Fitzgerald v. Barnstable School Committee

(Slip Opinion) OCTOBER TERM, 2008 1

Syllabus

NOTE: Where it is feasible, a syllabus (headnote) will be released, as is

being done in connection with this case, at the time the opinion is issued.

The syllabus constitutes no part of the opinion of the Court but has been

prepared by the Reporter of Decisions for the convenience of the reader.

See United States v. Detroit Timber & Lumber Co., 200 U. S. 321, 337.

SUPREME COURT OF THE UNITED STATES

Syllabus

FITZGERALD ET VIR v. BARNSTABLE SCHOOL

COMMITTEE ET AL.

CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR

THE FIRST CIRCUIT

No. 07–1125. Argued December 2, 2008—Decided January 21, 2009

Petitioners filed suit against respondents, the local school district’s

governing board and superintendent, alleging that their response to

allegations of sexual harassment of petitioners’ daughter by an older

student was inadequate, raising claims under, inter alia, Title IX of

the Education Amendments of 1972, 20 U. S. C. §1681(a), and 42

U. S. C. §1983 for violation of the Equal Protection Clause of the

Fourteenth Amendment. Among its rulings, the District Court dis

missed the §1983 claim. The First Circuit affirmed, holding that,

under this Court’s precedents, Title IX’s implied private remedy was

sufficiently comprehensive to preclude the use of §1983 to advance

constitutional claims.

Held:

1. Title IX does not preclude a §1983 action alleging unconstitu

tional gender discrimination in schools. Pp. 4–12.

(a) In Middlesex County Sewerage Authority v. National Sea

Clammers Assn., 453 U. S. 1; Smith v. Robinson, 468 U. S. 992; and

Rancho Palos Verdes v. Abrams, 544 U. S. 113, this Court found that

particular statutory enactments precluded §1983 claims where it was

established that Congress intended the statute’s remedial scheme to

“be the exclusive avenue through which a plaintiff may assert [such]

claims,” Smith, supra, at 1009. In determining whether Congress in

tended for a subsequent statute to preclude the enforcement of a fed

eral right under §1983, the Court has placed primary emphasis on

the nature and extent of that statute’s remedial scheme. See Sea

Clammers, 453 U. S., at 20. Where the §1983 claim alleges a consti

tutional violation, a lack of congressional intent to preclude may also

be inferred from a comparison of the rights and protections of the

2 FITZGERALD v. BARNSTABLE SCHOOL COMM.

Syllabus

other statute and those existing under the Constitution. Pp. 4–7.

(b) In the absence of a comprehensive remedial scheme compara

ble to those at issue in Sea Clammers, Smith, and Rancho Palos

Verdes, and in light of the divergent coverage of Title IX and the

Equal Protection Clause, it must be concluded that Title IX was not

meant to be an exclusive mechanism for addressing gender discrimi

nation in schools, or a substitute for §1983 suits as a means of enforc

ing constitutional rights. Pp. 7–12.

(i) Title IX’s only express enforcement mechanism, 20 U. S. C.

§1682, is an administrative procedure resulting in the withdrawal of

federal funding from noncompliant institutions. This Court has also

recognized an implied private right of action, Cannon v. University of

Chicago, 441 U. S. 677, 717, for which both injunctive relief and

damages are available, Franklin v. Gwinnett County Public Schools,

503 U. S. 60, 76. These remedies stand in stark contrast to the “un

usually elaborate,” “carefully tailored,” and “restrictive” enforcement

schemes of the statutes in Sea Clammers, Smith, and Rancho Palos

Verdes. Unlike those statutes, Title IX has no administrative ex

haustion requirement and no notice provisions. Plaintiffs can file di

rectly in court under its implied private right of action and can obtain

the full range of remedies. Accordingly, parallel and concurrent

§1983 claims will neither circumvent required procedures nor allow

access to new remedies. Moreover, under Rancho Palos Verdes, “[t]he

provision of an express, private means of redress in the statute itself”

is a key consideration in determining congressional intent, and “the

existence of a more restrictive private remedy for statutory violations

has been the dividing line between those cases in which . . . an action

would lie under §1983 and those in which we have held that it would

not.” 544 U. S., at 121. Title IX contains no express private remedy,

much less a more restrictive one. Pp. 7–9.

(ii) Because Title IX’s protections are narrower in some re

spects and broader in others than those guaranteed under the Equal

Protection Clause, the Court cannot agree with the First Circuit that

Congress saw Title IX as the sole means of correcting unconstitu

tional gender discrimination in schools. Title IX reaches institutions

and programs that receive federal funds, 20 U. S. C. §1681(a), which

may include nonpublic institutions, §1681(c), but it has consistently

been interpreted as not authorizing suit against school officials,

teachers, and other individuals. Moreover, while the constitutional

provision reaches only state actors, §1983 equal protection claims

may be brought against individuals as well as state entities. West v.

Atkins, 487 U. S. 42, 48–51. And Title IX exempts from its restric

tions several activities that may be challenged on constitutional

grounds. See, e.g., §1681(a)(5). Even where particular activities and

Cite as: 555 U. S. ____ (2009) 3

Syllabus

particular defendants are subject to both Title IX and the Equal Pro

tection Clause, the standards for establishing liability may not be

wholly congruent. Compare Gebser v. Lago Vista Independent School

Dist., 524 U. S. 274, 290, with Monell v. New York City Dept. of Social

Servs., 436 U. S. 658, 694. Pp. 9–11.

(iii) The Court’s conclusion is consistent with Title IX’s context

and history. Because the Congress that enacted Title IX authorized

the Attorney General to intervene in private suits alleging sex dis

crimination violative of the Equal Protection Clause, 42 U. S. C.

§2000h–2, Congress must have explicitly envisioned that private

plaintiffs would bring constitutional claims to challenge gender dis

crimination via §1983. Moreover, Title IX was modeled after Title VI

of the Civil Rights Act of 1964, Cannon, supra, at 694–695, and, at

the time of Title IX’s 1972 enactment, the lower courts routinely in

terpreted Title VI to allow for parallel and concurrent §1983 claims.

Absent contrary evidence, it follows that Congress intended Title IX

to be interpreted similarly to allow for parallel and concurrent §1983

claims. Pp. 11–12.

2. As neither of the courts below addressed the merits of petition

ers’ constitutional claims or even the sufficiency of their pleadings,

this Court will not do so in the first instance here. Pp. 12–13.

504 F. 3d 165, reversed and remanded.

ALITO, J., delivered the opinion for a unanimous Court.

Cite as: 555 U. S. ____ (2009) 1

Opinion of the Court

NOTICE: This opinion is subject to formal revision before publication in the

preliminary print of the United States Reports. Readers are requested to

notify the Reporter of Decisions, Supreme Court of the United States, Wash

ington, D. C. 20543, of any typographical or other formal errors, in order

that corrections may be made before the preliminary print goes to press.

SUPREME COURT OF THE UNITED STATES

_________________

No. 07–1125

_________________

LISA FITZGERALD, ET VIR, PETITIONERS v. BARN-

STABLE SCHOOL COMMITTEE ET AL.

ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF

APPEALS FOR THE FIRST CIRCUIT

[January 21, 2009]

JUSTICE ALITO delivered the opinion of the Court.

The issue in this case of peer-on-peer sexual harassment

is whether Title IX of the Education Amendments of 1972,

86 Stat. 373, 20 U. S. C. §1681(a), precludes an action

under Rev. Stat. §1979, 42 U. S. C. §1983, alleging uncon

stitutional gender discrimination in schools. The Court of

Appeals for the First Circuit held that it does. 504 F. 3d

165 (2007). We reverse.

I

Because this case comes to us on a motion to dismiss

under Federal Rule of Civil Procedure 12(b)(6), we assume

the truth of the facts as alleged in petitioners’ complaint.

During the 2000–2001 school year, the daughter of peti

tioners Lisa and Robert Fitzgerald was a kindergarten

student in the Barnstable, Massachusetts, school system,

and rode the bus to school each morning. One day she told

her parents that, whenever she wore a dress, a third-grade

boy on the school bus would bully her into lifting her skirt.

Lisa Fitzgerald immediately called the school principal,

Frederick Scully, who arranged a meeting later that day

with the Fitzgeralds, their daughter, and another school

2 FITZGERALD v. BARNSTABLE SCHOOL COMM.

Opinion of the Court

official, Lynda Day. Scully and Day then questioned the

alleged bully, who denied the allegations. Day also inter

viewed the bus driver and several students who rode the

bus. She concluded that she could not corroborate the

girl’s version of the events.

The Fitzgeralds’ daughter then provided new details of

the alleged abuse to her parents, who relayed them to

Scully. Specifically, she told her parents that in addition

to bullying her into raising her skirt, the boy coerced her

into pulling down her underpants and spreading her legs.

Scully scheduled a second meeting with the Fitzgeralds to

discuss the additional details and again questioned the

boy and other students.

Meanwhile, the local police department conducted an

independent investigation and concluded there was insuf

ficient evidence to bring criminal charges against the boy.

Based partly on the police investigation and partly on the

school’s own investigation, Scully similarly concluded

there was insufficient evidence to warrant discipline.

Scully did propose remedial measures to the Fitzgeralds.

He suggested transferring their daughter to a different

bus or leaving rows of empty seats between the kinder

garteners and older students on the original bus. The

Fitzgeralds felt that these proposals punished their

daughter instead of the boy and countered with alterna

tive proposals. They suggested transferring the boy to a

different bus or placing a monitor on the original bus. The

Barnstable school system’s superintendent, Russell Dever,

did not act on these proposals.

The Fitzgeralds began driving their daughter to school

to avoid further bullying on the bus, but she continued to

report unsettling incidents at school. The Fitzgeralds

reported each incident to Scully. The Fitzgeralds’ daugh

ter had an unusual number of absences during the re

mainder of the school year.

In April 2002, the Fitzgeralds filed suit in District

Cite as: 555 U. S. ____ (2009) 3

Opinion of the Court

Court, alleging that the school system’s response to their

allegations of sexual harassment had been inadequate,

resulting in further harassment to their daughter. Their

complaint included: (1) a claim for violation of Title IX

against the Barnstable School Committee (the school

system’s governing body), (2) claims under 42 U. S. C.

§1983 for violations of Title IX and the Equal Protection

Clause of the Fourteenth Amendment against the school

committee and Dever, and (3) Massachusetts state-law

claims against the school committee and Dever. The

school committee and Dever (respondents here), filed a

motion to dismiss, which the District Court granted as to

the §1983 claims and the state-law claims. On the Title

IX claim, the school committee filed a motion for summary

judgment, which the District Court also granted. Hunter

v. Barnstable School Committee, 456 F. Supp. 2d 255, 266

(Mass. 2006).

The Court of Appeals for the First Circuit affirmed. 504

F. 3d 165. Turning first to the Title IX claim against the

school committee, the court noted three points that were

not in dispute: (1) the school committee was the recipient

of federal funds and was therefore subject to Title IX, (2)

the school committee had actual knowledge of the harass

ment the Fitzgeralds’ daughter suffered, and (3) if the

allegations of the complaint were true, the harassment

was “severe, pervasive and objectively offensive.” Id., at

172. The court concluded that the Fitzgeralds’ Title IX

claim lacked merit, however, because the response of the

school committee and Dever to the reported harassment

had been objectively reasonable. Id., at 175.

The Court of Appeals turned next to the Fitzgeralds’

§1983 claims. Relying on this Court’s precedents in Mid

dlesex County Sewerage Authority v. National Sea Clam

mers Assn., 453 U. S. 1 (1981), Smith v. Robinson, 468

U. S. 992 (1984), and Rancho Palos Verdes v. Abrams, 544

U. S. 113 (2005), the court characterized Title IX’s implied

4 FITZGERALD v. BARNSTABLE SCHOOL COMM.

Opinion of the Court

private remedy as “sufficiently comprehensive” to preclude

use of §1983 to advance statutory claims based on Title IX

itself. 504 F. 3d, at 179. This reasoning, the court held,

“appl[ied] with equal force” to the constitutional claims.

Ibid. The court concluded that “Congress saw Title IX as

the sole means of vindicating the constitutional right to be

free from gender discrimination perpetrated by educa

tional institutions.” Ibid.

The Court of Appeals’ decision deepened a conflict

among the Circuits regarding whether Title IX precludes

use of §1983 to redress unconstitutional gender discrimi

nation in schools. Compare Bruneau ex rel. Schofield v.

South Kortright Central School Dist., 163 F. 3d 749, 758–

759 (CA2 1998); Waid v. Merrill Area Public Schools 91

F. 3d 857, 862–863 (CA7 1996); Pfeiffer v. Marion Center

Area School Dist., 917 F. 2d 779, 789 (CA3 1990), with

Communities for Equity v. Michigan High School Athletic

Assn., 459 F. 3d 676, 691 (CA6 2006); Crawford v. Davis,

109 F. 3d 1281, 1284 (CA8 1997); Seamons v. Snow, 84

F. 3d 1226, 1234 (CA10 1996). We granted certiorari to

resolve this conflict, 553 U. S. ___ (2008), and we now

reverse.

II

A

In relevant part, 42 U. S. C. §1983, provides:

“Every person who, under color of any statute, ordi

nance, regulation, custom, or usage, of any State or

Territory or the District of Columbia, 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 immu

nities 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.”

Cite as: 555 U. S. ____ (2009) 5

Opinion of the Court

In three cases, this Court has found that statutory enact

ments precluded claims under this statute. Sea Clam

mers, supra; Smith, supra; Rancho Palos Verdes, supra.

These cases establish that “[t]he crucial consideration is

what Congress intended.” Smith, 468 U. S., at 1012. If

Congress intended a statute’s remedial scheme to “be the

exclusive avenue through which a plaintiff may assert

[the] claim,” id., at 1009, the §1983 claims are precluded.

See Rancho Palos Verdes, 544 U. S., at 120–121 (“The

critical question, then, is whether Congress meant the

judicial remedy authorized by [the statute] to coexist with

an alternative remedy available in a §1983 action”).

In those cases in which the §1983 claim is based on a

statutory right, “evidence of such congressional intent may

be found directly in the statute creating the right, or

inferred from the statute’s creation of a comprehensive

enforcement scheme that is incompatible with individual

enforcement under §1983.” Id., at 120 (internal quotation

marks omitted). In cases in which the §1983 claim alleges

a constitutional violation, lack of congressional intent may

be inferred from a comparison of the rights and protec

tions of the statute and those existing under the Constitu

tion. Where the contours of such rights and protections

diverge in significant ways, it is not likely that Congress

intended to displace §1983 suits enforcing constitutional

rights. Our conclusions regarding congressional intent

can be confirmed by a statute’s context. Id., at 127

(BREYER, J., concurring) (“[C]ontext, not just literal text,

will often lead a court to Congress’ intent in respect to a

particular statute”).

In determining whether a subsequent statute precludes

the enforcement of a federal right under §1983, we have

placed primary emphasis on the nature and extent of that

statute’s remedial scheme. See Sea Clammers, supra, at

20 (“When the remedial devices provided in a particular

Act are sufficiently comprehensive, they may suffice to

6 FITZGERALD v. BARNSTABLE SCHOOL COMM.

Opinion of the Court

demonstrate congressional intent to preclude the remedy

of suits under §1983”).

Sea Clammers illustrates this approach. The plaintiffs

brought suit under §1983 for violations of the Federal

Water Pollution Control Act and the Marine Protection,

Research, and Sanctuaries Act of 1972. This Court’s

analysis focused on these two statutes’ “unusually elabo

rate enforcement provisions,” which authorized the Envi

ronmental Protection Agency to seek civil and criminal

penalties for violations, permitted “ ‘any interested per

son’ ” to seek judicial review, and contained detailed citi

zen suit provisions allowing for injunctive relief. 453

U. S., at 13–14. Allowing parallel §1983 claims to proceed,

we concluded, would have thwarted Congress’ intent in

formulating and detailing these provisions.

In Smith, the plaintiffs alleged deprivation of a free,

appropriate public education for their handicapped child,

in violation of the Education of the Handicapped Act

(EHA) and the Due Process and Equal Protection Clauses

of the Fourteenth Amendment. Departing from the pat

tern of the plaintiffs in Sea Clammers, the Smith plaintiffs

relied on §1983 to assert independent constitutional

rights, not to assert the statutory rights guaranteed by the

EHA. As in Sea Clammers, however, this Court focused

on the statute’s detailed remedial scheme in concluding

that Congress intended the statute to provide the sole

avenue for relief. Smith, 468 U. S., at 1011 (noting “the

comprehensive nature of the procedures and guarantees

set out in the [the statute] and Congress’ express efforts to

place on local and state educational agencies the primary

responsibility for developing a plan to accommodate the

needs of each individual handicapped child”).

In Rancho Palos Verdes, we again focused on a statute’s

remedial scheme in inferring congressional intent for

exclusivity. After being denied a permit to build a radio

tower on his property, the plaintiff brought claims for

Cite as: 555 U. S. ____ (2009) 7

Opinion of the Court

injunctive relief under the Telecommunications Act of

1996 (TCA) and for damages and attorney’s fees under

§1983. Noting that the TCA provides highly detailed and

restrictive administrative and judicial remedies, and

explaining that “limitations upon the remedy contained in

the statute are deliberate and are not to be evaded

through §1983,” we again concluded that Congress must

have intended the statutory remedies to be exclusive. 544

U. S., at 124.

In all three cases, the statutes at issue required plain

tiffs to comply with particular procedures and/or to ex

haust particular administrative remedies prior to filing

suit. Sea Clammers, supra, at 6; Smith, supra, at 1011–

1012; Rancho Palos Verdes, supra, at 122. Offering plain

tiffs a direct route to court via §1983 would have circum

vented these procedures and given plaintiffs access to

tangible benefits—such as damages, attorney’s fees, and

costs—that were unavailable under the statutes.1 “Allow

ing a plaintiff to circumvent” the statutes’ provisions in

this way would have been “inconsistent with Congress’

carefully tailored scheme.” Smith, supra, at 1012.

——————

1 The statutes at issue in Sea Clammers and Smith did not allow for

damages. The statute at issue in Rancho Palos Verdes did not ex

pressly allow for damages, but some lower courts interpreted it to do so.

The statutes at issue in Smith and Rancho Palos Verdes did not allow

for attorney’s fees and costs. See Sea Clammers, 453 U. S., at 6–7, 13–

14 (addressing the Federal Water Pollution Control Act, 86 Stat. 816,

as amended, 33 U. S. C. §1251 et seq., and the Marine Protection,

Research, and Sanctuaries Act of 1972, 86 Stat. 1052, as amended, 33

U. S. C. §1401 et seq.); Smith, 468 U. S., at 1010–1011 (addressing the

Education of the Handicapped Act, 84 Stat. 175, as amended, 20

U. S. C. §1400 et seq.); Rancho Palos Verdes, 544 U. S., at 122–123, and

nn. 3, 4 (addressing the Telecommunications Act of 1996, 110 Stat. 56,

47 U. S. C. §332(c)(7)).

8 FITZGERALD v. BARNSTABLE SCHOOL COMM.

Opinion of the Court

B

1

Section 901(a) of Title IX provides:

“No person in the United States shall, on the basis of

sex, be excluded from participation in, be denied the

benefits of, or be subjected to discrimination under

any education program or activity receiving Federal

financial assistance.” 20 U. S. C. §1681(a).

The statute’s only express enforcement mechanism, §1682,

is an administrative procedure resulting in the with

drawal of federal funding from institutions that are not in

compliance. In addition, this Court has recognized an

implied private right of action. Cannon v. University of

Chicago, 441 U. S. 677, 717 (1979). In a suit brought

pursuant to this private right, both injunctive relief and

damages are available. Franklin v. Gwinnett County

Public Schools, 503 U. S. 60, 76 (1992).

These remedies—withdrawal of federal funds and an

implied cause of action—stand in stark contrast to the

“unusually elaborate,” “carefully tailored,” and “restric

tive” enforcement schemes of the statutes at issue in Sea

Clammers, Smith, and Rancho Palos Verdes. Unlike those

statutes, Title IX has no administrative exhaustion re

quirement and no notice provisions. Under its implied

private right of action, plaintiffs can file directly in court,

Cannon, supra, at 717, and can obtain the full range of

remedies, see Franklin, supra, at 72 (concluding that

“Congress did not intend to limit the remedies available in

a suit brought under Title IX”). As a result, parallel and

concurrent §1983 claims will neither circumvent required

procedures, nor allow access to new remedies.

Moreover, this Court explained in Rancho Palos Verdes

that “[t]he provision of an express, private means of re

dress in the statute itself” is a key consideration in deter

mining congressional intent, and that “the existence of a

Cite as: 555 U. S. ____ (2009) 9

Opinion of the Court

more restrictive private remedy for statutory violations

has been the dividing line between those cases in which

we have held that an action would lie under §1983 and

those in which we have held that it would not.” 544 U. S.,

at 121 (emphasis added). As noted, Title IX contains no

express private remedy, much less a more restrictive one.

This Court has never held that an implied right of action

had the effect of precluding suit under §1983, likely be

cause of the difficulty of discerning congressional intent in

such a situation. See Franklin, supra, at 76 (SCALIA, J.,

concurring in judgment) (“Quite obviously, the search for

what was Congress’ remedial intent as to a right whose

very existence Congress did not expressly acknowledge is

unlikely to succeed”). Mindful that we should “not lightly

conclude that Congress intended to preclude reliance on

§1983 as a remedy for a substantial equal protection

claim,” Smith, 468 U. S., at 1012, we see no basis for doing

so here.

2

A comparison of the substantive rights and protections

guaranteed under Title IX and under the Equal Protection

Clause lends further support to the conclusion that Con

gress did not intend Title IX to preclude §1983 constitu

tional suits. Title IX’s protections are narrower in some

respects and broader in others. Because the protections

guaranteed by the two sources of law diverge in this way,

we cannot agree with the Court of Appeals that “Congress

saw Title IX as the sole means of vindicating the constitu

tional right to be free from gender discrimination perpe

trated by educational institutions.” 504 F. 3d, at 179.

Title IX reaches institutions and programs that receive

federal funds, 20 U. S. C. §1681(a), which may include

nonpublic institutions, §1681(c), but it has consistently

been interpreted as not authorizing suit against school

officials, teachers, and other individuals, see, e.g., Hartley

10 FITZGERALD v. BARNSTABLE SCHOOL COMM.

Opinion of the Court

v. Parnell, 193 F. 3d 1263, 1270 (CA11 1999). The Equal

Protection Clause reaches only state actors, but §1983

equal protection claims may be brought against individu

als as well as municipalities and certain other state enti

ties. West v. Atkins, 487 U. S. 42, 48–51 (1988).

Title IX exempts from its restrictions several activities

that may be challenged on constitutional grounds. For

example, Title IX exempts elementary and secondary

schools from its prohibition against discrimination in

admissions, §1681(a)(1); it exempts military service

schools and traditionally single-sex public colleges from all

of its provisions, §§1681(a)(4)–(5). Some exempted activi

ties may form the basis of equal protection claims. See

United States v. Virginia, 518 U. S. 515, 534 (1996) (men

only admissions policy at Virginia Military Institute vio

lated the Equal Protection Clause); Mississippi Univ. for

Women v. Hogan, 458 U. S. 718, 731 (1982) (women-only

admission policy at a traditionally single-sex public college

violated the Equal Protection Clause).

Even where particular activities and particular defen

dants are subject to both Title IX and the Equal Protection

Clause, the standards for establishing liability may not be

wholly congruent. For example, a Title IX plaintiff can

establish school district liability by showing that a single

school administrator with authority to take corrective

action responded to harassment with deliberate indiffer

ence. Gebser v. Lago Vista Independent School Dist., 524

U. S. 274, 290 (1998). A plaintiff stating a similar claim

via §1983 for violation of the Equal Protection Clause by a

school district or other municipal entity must show that

the harassment was the result of municipal custom, policy,

or practice. Monell v. New York City Dept. of Social

Servs., 436 U. S. 658, 694 (1978).

In light of the divergent coverage of Title IX and the

Equal Protection Clause, as well as the absence of a com

prehensive remedial scheme comparable to those at issue

Cite as: 555 U. S. ____ (2009) 11

Opinion of the Court

in Sea Clammers, Smith, and Rancho Palos Verdes, we

conclude that Title IX was not meant to be an exclusive

mechanism for addressing gender discrimination in

schools, or a substitute for §1983 suits as a means of en

forcing constitutional rights. Accordingly, we hold that

§1983 suits based on the Equal Protection Clause remain

available to plaintiffs alleging unconstitutional gender

discrimination in schools.

3

This conclusion is consistent with Title IX’s context and

history. In enacting Title IX, Congress amended §902, 78

Stat. 266–267, 42 U. S. C. §2000h–2 to authorize the

Attorney General to intervene in private suits alleging

discrimination on the basis of sex in violation of the Equal

Protection Clause. See §906, 86 Stat. 375 (adding the

term “sex” to the listed grounds, which already included

race, color, religion or national origin). Accordingly, it

appears that the Congress that enacted Title IX explicitly

envisioned that private plaintiffs would bring constitu

tional claims to challenge gender discrimination; it must

have recognized that plaintiffs would do so via 42 U. S. C.

§1983.

Moreover, Congress modeled Title IX after Title VI of

the Civil Rights Act of 1964, Cannon, 441 U. S., at 694–

695, and passed Title IX with the explicit understanding

that it would be interpreted as Title VI was, id., at 696.

At the time of Title IX’s enactment in 1972, Title VI was

routinely interpreted to allow for parallel and concurrent

§1983 claims, see, e.g., Alvarado v. El Paso Independent

School Dist., 445 F. 2d 1011 (CA5 1971); Nashville I–40

Steering Comm. v. Ellington, 387 F. 2d 179 (CA6 1967);

Bossier Parish School Bd. v. Lemon, 370 F. 2d 847 (CA5

1967), and we presume Congress was aware of this when

it passed Title IX, see Franklin, 503 U. S., at 71 (in assess

ing Congress’ intent, “we evaluate the state of the law

12 FITZGERALD v. BARNSTABLE SCHOOL COMM.

Opinion of the Court

when the Legislature passed Title IX”). In the absence of

any contrary evidence, it follows that Congress intended

Title IX to be interpreted similarly to allow for parallel

and concurrent §1983 claims. At the least, this indicates

that Congress did not affirmatively intend Title IX to

preclude such claims.2

III

One matter remains. Respondents contend that the

judgment of the Court of Appeals should be affirmed on

independent grounds—namely, that the Fitzgeralds have

no actionable §1983 claim on which to proceed. They

contend that the Court of Appeals’ holding that neither

the school committee nor Dever acted with deliberate

indifference is conclusive and forecloses a §1983 constitu

tional claim based on a similar theory of liability. They

contend that all other §1983 constitutional claims on these

facts are precluded by the Fitzgeralds’ failure to allege

such claims adequately or to preserve them on appeal.

The Fitzgeralds respond that they have no intention of

relitigating the issue of deliberate indifference. They

intend, they say, to advance claims of discriminatory

——————

2 Respondents argue that constitutional protections against gender

discrimination were minimal in 1972, as the only gender-based equal

protection case this Court had decided employed a rational basis

standard. Reed v. Reed, 404 U. S. 71, 76 (1971). But see Gunther, In

Search of Evolving Doctrine on a Changing Court: A Model for Newer

Equal Protection, 86 Harv. L. Rev. 1, 34 (1972) (Reed exemplified the

application of rationality review “with bite”). They further argue that

because Congress could not have viewed the Equal Protection Clause as

offering a meaningful remedy for sex discrimination by schools, it could

not have envisioned and intended for Title IX and §1983 constitutional

claims to proceed side by side. But the relevant question is not whether

Congress envisioned that the two types of claims would proceed to

gether in addressing gender discrimination in schools; it is whether

Congress affirmatively intended to preclude this result. The limited

nature of constitutional protections against gender discrimination in

1972 offers no evidence that Congress did.

Cite as: 555 U. S. ____ (2009) 13

Opinion of the Court

treatment in the investigation of student behavior and in

the treatment of student complaints, which they were

foreclosed from developing at the earliest stages of litiga

tion by the dismissal of the §1983 claims.

As the Fitzgeralds note, no court has addressed the

merits of their constitutional claims or even the sufficiency

of their pleadings. Ordinarily, “we do not decide in the

first instance issues not decided below,” National Colle

giate Athletic Assn. v. Smith, 525 U. S. 459, 470 (1999),

and we see no reason for doing so here.

Accordingly, we reverse the Court of Appeals’ judgment

that the District Court’s dismissal of the §1983 claims was

proper and remand this case for further proceedings con

sistent with this opinion.

It is so ordered.