Precluding Section 1983 Constitutional Claims: Fitzgerald v. Barnstable School Comm.
It may surprise some readers to learn that there can be cases in which a federal statute is found to preclude § 1983 constitutional claims. This kind of case is different from those cases in which the issue is whether the violation of a federal statute is actionable under § 1983 as a “laws” claim. But one thing these two kinds of cases have in common is that express Congressional intent is dispositive. However–and this unfortunately is often the case–where Congress has not expressly stated its intent, it is left to the courts to discern from Congressional silence whether, in the one case, Congress intended to preclude § 1983 constitutional claims and, in the other case, whether Congress intended to allow a § 1983 “laws” claim for the violation of a particular federal statute.
A major Supreme Court decision addressing preclusion of § 1983 constitutional claims is Smith v. Robinson, 468 U.S. 992 (1984), which held that Congress, when it enacted the Education of the Handicapped Act (EHA), intended to preclude § 1983 equal protection claims identical to statutory EHA claims. Congress responded to Smith in 1986 by amending the EHA to provide explicitly that parallel equal protection and other constitutional claims are not precluded by the EHA. In contrast to Smith, the Supreme Court in Fitzgerald v. Barnstable School Comm., 129 S. Ct. 788 (2009), addressed a similar preclusion issue in connection with the effect of Title IX on § 1983 equal protection claims, but it ruled against preclusion. [Note that Fitzgerald is the last of the five major 2008 Term Supreme Court § 1983 cases that I have blogged about]
In Fitzgerald v. Barnstable School Committee, a unanimous 2009 decision written by Justice Alito, the Court resolved a split in the circuits about Title IX and § 1983 equal protection-sex discrimination claims. It held that Title IX does not preclude such claims. The plaintiffs alleged that the defendant school committee and its superintendent inadequately responded to their allegations of sexual harassment of their daughter by an older student. This, according to plaintiffs, was actionable under both Title IX and the Equal Protection Clause pursuant to § 1983. The First Circuit dismissed the § 1983 claim on the ground that Title IX’s implied private remedy was sufficiently comprehensive to preclude § 1983 equal protection peer-on-peer sexual harassment claims. The Supreme Court reversed.
According to the Court, there was no Congressional intent to preclude: the absence of a comprehensive remedial scheme under Title IX and the divergent coverage of Title IX and the Equal Protection Clause so demonstrated. Title IX’s only enforcement mechanism was an administrative procedure that could result in the withdrawal of federal funds. In addition, Title IX was narrower than the Equal Protection Clause insofar as Title IX did not authorize suits against school officials. But it was also broader insofar as Title IX covered even nonpublic institutions that receive federal funds. Congress thus did not see Title IX as the sole means of remedying sex discrimination in schools. Finally, this conclusion was consistent with Title IX’s context and history, including the modeling of Title IX on Title VII which lower courts had regularly interpreted to allow for Title VII and parallel § 1983 claims.
Fitzgerald was an easy case in light of the lack of congruence between sex discrimination-equal protection claims and Title IX claims. But, in my view, it is preferable to deal with such preclusion cases through presumptions rather than on a statute-by-statute basis. Since these preclusion cases deal with § 1983 constitutional claims where, by definition, Congress is silent, the rebuttable presumption should be that § 1983 constitutional claims are not precluded in the absence of exceedingly persuasive indications that Congress so intended. One might even want to make the presumption stronger by making it conclusive, thereby shifting the burden directly to Congress–where it really belongs–to indicate expressly that it wishes to preclude.
Thus, cases such as Fitzgerald that involve the possible preclusion of § 1983 constitutional claims call for a presumption (rebuttable or conclusive) against precluding § 1983 constitutional claims. Fitzgerald reached the correct result regarding Title IX but it should have adopted a generally applicable presumption rule of the kind suggested. Such a rule would provide greater predictability and ease of administration in addition to promoting the compensation and deterrent functions of § 1983.