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At 11 a.m. today, the Supreme Court will hear arguments in a case challenging the implementation of Title IX in the courts. According to the SCOTUS Blog, the case, Fitzgerald, et vir v. Barnstable School Committee, et al, will decide “whether the passage of Title IX barred future constitutionally based gender discrimination claims against federally funded schools.”

The case hinges on an apparent conflict between Title XI, which ensures equal opportunity in schools based on gender, and Section 1983 of United States Code, which states:

Every person who . . . 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 proper proceeding for redress.

Some background on Fitzgerald v. Barnstable School Committee, from On the Docket:

During the 2000-2001 school year, Jacqueline Fitzgerald, a kindergartener in Hyannis, Mass., told her parents that an older student on the school bus had bullied her into lifting up her skirt. Her parents contacted school administrators, and Jacqueline then identified the boy who she alleged had been harassing her. The school did not have a written policy to address peer-on-peer sexual harassment.

The school, along with local law enforcement, began investigating the situation. The police determined that “there was insufficient evidence to proceed criminally” and the school ultimately decided not to take disciplinary action against the boy.

School officials suggested placing Jacqueline on a different bus or segregating her and the other kindergartners from the older students on the bus. Her parents rejected both of these options and proposed that the school either transfer the boy to a different bus or place an adult
monitor on the bus to ensure that no harassment occurred.

After the school district declined these options, the parents filed suit in the U.S. District Court for the District of Massachusetts. They alleged violations of Title IX, the U.S. Constitution and Massachusetts state law. In particular, they argued that Jacqueline had “a clearly established right under state and federal statutory and constitutional law to equal access to all benefits and privileges of a public education, and a right to be free of sexual harassment in school.”

The girl’s parents filed claims under Section 1983 and Title IX; a First Circuit Court of Appeals, after denying the Title IX claim, maintained that “the potential availability of relief under Title IX preempts additional, constitutional claims”—-like those under Section 1983.