9.25.2006

Sixth Circuit Discusses Split Re Preemption of Title IX Claims Pursuant to § 1983

Per Communities for Equity v. Michigan High School Athletic Ass'n, 459 F.3d 676 (6th Cir. Aug 16, 2006):

On remand, MHSAA argues that, based on the Supreme Court's decision in Ranchos Palos Verdes, Title IX provides the exclusive remedy for the alleged violations that bars CFE from seeking additional remedies under 42 U.S.C. § 1983. CFE responds by contending that Rancho Palos Verdes does not apply to the present case and that CFE is therefore entitled to prevail under both Title IX and § 1983.

. . .

Two of our sister circuits, moreover, have relied on Lillard to hold that Title IX is not comprehensive enough to be exclusive even though the plaintiffs in those cases sought relief under § 1983 for equal protection violations rather than substantive due process violations. See Crawford v. Davis, 109 F.3d 1281, 1284 (8th Cir.1997) (distinguishing Sea Clammers and finding "unpersuasive the [ ] argument that Title IX contains a sufficiently comprehensive remedial scheme") (quotation marks omitted); Seamons v. Snow, 84 F.3d 1226, 1234 (10th Cir.1996) ("We agree with the Sixth Circuit [in Lillard ], and conclude that [the plaintiff's] § 1983 action [to enforce independent constitutional rights] is not barred by Title IX."). The analysis employed by the Eighth and Tenth Circuits in those cases did not differ from the analysis of Lillard even though those courts were, like in the present case, considering the preemption of equal protection claims pursuant to § 1983. In sum, the question of whether Title IX is comprehensive enough to be exclusive is an inquiry that does not change regardless of the constitutional claim at issue.

MHSAA's own characterization of the Sea Clammers holding--"that specific statutory remedies displace the general private right of action under 42 U.S.C. § 1983 when they are comprehensive enough to be exclusive "--demonstrates why Lillard is still good law. The Lillard court acknowledged the Sea Clammers doctrine and held that it did not apply to Title IX because Title IX was not comprehensive enough to be exclusive. In other words, the Lillard court found that the dearth of remedies authorized in Title IX, either private or public, indicated that Congress did not intend to preclude recovery under § 1983 when it enacted Title IX. See Lillard, 76 F.3d at 723.

We see nothing in Rancho Palos Verdes that requires modification of Lillard or its reasoning, even though, as MHSAA notes, three other circuits have held that Congress intended Title IX to be exclusive. See Bruneau v. South Kortright Cent. Sch. Dist., 163 F.3d 749, 756-59 (2d Cir.1998); Waid v. Merrill Area Pub. Sch., 91 F.3d 857, 862-63 (7th Cir.1996); Pfeiffer v. Marion Ctr. Area Sch. Dist., 917 F.2d 779, 789 (3d Cir.1990). Unlike this court in Lillard, the Second, Third, and Seventh Circuits declined to distinguish Sea Clammers on the basis that the Title IX cases concerned application of § 1983 to enforce independent constitutional rights rather than federal statutory law. See, e.g., Bruneau, 163 F.3d at 757 ("We see nothing in Sea Clammers that would support a constitutional rights exception."). Those circuits also held that because the Supreme Court concluded that Title IX contains an implied damages remedy, see Franklin v. Gwinnett County Public Schools, 503 U.S. 60, 76, 112 S.Ct. 1028, 117 L.Ed.2d 208 (1992), Title IX "gives plaintiffs access to the full panoply of judicial remedies." See Waid, 91 F.3d at 862-63 (holding that such access indicates Congress's intent to preclude reliance on § 1983).

In short, we cannot agree with our dissenting colleague that Title IX precludes relief under § 1983 simply because the Supreme Court has implied a private right of action. The Supreme Court has never held that an implied judicial remedy is enough to preclude relief under § 1983, and the caselaw does not support such a conclusion in the present case. The rationale on which Lillard was based, therefore, remains persuasive. Because we conclude that Lillard remains good law and is unaffected by Rancho Palos Verdes, CFE may seek remedies under § 1983 as well as under Title IX.

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