Do Sexual Harassment Plaintiffs Get Two Bites of the Apple?: Sexual Harassment Litigation After Fitzgerald v. Barnstable County School Committee

Abstract

In January of 2009, the United States Supreme Court ruled in Fitzgerald v. Barnstable School Committee that students may file claims alleging sexual harassment by their teachers and/or professors under both Title IX of the Educational Amendments Act of 1972 and 42 U.S.C. § 1983. Before Fitzgerald, the Federal Circuit Courts of Appeal were split as to whether Title IX precluded simultaneous § 1983 claims against individual teachers and school officials. Since individuals are generally not recognized as appropriate defendants under Title IX, this meant that plaintiffs could only allege discrimination at the hands of a teacher or professor by making a Title IX claim against the school or institution. As a result of the Court’s decision in Fitzgerald, plaintiffs essentially now get one full bite of the proverbial apple when litigating these sexual harassment claims, as they now have a full range of claims and defendants amenable to suit.

This article addresses the course of litigation alleging sexual harassment claims by students against their teachers, the impact of the Court’s decision in Fitzgerald, and provides suggestions as to what institutions can do to limit potential damages for these types of claims. Part I of the Article outlines the history of the litigation under both Title IX and §1983, Part II examines the Court’s decision in Fitzgerald, and Part III discusses the implications for educational institutions handling concurrent and parallel Title IX and §1983 claims.