FITZGERALD et vir v. BARNSTABLE SCHOOL COMMITTEE et al.

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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 govern
ing 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 vio
lation of the Equal Protection Clause of the Fourteenth Amendment.
Among its rulings, the District Court dismissed 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 unconstitutional
gender discrimination in schools. Pp. 252–259.
(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 [the] claims,”
Smith, supra, at 1009. In determining whether Congress intended for
a subsequent statute to preclude the enforcement of a federal right
under § 1983, the Court has placed primary emphasis on the nature and
extent of that statute’s remedial scheme. See Sea Clammers, supra,
at 20. Where the § 1983 claim alleges a constitutional violation, a lack
of congressional intent to preclude may also be inferred from a compari
son of the rights and protections of the other statute and those existing
under the Constitution. Pp. 252–255.
(b) In the absence of a comprehensive remedial scheme comparable
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 Protec
tion Clause, it must be concluded 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 enforcing constitutional
rights. Pp. 255–259.

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(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 “unusually elabo
rate,” “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 exhaustion requirement
and no notice provisions. Plaintiffs can file directly 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 circum
vent 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 deter
mining congressional intent, and “the existence of a more restrictive
private remedy for statutory violations has been the dividing line be
tween 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. 255–256.
(ii) Because Title IX’s protections are narrower in some respects
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 unconstitutional gender
discrimination in schools. Title IX reaches institutions and programs
that receive federal funds, 20 U. S. C. § 1681(a), which may include non
public institutions, § 1681(c), but it has consistently been interpreted as
not authorizing suit against school officials, teachers, and other individu
als. Moreover, while the constitutional provision reaches only state
actors, § 1983 equal protection claims may be brought against individu
als as well as state entities. West v. Atkins, 487 U. S. 42, 48–51. And
Title IX exempts from its restrictions several activities that may be
challenged on constitutional grounds. See, e. g., § 1681(a)(5). Even
where particular activities and particular defendants are subject to both
Title IX and the Equal Protection 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. 256–258.
(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 discrimi

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248 FITZGERALD v. BARNSTABLE SCHOOL COMM.
Opinion of the Court
nation 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 discrimination 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 interpreted Title VI to allow for
parallel and concurrent § 1983 claims. Absent contrary evidence, it fol
lows that Congress intended Title IX to be interpreted similarly to
allow for parallel and concurrent § 1983 claims. Pp. 258–259.
2. As neither of the courts below addressed the merits of petitioners’
constitutional claims or even the sufficiency of their pleadings, this
Court will not do so in the first instance here. Pp. 259–260.
504 F. 3d 165, reversed and remanded.
Alito, J., delivered the opinion for a unanimous Court.
Charles A. Rothfeld argued the cause for petitioners.
With him on the briefs were Andrew J. Pincus, Dan M.
Kahan, and Anne Glennon.
Kay H. Hodge argued the cause for respondents. With
her on the brief were Joan L. Stein and John M. Simon.*
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 unconstitutional
gender discrimination in schools. The Court of Appeals for
*Briefs of amici curiae urging reversal were filed for the American Bar
Association by H. Thomas Wells, Jr., Richard M. Zuckerman, and Kristen
Galles; for the American Civil Liberties Union et al. by Steven R. Shapiro,
Lenora M. Lapidus, Marcia D. Greenberger, Jocelyn Samuels, and Dina
R. Lassow; for the National Association of Women Lawyers by Margaret
Drew, Beth L. Kaufman, Mary Therese Nagel, and Joanne Simboli Hodge;
and for the Pacific Legal Foundation by John H. Findley and Steven Geof
frey Gieseler.
Lisa A. Brown, Ada Meloy, Francisco M. Negro´ n, Jr., Naomi Gittins,
Thomas Hutton, and Lisa Soronen filed a brief for the National School
Boards Association et al. as amici curiae urging affirmance.

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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. Dur
ing the 2000–2001 school year, the daughter of petitioners
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 Fitz
gerald immediately called the school principal, Frederick
Scully, who arranged a meeting later that day with the Fitz
geralds, their daughter, and another school official, Lynda
Day. Scully and Day then questioned the alleged bully, who
denied the allegations. Day also interviewed 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 sched
uled 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 inde
pendent investigation and concluded there was insufficient
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 in
sufficient evidence to warrant discipline. Scully did propose
remedial measures to the Fitzgeralds. He suggested trans
ferring their daughter to a different bus or leaving rows of
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on the original bus. The Fitzgeralds felt that these propos
als punished their daughter instead of the boy and countered
with alternative proposals. They suggested transferring
the boy to a different bus or placing a monitor on the original
bus. The Barnstable school system’s superintendent, Rus
sell 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 re
port unsettling incidents at school. The Fitzgeralds re
ported each incident to Scully. The Fitzgeralds’ daughter
had an unusual number of absences during the remainder of
the school year.
In April 2002, the Fitzgeralds filed suit in District Court,
alleging that the school system’s response to their allegations
of sexual harassment had been inadequate, resulting in fur
ther harassment to their daughter. Their complaint in
cluded: (1) a claim for violation of Title IX against the Barn
stable 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 com
mittee and Dever. The school committee and Dever (re
spondents 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 Comm., 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 fed
eral funds and was therefore subject to Title IX, (2) the

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school committee had actual knowledge of the harassment
the Fitzgeralds’ daughter suffered, and (3) if the allegations
of the complaint were true, the harassment was “severe, per
vasive, 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 rea
sonable. Id., at 175.
The Court of Appeals turned next to the Fitzgeralds’
§ 1983 claims. Relying on this Court’s precedents in
Middlesex County Sewerage Authority v. National Sea
Clammers 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
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 educational
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 discrimination 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. 1093 (2008), and we now reverse.

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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 Ter
ritory 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 immunities secured by the
Constitution and laws, shall be liable to the party in
jured in an action at law, suit in equity, or other proper
proceeding for redress.”
In three cases, this Court has found that statutory enact
ments precluded claims under this statute. Sea Clammers,
supra; Smith, supra; Rancho Palos Verdes, supra. These
cases establish that “[t]he crucial consideration is what Con
gress intended.” Smith, 468 U. S., at 1012. If Congress in
tended a statute’s remedial scheme to “be the exclusive ave
nue through which a plaintiff may assert [the] claims,” 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 expressly
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 statu
tory 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 omit
ted). In cases in which the § 1983 claim alleges a constitu
tional violation, lack of congressional intent may be inferred
from a comparison of the rights and protections of the stat
ute and those existing under the Constitution. Where the
contours of such rights and protections diverge in significant

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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 stat
ute’s context. Id., at 127 (Breyer, J., concurring) (“[C]on
text, 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 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 elaborate enforcement pro
visions,” which authorized the Environmental Protection
Agency to seek civil and criminal penalties for viola
tions, permitted “ ‘any interested person’ ” to seek judicial
review, and contained detailed citizen suit provisions allow
ing 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, ap
propriate public education for their handicapped child, in vio
lation of the Education of the Handicapped Act (EHA) and
the Due Process and Equal Protection Clauses of the Four
teenth Amendment. Departing from the pattern of the
plaintiffs in Sea Clammers, the Smith plaintiffs relied on
§ 1983 to assert independent constitutional rights, not to as
sert the statutory rights guaranteed by the EHA. As in
Sea Clammers, however, this Court focused on the statute’s

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detailed remedial scheme in concluding that Congress in
tended the statute to provide the sole avenue for relief.
Smith, supra, at 1011 (noting “the comprehensive nature of
the procedures and guarantees set out in the [statute] and
Congress’ express efforts to place on local and state educa
tional agencies the primary responsibility for developing a
plan to accommodate the needs of each individual handi
capped child”).
In Rancho Palos Verdes, we again focused on a statute’s
remedial scheme in inferring congressional intent for exclu
sivity. After being denied a permit to build a radio tower
on his property, the plaintiff brought claims for 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 administra
tive 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 plaintiffs
to comply with particular procedures and/or to exhaust par
ticular administrative remedies prior to filing suit. Sea
Clammers, supra, at 6; Smith, supra, at 1011–1012; Rancho
Palos Verdes, supra, at 122. Offering plaintiffs a direct
route to court via § 1983 would have circumvented these pro
cedures and given plaintiffs access to tangible benefits—such
as damages, attorney’s fees, and costs—that were unavail
able under the statutes.1 “Allowing a plaintiff to circum
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 expressly
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. (2000 ed. and Supp. V), and the Marine
Protection, Research, and Sanctuaries Act of 1972, 86 Stat. 1052, as
amended, 33 U. S. C. § 1401 et seq. (2000 ed. and Supp. V)); Smith, 468

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vent” the statutes’ provisions in this way would have been
“inconsistent with Congress’ carefully tailored scheme.”
Smith, 468 U. S., at 1012.
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 finan
cial assistance.” 20 U. S. C. § 1681(a).
The statute’s only express enforcement mechanism, § 1682, is
an administrative procedure resulting in the withdrawal 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 im
plied cause of action—stand in stark contrast to the “unusu
ally elaborate,” “carefully tailored,” and “restrictive” en
forcement schemes of the statutes at issue in Sea Clammers,
Smith, and Rancho Palos Verdes. Unlike those statutes,
Title IX has no administrative exhaustion requirement and
no notice provisions. Under its implied private right of ac
tion, 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
U. S., at 1010–1011 (addressing the EHA, 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 TCA, 110 Stat. 56, 47 U. S. C. § 332(c)(7)).

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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 redress
in the statute itself ” is a key consideration in determining
congressional intent, and that “the existence of a more re
strictive 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 rem
edy, much less a more restrictive one. This Court has never
held that an implied right of action had the effect of preclud
ing suit under § 1983, likely because of the difficulty of dis
cerning congressional intent in such a situation. See Frank
lin, 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 ex
pressly 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 Congress
did not intend Title IX to preclude § 1983 constitutional 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 constitutional right to be
free from gender discrimination perpetrated by educational
institutions.” 504 F. 3d, at 179.

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Title IX reaches institutions and programs that receive
federal funds, 20 U. S. C. § 1681(a), which may include non
public institutions, § 1681(c), but it has consistently been in
terpreted as not authorizing suit against school officials,
teachers, and other individuals, see, e. g., Hartley 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 individuals as well as munici
palities and certain other state entities. 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 ex
ample, Title IX exempts elementary and secondary schools
from its prohibition against discrimination in admissions,
§ 1681(a)(1); it exempts military service schools and tradition
ally single-sex public colleges from all of its provisions,
§§ 1681(a)(4)–(5). Some exempted activities may form the
basis of equal protection claims. See United States v. Vir
ginia, 518 U. S. 515, 534 (1996) (men-only admissions policy
at Virginia Military Institute violated the Equal Protection
Clause); Mississippi Univ. for Women v. Hogan, 458 U. S.
718, 731 (1982) (women-only admission policy at a tradition
ally single-sex public college violated the Equal Protection
Clause).
Even where particular activities and particular defendants
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 ad
ministrator with authority to take corrective action re
sponded to harassment with deliberate indifference. Gebser
v. Lago Vista Independent School Dist., 524 U. S. 274, 290
(1998). A plaintiff stating a similar claim via § 1983 for vio
lation of the Equal Protection Clause by a school district or
other municipal entity must show that the harassment was

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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 compre
hensive remedial scheme comparable to those at issue 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 substi
tute for § 1983 suits as a means of enforcing constitutional
rights. Accordingly, we hold that § 1983 suits based on the
Equal Protection Clause remain available to plaintiffs alleg
ing 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. 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, reli
gion, or national origin). Accordingly, it appears that the
Congress that enacted Title IX explicitly envisioned that pri
vate plaintiffs would bring constitutional 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 inter
preted 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. Elling
ton, 387 F. 2d 179 (CA6 1967); Bossier Parish School Bd. v.

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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 assessing Congress’ intent, “we evaluate the
state of the law when the Legislature passed Title IX”). In
the absence of any contrary evidence, it follows that Con
gress 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 judg
ment of the Court of Appeals should be affirmed on inde
pendent grounds—namely, that the Fitzgeralds have no ac
tionable § 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 constitutional 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.
2 Respondents argue that constitutional protections against gender dis
crimination were minimal in 1972, as the only gender-based equal protec
tion 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 Evol
ving Doctrine on a Changing Court: A Model for a Newer Equal Protec
tion, 86 Harv. L. Rev. 1, 34 (1972) (Reed exemplified the application of
rationality review “with bite”). They further argue that because Con
gress 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 together in address
ing gender discrimination in schools; it is whether Congress affirmatively
intended to preclude this result. The limited nature of constitutional pro
tections against gender discrimination in 1972 offers no evidence that
Congress did.

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260 FITZGERALD v. BARNSTABLE SCHOOL COMM.
Opinion of the Court
The Fitzgeralds respond that they have no intention of
relitigating the issue of deliberate indifference. They in
tend, they say, to advance claims of discriminatory treatment
in the investigation of student behavior and in the treatment
of student complaints, which they were foreclosed from de
veloping at the earliest stages of litigation 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 Collegiate Athletic
Assn. v. Smith, 525 U. S. 459, 470 (1999), and we see no rea
son 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 consist
ent with this opinion.
It is so ordered.