LawyersUSA

The U.S. Supreme Court heard oral arguments on this question Tuesday, in a case that gives the justices yet another opportunity to decide whether the existence of a federal statute bars other claims.

Nine months ago, the Court held in Riegel v. Medtronic that state law claims may not be brought over medical devices covered by the Medical Device Amendments of 1976. A similar ruling in this case could have a broad impact, allowing constitutional claims to be trumped by statutes authorized by Congress.

The plaintiffs in the case before the Court were the parents of then 5-year-old Jacqueline Fitzgerald. They were unhappy with her school's response to complains that she was being sexually harassed by a third grader on the bus.

When the school refused to put the other student on a different route or place an adult monitor on the bus, the parents sued, claiming violations of Title IX, the Equal Protection Clause as enforced by §1983 and state laws.

The suit was unsuccessful. The district court held that the parents had not established liability under Title IX's "deliberate indifference" standard and that the §1983 claim was preempted by Title IX.

The 1st Circuit affirmed.

The Supreme Court granted review solely on the question of whether the §1983 claim was precluded by Title IX – an issue that has created a split in the circuits.

Public policy argument

At oral arguments in Fitzgerald v. Barnstable School Committee Charles Rothfeld, counsel at the Washington office of Mayer Brown, represented the student.

He pointed out that the language of Title IX authorizes private actions by state attorneys general "to assert rights, deprivation of equal protection, under the Fourteenth Amendment of the Constitution on account of sex."

"Congress, therefore, specifically contemplated when it enacted Title IX that there would be constitutional litigation challenging gender discrimination on account of sex," Rothfeld said. "And Congress surely knew that that litigation would proceed under §1983."

Rothfeld also made a public policy argument.

"The suggestion that, when Congress enacted Title IX it meant to have the perverse effect of allowing a school, by accepting federal funds, to insulate school policymakers from any personal statutory liability [for] acts of unconstitutional sex discrimination would turn Title IX on its head," he said.

Justice John Paul Stevens noted that the lower court did not rule on the merits of the Equal Protection claim – and that on that issue the case was far from strong.

"You may still lose the lawsuit even if you win here?" he asked.

Rothfeld pointed out that the lower court could have dismissed the constitutional claim along with the Title IX claim on the merits, but chose to rely on the procedural issue of preclusion.

"One would think that the Court of Appeals had it in mind that there was more that could have been decided about the merits," he said.

Kay Hodge, a partner at the Boston office of Stoneman, Chandler & Miller, argued on behalf of the school district. She contended that both claim and issue preclusion barred the §1983 action.

"Title IX … provides a remedy for sex discrimination in a broader category of circumstances than the Equal Protection Clause," Hodge said. "Therefore, having Title IX preclude §1983 Equal Protection claims does not deny [plaintiffs] in this or any other" case a remedy.

When Hodge argued that the constitutional claim would utilize same "deliberate indifference" standard as a Title IX claim to prove her point that the former should be precluded, Justice Antonin Scalia stopped her.

"I don't know why we ought to get into that," Scalia said of the proper standard. "Why can't we just send it back [to the lower court] and let them figure that out?"

"Because there must be an issue in controversy for this Court to send any" case back, Hodge replied.

"He says there is an issue in controversy," Scalia said, referring to Rothfeld's argument. "That's good enough for me."

A decision is expected later this term.

Questions or comments can be directed to the writer at: kimberly.atkins@lawyersusaonline.com