Q and A on Fitzgerald v. Barnstable School Committee Oral Argument
With Martha Davis

Can you briefly review how this case got to the Court?

Jacqueline Fitzgerald, a kindergarten student in Barnstable, Massachusetts, reported to her parents that she had been repeatedly sexually harassed by an older student on her school bus. Her parents immediately contacted the school and an investigation ensued. The alleged perpetrator denied the allegations. The school district offered to have an adult monitor on the bus, or to transfer Jacqueline to a different bus. However, the Fitzgeralds felt that any solution should involve some punishment of the alleged harasser. They rejected the school district's proposals and sued the school in federal court for $3.7 million. The Fitzgeralds asserted violations of Title IX, which bars sex discrimination by schools receiving federal funds, and constitutional equal protection violations. The constitutional claims were brought under 42 U.S.C. § 1983, a Reconstruction-era statute permitting federal judicial review of constitutional violations committed by state actors.

Before any factual development, the federal district court granted the defendant's motion to dismiss both claims. On appeal, the First Circuit concluded that the alleged facts did not demonstrate the “deliberate indifference” necessary to sustain a Title IX claim of peer sexual harassment and that the §1983 claim was simply precluded by Title IX.

The main issues?

The Court granted certiorari on the question of whether Congress intended Title IX of the Education Amendments of 1972, 20 U.S.C. § 1681(a), to preclude the use of 42 U.S.C. § 1983 to present claims of unconstitutional sex discrimination in schools. There is a split in the Circuits on this question.

How did the oral argument go? Which if any side do you think should have come out feeling good about their hour in Court?

The argument was surprisingly unfocused, and Justice Breyer even took the occasion to ask whether perhaps certiorari was improvidently granted. Four members of the Court, Chief Justice Roberts, and Justices Breyer, Ginsburg, and Scalia, generated virtually all of the questions. The usual man-in-the-middle, Justice Kennedy, asked only one question. Neither side scored high marks.

On the one hand, Kay Hodge, representing the school, needed to defend the lower court's ruling that preclusion was appropriate. One of the touchstones for finding preclusion is the assessment that the two remedial schemes are co-extensive. Yet Ms. Hodge's very first statement to the Court was “Title IX . . . provides a remedy for sex discrimination in a broader category of circumstances than the Equal Protection Clause.” Not only did this assertion provoke an extended colloquy with the disbelieving Justice Ginsburg, but—by highlighting the differences between Title IX and the Equal Protection Clause—it seemed to undercut the argument for preclusion.

The Fitzgeralds, on the other hand, represented by Charles Rothfeld, needed to demonstrate that Title IX and the Equal Protection Clause are not co-extensive. While their cause was helped by Ms. Hodges' concession, Mr. Rothfield struggled to identify any scenario which would yield a victory for the Fitzgeralds on remand. The consensus of both the parties and the Justices who spoke was that the Court of Appeals had closed the door on the plaintiff's Equal Protection claim when it found, in the course of its Title IX ruling, that the school district did not demonstrate “deliberate indifference.” Mr. Rothfeld offered that on remand, a lower court might permit the Fitzgeralds to amend their complaint or conduct more discovery, but the Justices (and Mr. Rothfeld) recognized that this outcome was entirely speculative.

What do you think the Court saw as the strongest argument?

Because so few of the Justices participated actively in the questioning, it's difficult to say how “the Court” assessed the arguments. However, when the differences between Title IX and the Equal Protection Clause came into focus—the differences in appropriate parties under each statute, for example—that seemed to provoke interest. Justice Breyer articulated this as the key question that he hoped the Fitzgeralds' attorney would answer.

Which argument seemed to get the least traction with the Justices?

Justice Breyer offered up the idea of dismissing the case without resolving the question presented. That argument seemed to have no other takers.

Were there any questions or discussions that were particularly illuminating or surprising?

The sole question asked by Justice Kennedy addressed the source of the private right of action under Title IX. The Title IX statute does not expressly provide for a private right of action, but the Supreme Court found in an earlier case that such a cause of action exists. Addressing Mr. Rothfeld, Justice Kennedy asked provocatively: “Would you agree that this Court invented the cause of action [under Title IX]?” Chief Justice Roberts and Justice Scalia made similar remarks during the course of the hour. Though they did not spell it out during the argument, they may ultimately articulate the position that the Court has more flexibility in finding preclusive intent when it's looking at a cause of action that is not express in the statute.

What was the media coverage of the argument like? If there was any, do you think it was a fair


While all of the media reports remarked on the fuzziness of the oral arguments, the analyses varied considerably. Adam Liptak of the New York Times suggested that the plaintiff would ultimately prevail. Others, such as Dahlia Lithwick of Slate, were less ready to predict that outcome, particularly given the limited participation of Justice Kennedy.

Any guesses on how the case will be resolved? Did any of the justices show their hand?

With all of the usual caveats about the risks of reading the tea leaves of an oral argument, here's my best guess.

I expect that the School District will prevail. In its most analogous precedent, Smith v. Robinson, the Court found preclusion of an Equal Protection claim with a 6-3 vote along political lines. Written during Chief Justice Burger's tenure, Justices Brennan, Marshall and Stevens dissented, and moderate Justice Powell joined the majority. Justice Stevens is the only member of that Court who is still serving. Following this precedent, if the Court in Barnstable reaches the broad question of preclusion, I would expect the usual 5-4 split in the current court, with Justice Kennedy joining the conservative majority.

The question is, how broad will the ruling be? Justices Ginsberg and Breyer tried valiantly to use the oral argument to move their colleagues toward a narrower resolution of the case—a finding that the Equal Protection claim was precluded in this particular case, but might not be in every case. But Justice Kennedy's sole comment during the argument did not take up that approach and instead suggested that the majority's ruling has the potential to be quite broad.

Eliminating constitutional claims for sex discrimination in schools could have significant implications for a range of civil rights remedies, and would effectively insulate some parties from federal suit for sex discrimination in education. School districts, however, have said that they would applaud the decision on the grounds that it would streamline processes and better enable them to focus their remedial and preventive efforts to combat sex discrimination in education.