What Good is the Constitution if You Can't Enforce it in Court?

There is a case currently before the Supreme Court, Fitzgerald v. Barnstable School Committee, that raises a fundamental question of individual constitutional rights: can a student who was sexually harassed in school raise sex discrimination claims under both Title IX (the federal law prohibiting sex discrimination in public schools) and the Constitution?

To understand the question more fully, let's take a quick look at the relevant legal history:

In the years following the Civil War, there was a wave of action to try to create racial equality in the United States and dismantle the legacy of slavery. The States ratified the 13th, 14th, and 15th Amendments to the Constitution, and Congress passed a series of civil rights laws, including 42 United States Code Section 1983, which allowed people to go to court to enforce the rights set forth in those amendments. Section 1983 has become a critical tool for enforcing our constitutional rights, and has played a key role in some of the most important civil rights and civil liberties battles of the last century, including Brown v. Board of Education, Tinker v. Des Moines, and Faulkner v. Jones.

In the 1960s and 1970s, Congress passed Title IX and other civil rights laws prohibiting discrimination in education, employment, housing, and voting. These statutory laws supplement and reinforce the protections established in the Civil War Amendments, but have neither the breadth nor the sanctity of constitutional protections.

So the question is, when Congress passed Title IX, did it intend for that law to override people's ability to enforce constitutional protections, particularly the Fourteenth Amendment's guarantee of Equal Protection under law, by bringing cases under Section 1983?

The answer is, no. Congress's intent in passing Title IX was to provide additional protections for those most vulnerable to discrimination, not to take away already-existing ones. To say that Title IX replaces the right to enforce Equal Protection under the Constitution through Section 1983 is like telling a tightrope walker that you've replaced the big, sturdy net that has always been there to catch her with a much smaller net that will be placed right under the rope but will only catch her at certain points along her walk. While the new net may be a welcome additional protection, it is no substitute for the big, reliable net down below.

The court's decision in Fitzgerald could have an effect well beyond sex discrimination in education; Section 1983 is a vehicle for access to many constitutional rights, including freedom of expression, due process rights, freedom from unreasonable search and seizure, and the freedom from discrimination based on race, ethnicity, and national origin. If the Supreme Court decides that Jacqueline Fitzgerald does not have the right to bring an Equal Protection claim, it could mean that all Americans will have tangibly fewer enforceable rights than they do now.

Unfortunately, many courts have been issuing restrictive interpretations of people's ability to enforce constitutional rights in court. It is critical that our next administration take a strong and affirmative stand to uphold the Constitution and ensure that the courts will do the same.

Sign the Constitution Voter pledge to make sure that the next president will be committed to restoring the Constitution and the fundamental freedoms it protects and to safeguarding access to the courts to enforce those freedoms. And visit www.aclu.org/titleix to learn more about the Title IX work of the ACLU Women's Rights Project.