JURIST Guest Columnist Deborah Brake of the University of Pittsburgh School of Law says that important choices about our constitutional structure and the relationship between statutory and constitutional rights are at stake in Fitzgerald v. Barnstable School Committee, one of the lesser noticed cases on this term's US Supreme Court docket…

One of the lesser noticed cases on the Supreme Court’s docket this term is Fitzgerald v. Barnstable School Committee, No. 07-1125, which presents the question of whether Congress precluded constitutional claims for sex discrimination in education when it passed Title IX, the federal statute banning sex discrimination in federally funded schools. So far, the case has generated little attention from the media or Supreme Court commentators. Its notoriety is mostly limited to the relatively small group of lawyers who litigate Title IX claims and have run up against the preclusion problem in bringing equal protection claims for the same conduct. The case deserves a deeper look. At stake are important choices about our constitutional structure and the relationship between statutory and constitutional rights.

The obscurity of the case is not for the lack of lurid facts. As a five-year old kindergartner, Jacqueline Fitzgerald was sexually harassed by an older boy on the school bus which she rode to school every morning. The abuse occurred regularly over a sixth month period of time. When Jacqueline told her parents, they wasted no time in reporting the conduct to school officials. At this point, the parties’ accounts diverge sharply, as is often the case in such litigation. The parents claim that the school did not do enough to remedy the harassment, effectively putting the onus on Jacqueline to find another way to get to school, with no consequences for the boy who harassed her. The school claims that it responded appropriately but that the investigation was inconclusive. Unsatisfied with the school’s response, Jacqueline’s parents brought a lawsuit against the school and its superintendent, alleging violations of Title IX and the equal protection clause. The equal protection claim was asserted under Section 1983, a Reconstruction era statute that creates a cause of action for violations of federal rights, both statutory and constitutional, that occur under color of state law. Section 1983 is the primary vehicle for individuals to assert their constitutional rights against state officials.

The district court never reached the equal protection claim because it disposed of the case on the Title IX claim alone. Instead, after ruling that the plaintiffs lost on the Title IX claim on the merits, the court threw out the equal protection claim without reaching its merits on the grounds that Title IX precludes equal protection claims for the same conduct. The court’s preclusion ruling is especially notable because the plaintiffs argued for a different standard of liability under the equal protection claim than the standard that applied to the Title IX claim.

The liability standards governing Title IX sexual harassment claims were set out in a pair of Supreme Court cases from the late 1990s. In order to be liable for sexual harassment that harms a student, school officials must have actual notice and respond with deliberate indifference. In adopting this standard, which is much tougher than the liability standard that applies to sexual harassment by non-agents (coworkers and third parties) in the workplace, the Court emphasized the distinctive nature of Title IX as legislation adopted under the Spending clause and the statute’s particular administrative enforcement scheme. Because the Court’s rationale for adopting such a tough liability standard was specific to Title IX, it is not at all a foregone conclusion that the same liability standard should govern equal protection claims for sexual harassment in school. When equal protection claims have been asserted against public employers, courts have applied liability standards similar to those that apply in Title VII cases, which are much less stringent than the actual notice and deliberate indifference standard that applies under Title IX.

In the Fitzgerald case, the district court ruled that the facts could not establish deliberate indifference under Title IX. Although the investigation could have been more thorough and the school could have responded better, the court concluded that it fell short of deliberate indifference. However, the plaintiffs argued, the disposition of the Title IX claim did not necessarily mean that their equal protection claim would also fail on the merits. They argued that a different liability standard should apply to the equal protection claim, and that the school could be liable for violating Jacqueline’s equal protection rights even if it was not liable under Title IX. The court did not reach the plaintiffs’ equal protection arguments, however, leaving open the possibility that the Title IX and equal protection claims might indeed come out differently. Instead, the court ruled that Title IX precludes section 1983 claims for violations of constitutional rights.

The First Circuit agreed. Remarkably, like the district court, the First Circuit’s ruling applies even if the constitutional claim might succeed on the merits where the Title IX claim failed. In a sweeping statement, the First Circuit declared that “[t]he comprehensiveness of Title IX’s remedial scheme … indicates that Congress saw Title IX as the sole means of vindicating the constitutional right to be free from gender discrimination perpetrated by educational institutions ….” At a later point in its opinion, the First Circuit described the rule as barring constitutional claims that are “virtually identical” to the statutory claim. Apparently “virtually identical” means something quite different from “actually identical” if a plaintiff might win one claim while losing the other.

This brings us to the question that is ultimately at stake in the Fitzgerald case: are our constitutional rights so fragile that they can be displaced by a mere statute—in this case, one that does not create any express litigation enforcement scheme at all (Title IX is enforceable in court through an implied private right of action), much less one that expressly displaces constitutional claims for the same conduct? What happened to the maxim learned by every high school civics student that the Constitution is the Supreme Law of the Land, trumping mere legislative enactments? And if this is indeed the state of our law, how did we get here?

In a nutshell, the current mess of preclusion law in the lower courts is traceable to the Supreme Court’s decision in 1981 in Middlesex County Sewage Authority v. National Sea Clammers Association, which held that statutory rights created by a comprehensive statute could not be enforced under Section 1983 as an end run around the enforcement scheme created by the newer statute. This ruling is unremarkable and entirely defensible: the scope and enforcement of statutory rights created by Congress should depend on Congress’ intent. If section 1983 could be used as a vehicle for asserting newly created statutory rights, contrary to Congress’ intent, Congress might be less likely to create new statutory rights in the first place.

The difficulty surfaced three years later in Smith v. Robinson, the first and only time the Supreme Court has ruled that a federal statute precludes the use of section 1983 to assert constitutional rights based on the same conduct. In this case, t
he Court found that a federal statute, the Education for the Handicapped Act, was so comprehensive that Congress intended to displace constitutional claims for a free and appropriate public education under the equal protection clause. However, even here, the Court’s concern was to avoid the short-circuiting of a detailed enforcement scheme that would otherwise occur if claims were brought directly for constitutional violations under section 1983. There was no suggestion that the content of the rights under the statute and the Constitution varied in any respect. In fact, the Court described the statute as effectuating the constitutional rights of disabled persons under the equal protection clause. It is a far different thing to rule, as the First Circuit did in Fitzgerald, that federal legislation has substituted statutory rights for constitutional rights that may differ in their scope and content.

Ultimately, this case raises important questions about the role of Congress in effectuating constitutional rights, and the role of courts in interpreting and enforcing the Constitution. In briefs filed in the Fitzgerald case, plaintiffs and their amici seem to assume that congressional intent is dispositive on the question of precluding constitutional rights. They persuasively argue that Congress never intended Title IX to displace constitutional rights for sex discrimination in education, but they seem to concede that, if Congress really did intend to do so, it could displace constitutional equal protection rights with a set of statutory rights different in content.

If indeed that is the state of the law, it is in great tension with the judicial supremacy that is at the core of our constitutional structure. In that structure, Congress certainly has the power to set the terms of how people go to court to enforce their constitutional rights—including setting limits on federal court jurisdiction and determining the procedures for asserting such claims. But can Congress go so far as to effectively narrow the content of constitutional rights by passing a statute with the intent to displace broader constitutional rights with less generous statutory ones? Or even by passing a statute with “virtually” identical rights, where there is significant “play” in the word “virtually”? Perhaps the answer turns on the extent to which, as some commentators insist, the Constitution is not “self-executing,” such that the enforcement of Constitutional rights by individuals ultimately turns on Congress’ assent and authorization. This raises the question of whether constitutional rights are or should be so fragile. Modern case law has recognized a number of exceptions to the purportedly non-self-executing Constitution, as in the famous Bivens case against federal officials, and in actions for injunctive relief to halt government actors from trampling on the Constitution. Vindicating individual constitutional rights should not be so precarious as to depend on the care taken by Congress not to displace them. If I am wrong and the First Circuit’s ruling in Fitzgerald v. Barnstable is correct, then our constitutional rights are fragile indeed.

Deborah Brake is a professor of law at the University of Pittsburgh
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