E.D. Cal. Notes Split Re Whether Title IX Subsumes a Claim under § 1983

Per Brust v. Regents of University of Cal., Slip Copy, 2007 WL 4365521 (E.D. Cal. Dec. 12, 2007):

There is presently a split in circuit authority as to whether Title IX subsumes a claim under § 1983. Compare Fitzgerald v. Barnstable Sch. Comm., 504 F.3d 165, 179-80 (1st Cir.2007) (holding that plaintiff's § 1983 claim based upon alleged Equal Protection Clause violations were precluded by Title IX's remedial scheme); Bruneau v. South Kortright Cent. Sch. Dist., 163 F.3d 749, 758 (2d Cir.1998) (”[A] § 1983 claim based on the Equal Protection Clause is subsumed by Title IX), and Waid v. Merrill Area Pub. Sch., 91 F.3d 857, 862 (7th Cir.1996) (holding that a plaintiff may not claim that a single set of facts leads to causes of action under both Title IX and section 1983), and Pfeiffer v. Marion Ctr. Area Sch. Dist., 917 F.2d 779, 789 (3d Cir.1990) (same), and Travis v. Folsom Cordova Unified Sch. Dist., 2007 U.S. Dist. LEXIS 11566 (E.D.Cal.2007) (holding that “Title VI is sufficiently comprehensive to evince congressional intent to foreclose a § 1983 remedy”), with Communities for Equity v. Mich. Hish Sch. Athletic Ass'n, 459 F.3d 676, 683-86 (6th Cir.2006); Crawford v. Davis, 109 F.3d 1281, 1284 (8th Cir.1997) (holding that Title IX has no preemptive power over section 1983 claims), and Seamons v. Snow, 84 F.3d 1226, 1233 (10th Cir.1996) (holding that plaintiff has independent rights under Title IX and under § 1983), and Lillard v. Shelby County Bd. of Educ., 76 F.3d 716, 722-23 (6th Cir.1996) (holding that a § 1983 claim seeks to enforce distinct and independent substantive due process rights).

Section 1983 does not create substantive rights, but provides the procedural framework for a plaintiff to bring suit for violations of federal rights. “Section 1983 supplies a cause of action to a plaintiff when a person acting under the color of state law deprives that plaintiff of any ‘rights, privileges, or immunities secured by the Constitution and laws of the United States.’ “ Bruneau, 163 F.3d at 756 (citing 42 U.S.C. § 1983). However, § 1983 does not provide a remedy for violations of all federal statutes. “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.” Middlesex County Sewerage Auth. v. Nat'l Sea Clammers Ass'n, 453 U.S. 1, 20 (1981). In determining if Title IX precludes resort to § 1983, courts consider (1) whether plaintiffs' Title IX claims are “virtually identical” to their constitutional claims, and (2) whether the remedies provided in Title IX indicate that Congress intended to preclude reliance on § 1983. Smith v. Robinson, 468 U.S. 992, 1009 (1984); Communities for Equity, 459 F.3d at 685. While the Ninth Circuit has not decided the specific issue of whether § 1983 claims are subsumed by Title IX, it has recognized that federal statutes may preclude a § 1983 remedy if they are sufficiently comprehensive. See, e.g., Dittman v. California, 191 F.3d 1020, 1028 (9th Cir.1999); Dep't of Educ. v. Katherine D., 727 F.2d 809, 820 (9th Cir.1983). The court agrees with the reasoning of the Second Circuit in Bruneau that, under the Sea Clammers doctrine, Title IX's enforcement scheme is sufficiently comprehensive to subsume plaintiffs' virtually identical § 1983 claims and demonstrate that Congress intended to preclude § 1983 claims when it enacted this statute. See Bruneau, 163 F.3d at 756-57. Contra Communities for Equity, 459 F.3d at 685-86.


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