing under the Equal Protection Clause as well.   Despite the fact that I think the answer to the question is no, I believe the Court will answer it yes.

The case arises out of student-on-student sexual harassment at an elementary school.   A female kindergartner at the school was repeatedly harassed by a male third grader who, whenever she wore a skirt, made her lift her skirt and then pull down her underwear or spread her legs while others watched.   The school and the girl’s parents couldn’t agree on a solution, so the parents began driving the girl to school.   Unfortunately, the harassment continued, so the parents sued under both the Equal Protection Clause (via Section 1983) and Title IX.   Both the district court and the First Circuit ruled that the parents could bring only a Title IX claim and not the Equal Protection Clause claim.

The standard the Supreme Court has developed in this type of case, from a 1984 case called Smith v. Robinson, is that the federal statute will preempt the constitutional claim if the statutory interest protected is”virtually identical”to the constitutional right and if”Congress intended the [independent statute] to be the exclusive avenue through which a plaintiff”may vindicate the right.   As I argued in a 2005 article, there is no way Title IX and the Equal Protection Clause can be considered “virtually identical.”   Most important, in several substantive respects, Title IX provides a broader cause of action than a constitutional claim.   For one obvious reason, Title IX became law when the Equal Protection still provided nothing more than rational basis review for sex discrimination claims; thus, Congress clearly intended it to provide more protection, and to be substantively different than, the Equal Protection Clause.   My article proceeded to develop a theoretical understanding of Title IX that is broader than Equal Protection Clause protections in several important ways.

On the flip side, in many procedural respects, Title IX has a more limited reach.   For instance, it reaches schools alone, not individuals and schools, as the Constitution does.   Thus, with so many differences, there is no way to conclude that Title IX and the Equal Protection Clause are “virtually identical” such that Congress intended Title IX to be the exclusive remedy for a plaintiff.

Despite these arguments, that I still believe are strong, I think the Court will probably rule in favor of the school here.   With the current make-up of the Court, Justice Kennedy is the swing vote in Title IX cases, and he has proven that he is hostile to procedural claims that are favorable to a Title IX plaintiff.   I predict a 5-4 ruling against the parents here.

The decision in this case will settle a circuit split on this issue.   It will also be one of the Court’s few recent discussions of the Equal Protection Clause as it relates to sex discrimination.   Over the past two decades, cases before the Court raising this issue have become rare, so even though this case deals with other issues, it will most likely be an important Equal Protection Clause case going forward.

Thanks to a colleague who is clerking for the Court this Term, I’m going to be at oral argument, so I’ll report back sometime later Tuesday or Wednesday about how it went.

- David S. Cohen

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