Why Title IX Does Not Preclude Section 1983 Claims

Abstract

A victim of sexual harassment by a teacher may wish to sue the teacher, the principal, the members of the school board, the superintendent, the school district itself, and the municipality in which the school district operates. Typically, the plaintiff will want to bring two types of claims: (1) constitutional claims under 42 USC ? 1983,1 which provides a cause of action against state actors for violations of the Constitution and federal laws; and (2) a claim under Title IX of the Higher Education Amendments of 1972,2 either as an implied right of action under Title IX itself3 or as a Section 1983 claim predicated on Title IX.4 Lower courts disagree as to whether Title IX precludes a plaintiff from bringing Constitution-based Section 1983 claims as well as Section 1983 claims predicated on Title IX itself. Because the distinction between Constitution-based and statute-based Section 1983 claims is critical, it is important to understand how a statute like Title IX can preclude both a Section 1983 claim predicated on Title IX itself as well as a Section 1983 claim predicated on a constitutional right. The Supreme Court set out the important test in Middlesex County Sewerage Authority v Na-