Eradicating Student-Athlete Sexual Assault of Women: Section 1983 and Personal Liability Following Fitzgerald V. Barnstable

39 Pages Posted: 16 Jan 2011

See all articles by Timothy Davis

Timothy Davis

Wake Forest University - School of Law

Keith Smith

University of Vermont

Date Written: 2009


In Fitzgerald v. Barnstable, 129 S. Ct. 788 (2009), the Supreme Court held that a Title IX litigant is not precluded from concurrently asserting a § 1983 claim for violations of constitutional rights. First, the Article discusses the evolution of Supreme Court precedent that culminated in Fitzgerald. It then examines whether, in light of Fitzgerald, § 1983 individual-capacity actions premised on violations of equal protection and due process rights constitute viable external means of holding coaches and university administrators accountable for student-athlete sexual assault of women students. Acknowledging that a plaintiff's burden will be substantial, the Article concludes that the potential for personal liability is likely to provide a mechanism for holding university officials, particularly coaches, accountable for subordinating the personal integrity and safety of women to the interests of student athletes. As a predicate to its discussion of § 1983 individual-capacity based actions, the Article examines the emergence of standards for assessing Title IX liability that have expanded the circumstances under which victims of sexual harassment may prevail against institutions.

The Article also explores the variables that influence university officials, particularly college coaches, to engage in behaviors that either enhance the risk that women students will be sexually assaulted by student athletes or treat woman who have been sexually harassed with deliberate indifference. Drawing from research that examines subcultures, including the athletic and police subcultures, the Article discusses the impact of subgroup characteristics on the decisions made by college coaches and administrators in relation to male student athletes and sexual assault. The Article recognizes the importance of external controls, such as civil litigation, in helping to stymie student-athlete violence against women. It proposes, however, that internal controls — cultural and organizational changes — must be implemented if efforts to curb student-athlete sexual assaults against women are to be effective. It offers recommendations that may encourage and enable college coaches and administrators to rethink the manner in which they respond to potential and actual sexual harassment of women students by male student athletes.

Suggested Citation

Davis, Timothy and Smith, Keith, Eradicating Student-Athlete Sexual Assault of Women: Section 1983 and Personal Liability Following Fitzgerald V. Barnstable (2009). Michigan State Law Review, p. 629, 2009, Wake Forest Univ. Legal Studies Research Paper No. 1739712, Available at SSRN:

Timothy Davis (Contact Author)

Wake Forest University - School of Law ( email )

P.O. Box 7206
Winston-Salem, NC 27109
United States

Keith Smith

University of Vermont ( email )

212 Kalkin Hall
Burlington, VT 05405-0158
United States

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