What Price Victory: A Unanimous Supreme Court Permits § 1983 Damages Claims for Constitutional and Title IX Violations

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Education Law Reporter


section 1983, title 9, damages


The Eighth Circuit in Brenden had very early recognized that equitable relief was available under § 1983 to strike down discriminatory rules. Where a public high school in Brenden had provided competitive tennis, cross country running and cross country skiing for boys but no comparable sports for girls, the Eighth Circuit invalidated a state high school athletic association rule prohibiting female students from trying out and participating on the boys' teams. The court of appeals reasoned that “sex–based classifications are subject to scrutiny by the courts under the Equal Protection Clause and will be struck down when they provide dissimilar treatment for men and women who are similarly situated with respect to the object of the classification.

Subsequent federal circuits have split as to whether plaintiffs in cases like Brenden could also seek damages for an Equal Protection Clause violation under § 1983.The U.S. Supreme Court granted certiorari in a 2007 First Circuit decision, Fitzgerald v. Barnstable School Committee (Fitzgerald), to specifically address the question as to whether Title IX's implied right of action included a § 1983 claim for damages to remedy sex discrimination in educational institutions. The Supreme Court's opinion reversed both the federal district and First Circuit decisions. The purposes of this article are to review pertinent prior U.S. Supreme Court decisions on both Title IX and § 1983, to analyze the Fitzgerald lower court and Supreme Court decisions, and to discuss the implications of the Supreme Court's Fitzgerald decision on the operation of educational institutions.


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