Skip to main content


  • AddRemove
  • Build a Report 
Media Coverage

Victory in Pro Bono Harassment Case Resolves Jurisdictional Split

9 February 2009

Charles Rothfeld successfully argued before the US Supreme Court on behalf of the parents of a girl who claims to have suffered peer-on-peer sexual harassment while in kindergarten.  In Fitzgerald v. Barnstable School Committee, Charles represented the parents pro bono, in conjunction with the Yale Law School Supreme Court Advocacy Clinic. 

The case stemmed from a suit filed in Massachusetts alleging that a kindergarten girl was the victim of repeated, vicious sexual harassment on a public school bus, and that school administrators did not take adequate steps in response to the harassment. The parents brought suit under both Title IX and 42 U.S.C. § 1983 against their local school board and the school superintendent alleging statutory and constitutional equal protection violations. 

The First Circuit had rejected the Title IX claim on the merits because it believed that the school's response to the abuse was not manifestly unreasonable.  The First Circuit then went on to hold that Title IX occupied the field and precluded use of § 1983 to assert a constitutional equal protection claim growing out of the same facts. 

In a unanimous decision, the Supreme Court ruled that victims of gender discrimination in schools that receive federal funds may bring suit both under federal statutory anti-discrimination law and to enforce their constitutional rights. Until the Fitzgerald decision, there had been a split in the circuits on the question whether Title IX preempts use of § 1983 to assert constitutional claims in these circumstances. The Supreme Court concluded that Title IX was not meant to be an exclusive mechanism for addressing gender discrimination in schools, or a substitute for § 1983 suits as a means of enforcing constitutional rights.

Related Information

  • Related People
    Charles A. Rothfeld
    Special Counsel
    T +1 202 263 3233

The Build a Report feature requires the use of cookies to function properly.  Cookies are small text files that are placed on your computer by websites that you visit. They are widely used in order to make websites work, or work more efficiently.  If you do not accept cookies, this function will not work.  For more information please see our Privacy Policy

You have no pages selected. Please select pages to email then resubmit.