Title IX Oral Argument Yesterday

Yesterday, the Supreme Court heard oral argument in Fitzgerald v. Barnstable School Community.   I wrote about the case Monday, mentioning that I was going to DC for the arguments.   Unfortunately, because of the quality of the lawyering, the arguments were not very helpful in discerning the various Justices’ views on the case.   Unlike Adam Liptak in his review of the case for the New York Times, I don’t think yesterday’s arguments indicate that the parents of the harassed girl are going to win, albeit what he calls a likely “empty” victory.

The problem with the arguments, from both sides, was that neither attorney did a great job focusing the Justices on the issue of whether Title IX, the statute in the abstract, preempts an Equal Protection Clause claim, the constitutional provision in the abstract.   Instead, the attorneys were confusing the Justices by going back and forth between that issue and the issue of whether the facts of this particular case make out two different claims.   Justices Scalia and Stevens tried to focus the arguments by pointing out that the facts of this particular case are irrelevant and the Justices need to address the more general question.   However, much of the argument was focused on the more particular question as it relates to this case.   Justice Breyer even went so far as to suggest that the case be dismissed as improvidently granted because there was no way, having lost on the substance of the Title IX claim, that the parents could prevail on any Equal Protection Clause claim.

While that may be true given the facts of this case (the parents’ attorney argued otherwise, saying that they haven’t had discovery yet on the constitutional claim because it was dismissed so quickly), the Justices have to decide the abstract issue of whether Title IX preempts the Equal Protection Clause.   On that issue, there was not much enlightening discussion yesterday.   The lawyer for the schools seemed to argue against her case by saying that Title IX is broader than the Equal Protection Clause.   While I agree with that statement (and argued that exact point in a 2005 article), the fact that Title IX is broader means that it is not “virtually identical” to the constitutional claim.   And, under Supreme Court precedent, only when a statutory claim is “virtually identical” to the constitutional claim can the Court conclude that Congress intended to preempt the constitutional claim.

Despite the school board attorney’s admission, Justice Ginsburg had trouble seeing how Title IX was broader than the constitutional claim, and neither attorney really helped her understand that.   Moreover, Chief Justice Roberts and Justice Scalia focused, albeit in limited questioning, on the fact that Title IX’s cause of action is implied, not express, so the Court may have more space to limit plaintiffs’ remedies.   Several other Justices never spoke a word.

One issue that came up was whether there were any factual scenarios under which a plaintiff could lose a Title IX claim and win an Equal Protection Clause claim.   The attorney for the school board said there were none.   Justice Breyer clearly indicated that he wanted to hear from the attorney for the family on this point, but that attorney did not address the point on rebuttal.   The answer to the question is that there are such factual scenarios.   First and foremost, there are many exempted schools and policies from Title IX consideration that would be covered by the constitution (state military schools, state schools’ admissions policies, etc.)   But, if the question is about covered institutions and policies, then the answer is single-sex classrooms.   Title IX may not prohibit them, especially given Congress’s endorsement of single-sex schools in the No Child Left Behind Act and the interpreting agency’s recent approval of them, but the constitution may prohibit them.   There’s no definitive ruling on either of these points, but it’s entirely possible that Title IX may allow them while the constitution doesn’t.

Given that argument yesterday really didn’t give anything away, I still stand by my earlier prediction – the case will be decided 5-4 against the parents, with the Court limiting Title IX plaintiffs to Title IX claims alone.

–David S. Cohen