(Slip Opinion)              OCTOBER TERM, 2008                                       1

                                       Syllabus

         NOTE: Where it is feasible, a syllabus (headnote) will be released, as is
       being done in connection with this case, at the time the opinion is issued.
       The syllabus constitutes no part of the opinion of the Court but has been
       prepared by the Reporter of Decisions for the convenience of the reader.
       See United States v. Detroit Timber & Lumber Co., 

, 337.


SUPREME COURT OF THE UNITED STATES

                                       Syllabus

       FITZGERALD ET VIR v. BARNSTABLE SCHOOL 

                 COMMITTEE ET AL. 


CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR
                  THE FIRST CIRCUIT

 No. 07–1125. Argued December 2, 2008—Decided January 21, 2009
Petitioners filed suit against respondents, the local school district’s
  governing board and superintendent, alleging that their response to
  allegations of sexual harassment of petitioners’ daughter by an older
  student was inadequate, raising claims under, inter alia, Title IX of
  the Education Amendments of 1972, 

. §1681(a), and 

. §1983 for violation of the Equal Protection Clause of the
  Fourteenth Amendment. Among its rulings, the District Court dis
  missed the §1983 claim. The First Circuit affirmed, holding that,
  under this Court’s precedents, Title IX’s implied private remedy was
  sufficiently comprehensive to preclude the use of §1983 to advance
  constitutional claims.
Held:
    1. Title IX does not preclude a §1983 action alleging unconstitu
 tional gender discrimination in schools. Pp. 4–12.
       (a) In Middlesex County Sewerage Authority v. National Sea
 Clammers Assn., 

; Smith v. Robinson, 

; and
 Rancho Palos Verdes v. Abrams, 

, this Court found that
 particular statutory enactments precluded §1983 claims where it was
 established that Congress intended the statute’s remedial scheme to
 “be the exclusive avenue through which a plaintiff may assert [such]
 claims,” 

. In determining whether Congress in
 tended for a subsequent statute to preclude the enforcement of a fed
 eral right under §1983, the Court has placed primary emphasis on
 the nature and extent of that statute’s remedial scheme. See Sea
 

. Where the §1983 claim alleges a consti
 tutional violation, a lack of congressional intent to preclude may also
 be inferred from a comparison of the rights and protections of the
2           FITZGERALD v. BARNSTABLE SCHOOL COMM.

                                  Syllabus

    other statute and those existing under the Constitution. Pp. 4–7.
         (b) In the absence of a comprehensive remedial scheme compara
    ble to those at issue in Sea Clammers, Smith, and Rancho Palos
    Verdes, and in light of the divergent coverage of Title IX and the
    Equal Protection Clause, it must be concluded that Title IX was not
    meant to be an exclusive mechanism for addressing gender discrimi
    nation in schools, or a substitute for §1983 suits as a means of enforc
    ing constitutional rights. Pp. 7–12.
           (i) Title IX’s only express enforcement mechanism, 

.
    §1682, is an administrative procedure resulting in the withdrawal of
    federal funding from noncompliant institutions. This Court has also
    recognized an implied private right of action, Cannon v. University of
    Chicago, 

, 717, for which both injunctive relief and
    damages are available, Franklin v. Gwinnett County Public Schools,
    

, 76. These remedies stand in stark contrast to the “un
    usually elaborate,” “carefully tailored,” and “restrictive” enforcement
    schemes of the statutes in Sea Clammers, Smith, and Rancho Palos
    Verdes. Unlike those statutes, Title IX has no administrative ex
    haustion requirement and no notice provisions. Plaintiffs can file di
    rectly in court under its implied private right of action and can obtain
    the full range of remedies. Accordingly, parallel and concurrent
    §1983 claims will neither circumvent required procedures nor allow
    access to new remedies. Moreover, under Rancho Palos Verdes, “[t]he
    provision of an express, private means of redress in the statute itself”
    is a key consideration in determining congressional intent, and “the
    existence of a more restrictive private remedy for statutory violations
    has been the dividing line between those cases in which . . . an action
    would lie under §1983 and those in which we have held that it would
    

. Title IX contains no express private remedy,
    much less a more restrictive one. Pp. 7–9.
           (ii) Because Title IX’s protections are narrower in some re
    spects and broader in others than those guaranteed under the Equal
    Protection Clause, the Court cannot agree with the First Circuit that
    Congress saw Title IX as the sole means of correcting unconstitu
    tional gender discrimination in schools. Title IX reaches institutions
    and programs that receive federal funds, 

. §1681(a), which
    may include nonpublic institutions, §1681(c), but it has consistently
    been interpreted as not authorizing suit against school officials,
    teachers, and other individuals. Moreover, while the constitutional
    provision reaches only state actors, §1983 equal protection claims
    may be brought against individuals as well as state entities. West v.
    Atkins, 

, 48–51. And Title IX exempts from its restric
    tions several activities that may be challenged on constitutional
    grounds. See, e.g., §1681(a)(5). Even where particular activities and
                     Cite as: 555 U. S. ____ (2009)                      3

                                Syllabus

  particular defendants are subject to both Title IX and the Equal Pro
  tection Clause, the standards for establishing liability may not be
  wholly congruent. Compare Gebser v. Lago Vista Independent School
  Dist., 

, 290, with Monell v. New York City Dept. of Social
  Servs., 

, 694. Pp. 9–11.
         (iii) The Court’s conclusion is consistent with Title IX’s context
  and history. Because the Congress that enacted Title IX authorized
  the Attorney General to intervene in private suits alleging sex dis
  crimination violative of the Equal Protection Clause, 

.
  §2000h–2, Congress must have explicitly envisioned that private
  plaintiffs would bring constitutional claims to challenge gender dis
  crimination via §1983. Moreover, Title IX was modeled after Title VI
  of the Civil Rights Act of 1964, 

–695, and, at
  the time of Title IX’s 1972 enactment, the lower courts routinely in
  terpreted Title VI to allow for parallel and concurrent §1983 claims.
  Absent contrary evidence, it follows that Congress intended Title IX
  to be interpreted similarly to allow for parallel and concurrent §1983
  claims. Pp. 11–12.
    2. As neither of the courts below addressed the merits of petition
  ers’ constitutional claims or even the sufficiency of their pleadings,
  this Court will not do so in the first instance here. Pp. 12–13.

, reversed and remanded.

  ALITO, J., delivered the opinion for a unanimous Court.
                        Cite as: 555 U. S. ____ (2009)                              1

                             Opinion of the Court

     NOTICE: This opinion is subject to formal revision before publication in the
     preliminary print of the United States Reports. Readers are requested to
     notify the Reporter of Decisions, Supreme Court of the United States, Wash
     ington, D. C. 20543, of any typographical or other formal errors, in order
     that corrections may be made before the preliminary print goes to press.


SUPREME COURT OF THE UNITED STATES
                                   _________________

                                   No. 07–1125
                                   _________________


  LISA FITZGERALD, ET VIR, PETITIONERS v. BARN-

        STABLE SCHOOL COMMITTEE ET AL. 

 ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF 

             APPEALS FOR THE FIRST CIRCUIT

                               [January 21, 2009] 


   JUSTICE ALITO delivered the opinion of the Court.
   The issue in this case of peer-on-peer sexual harassment
is whether Title IX of the Education Amendments of 1972,
86 Stat. 373, 

. §1681(a), precludes an action
under Rev. Stat. §1979, 

. §1983, alleging uncon
stitutional gender discrimination in schools. The Court of
Appeals for the First Circuit held that it does. 

(2007). We reverse.
                              I
   Because this case comes to us on a motion to dismiss
under Federal Rule of Civil Procedure 12(b)(6), we assume
the truth of the facts as alleged in petitioners’ complaint.
During the 2000–2001 school year, the daughter of peti
tioners Lisa and Robert Fitzgerald was a kindergarten
student in the Barnstable, Massachusetts, school system,
and rode the bus to school each morning. One day she told
her parents that, whenever she wore a dress, a third-grade
boy on the school bus would bully her into lifting her skirt.
Lisa Fitzgerald immediately called the school principal,
Frederick Scully, who arranged a meeting later that day
with the Fitzgeralds, their daughter, and another school
2       FITZGERALD v. BARNSTABLE SCHOOL COMM.

                     Opinion of the Court

official, Lynda Day. Scully and Day then questioned the
alleged bully, who denied the allegations. Day also inter
viewed the bus driver and several students who rode the
bus. She concluded that she could not corroborate the
girl’s version of the events.
   The Fitzgeralds’ daughter then provided new details of
the alleged abuse to her parents, who relayed them to
Scully. Specifically, she told her parents that in addition
to bullying her into raising her skirt, the boy coerced her
into pulling down her underpants and spreading her legs.
Scully scheduled a second meeting with the Fitzgeralds to
discuss the additional details and again questioned the
boy and other students.
   Meanwhile, the local police department conducted an
independent investigation and concluded there was insuf
ficient evidence to bring criminal charges against the boy.
Based partly on the police investigation and partly on the
school’s own investigation, Scully similarly concluded
there was insufficient evidence to warrant discipline.
Scully did propose remedial measures to the Fitzgeralds.
He suggested transferring their daughter to a different
bus or leaving rows of empty seats between the kinder
garteners and older students on the original bus. The
Fitzgeralds felt that these proposals punished their
daughter instead of the boy and countered with alterna
tive proposals. They suggested transferring the boy to a
different bus or placing a monitor on the original bus. The
Barnstable school system’s superintendent, Russell Dever,
did not act on these proposals.
   The Fitzgeralds began driving their daughter to school
to avoid further bullying on the bus, but she continued to
report unsettling incidents at school. The Fitzgeralds
reported each incident to Scully. The Fitzgeralds’ daugh
ter had an unusual number of absences during the re
mainder of the school year.
   In April 2002, the Fitzgeralds filed suit in District
                 Cite as: 555 U. S. ____ (2009)            3

                     Opinion of the Court

Court, alleging that the school system’s response to their
allegations of sexual harassment had been inadequate,
resulting in further harassment to their daughter. Their
complaint included: (1) a claim for violation of Title IX
against the Barnstable School Committee (the school
system’s governing body), (2) claims under 

.
§1983 for violations of Title IX and the Equal Protection
Clause of the Fourteenth Amendment against the school
committee and Dever, and (3) Massachusetts state-law
claims against the school committee and Dever. The
school committee and Dever (respondents here), filed a
motion to dismiss, which the District Court granted as to
the §1983 claims and the state-law claims. On the Title
IX claim, the school committee filed a motion for summary
judgment, which the District Court also granted. Hunter
v. Barnstable School Committee, 

, 266
(Mass. 2006).
   The Court of Appeals for the First Circuit affirmed. 

. Turning first to the Title IX claim against the
school committee, the court noted three points that were
not in dispute: (1) the school committee was the recipient
of federal funds and was therefore subject to Title IX, (2)
the school committee had actual knowledge of the harass
ment the Fitzgeralds’ daughter suffered, and (3) if the
allegations of the complaint were true, the harassment
was “severe, pervasive and objectively offensive.” 

The court concluded that the Fitzgeralds’ Title IX
claim lacked merit, however, because the response of the
school committee and Dever to the reported harassment
had been objectively reasonable. 

   The Court of Appeals turned next to the Fitzgeralds’
§1983 claims. Relying on this Court’s precedents in Mid
dlesex County Sewerage Authority v. National Sea Clam
mers Assn., 

(1981), Smith v. Robinson, 

(1984), and Rancho Palos Verdes v. Abrams, 

(2005), the court characterized Title IX’s implied
4         FITZGERALD v. BARNSTABLE SCHOOL COMM.

                       Opinion of the Court

private remedy as “sufficiently comprehensive” to preclude
use of §1983 to advance statutory claims based on Title IX

. This reasoning, the court held,
“appl[ied] with equal force” to the constitutional claims.

that “Congress saw Title IX as
the sole means of vindicating the constitutional right to be
free from gender discrimination perpetrated by educa
tional institutions.” 

Appeals’ decision deepened a conflict
among the Circuits regarding whether Title IX precludes
use of §1983 to redress unconstitutional gender discrimi
nation in schools. Compare Bruneau ex rel. Schofield v.
South Kortright Central School Dist., 

, 758–
759 (CA2 1998); Waid v. Merrill Area Public Schools 

, 862–863 (CA7 1996); Pfeiffer v. Marion Center
Area School Dist., 

, 789 (CA3 1990), with
Communities for Equity v. Michigan High School Athletic
Assn., 

, 691 (CA6 2006); Crawford v. Davis,

, 1284 (CA8 1997); Seamons v. Snow, 

, 1234 (CA10 1996). We granted certiorari to
resolve this conflict, 553 U. S. ___ (2008), and we now
reverse.
                               II 

                               A

    In relevant part, 

. §1983, provides: 

         “Every person who, under color of any statute, ordi
      nance, regulation, custom, or usage, of any State or
      Territory or the District of Columbia, subjects, or
      causes to be subjected, any citizen of the United
      States or other person within the jurisdiction thereof
      to the deprivation of any rights, privileges, or immu
      nities secured by the Constitution and laws, shall be
      liable to the party injured in an action at law, suit in
      equity, or other proper proceeding for redress.”
                 Cite as: 555 U. S. ____ (2009)           5

                     Opinion of the Court

In three cases, this Court has found that statutory enact
ments precluded claims under this statute. Sea Clam

; 

; Rancho Palos 

.
These cases establish that “[t]he crucial consideration is
what Congress intended.” 

. If
Congress intended a statute’s remedial scheme to “be the
exclusive avenue through which a plaintiff may assert
[the] claim,” 

the §1983 claims are precluded.
See Rancho Palos 

–121 (“The
critical question, then, is whether Congress meant the
judicial remedy authorized by [the statute] to coexist with
an alternative remedy available in a §1983 action”).
   In those cases in which the §1983 claim is based on a
statutory right, “evidence of such congressional intent may
be found directly in the statute creating the right, or
inferred from the statute’s creation of a comprehensive
enforcement scheme that is incompatible with individual
enforcement under §1983.” 

(internal quotation
marks omitted). In cases in which the §1983 claim alleges
a constitutional violation, lack of congressional intent may
be inferred from a comparison of the rights and protec
tions of the statute and those existing under the Constitu
tion. Where the contours of such rights and protections
diverge in significant ways, it is not likely that Congress
intended to displace §1983 suits enforcing constitutional
rights. Our conclusions regarding congressional intent
can be confirmed by a statute’s context. 

(BREYER, J., concurring) (“[C]ontext, not just literal text,
will often lead a court to Congress’ intent in respect to a
particular statute”).
   In determining whether a subsequent statute precludes
the enforcement of a federal right under §1983, we have
placed primary emphasis on the nature and extent of that
statute’s remedial scheme. See Sea Clam

, at
20 (“When the remedial devices provided in a particular
Act are sufficiently comprehensive, they may suffice to
6       FITZGERALD v. BARNSTABLE SCHOOL COMM.

                     Opinion of the Court

demonstrate congressional intent to preclude the remedy
of suits under §1983”).
   Sea Clammers illustrates this approach. The plaintiffs
brought suit under §1983 for violations of the Federal
Water Pollution Control Act and the Marine Protection,
Research, and Sanctuaries Act of 1972. This Court’s
analysis focused on these two statutes’ “unusually elabo
rate enforcement provisions,” which authorized the Envi
ronmental Protection Agency to seek civil and criminal
penalties for violations, permitted “ ‘any interested per
son’ ” to seek judicial review, and contained detailed citi
zen suit provisions allowing for injunctive 

–14. Allowing parallel §1983 claims to proceed,
we concluded, would have thwarted Congress’ intent in
formulating and detailing these provisions.
   In Smith, the plaintiffs alleged deprivation of a free,
appropriate public education for their handicapped child,
in violation of the Education of the Handicapped Act
(EHA) and the Due Process and Equal Protection Clauses
of the Fourteenth Amendment. Departing from the pat
tern of the plaintiffs in Sea Clammers, the Smith plaintiffs
relied on §1983 to assert independent constitutional
rights, not to assert the statutory rights guaranteed by the
EHA. As in Sea Clammers, however, this Court focused
on the statute’s detailed remedial scheme in concluding
that Congress intended the statute to provide the sole
avenue for relief. 

(noting “the
comprehensive nature of the procedures and guarantees
set out in the [the statute] and Congress’ express efforts to
place on local and state educational agencies the primary
responsibility for developing a plan to accommodate the
needs of each individual handicapped child”).
   In Rancho Palos Verdes, we again focused on a statute’s
remedial scheme in inferring congressional intent for
exclusivity. After being denied a permit to build a radio
tower on his property, the plaintiff brought claims for
                     Cite as: 555 U. S. ____ (2009)                    7

                          Opinion of the Court

injunctive relief under the Telecommunications Act of
1996 (TCA) and for damages and attorney’s fees under
§1983. Noting that the TCA provides highly detailed and
restrictive administrative and judicial remedies, and
explaining that “limitations upon the remedy contained in
the statute are deliberate and are not to be evaded
through §1983,” we again concluded that Congress must
have intended the statutory remedies to be 

.
   In all three cases, the statutes at issue required plain
tiffs to comply with particular procedures and/or to ex
haust particular administrative remedies prior to filing
suit. Sea Clam

, at 6; 

, at 1011–
1012; Rancho Palos 

, at 122. Offering plain
tiffs a direct route to court via §1983 would have circum
vented these procedures and given plaintiffs access to
tangible benefits—such as damages, attorney’s fees, and
costs—that were unavailable under the statutes.1 “Allow
ing a plaintiff to circumvent” the statutes’ provisions in
this way would have been “inconsistent with Congress’
carefully tailored scheme.” 

, at 1012.




——————
  1 The statutes at issue in Sea Clammers and Smith did not allow for

damages. The statute at issue in Rancho Palos Verdes did not ex
pressly allow for damages, but some lower courts interpreted it to do so.
The statutes at issue in Smith and Rancho Palos Verdes did not allow
for attorney’s fees and costs. See Sea 

–7, 13–
14 (addressing the Federal Water Pollution Control Act, 86 Stat. 816,
as amended, 

. §1251 et seq., and the Marine Protection,
Research, and Sanctuaries Act of 1972, 86 Stat. 1052, as amended, 

. §1401 et seq.); 

–1011 (addressing the
Education of the Handicapped Act, 84 Stat. 175, as amended, 

. §1400 et seq.); Rancho Palos 

–123, and
nn. 3, 4 (addressing the Telecommunications Act of 1996, 110 Stat. 56,

. §332(c)(7)).
8         FITZGERALD v. BARNSTABLE SCHOOL COMM.

                       Opinion of the Court

                                B
                                1
    Section 901(a) of Title IX provides:
      “No person in the United States shall, on the basis of
      sex, be excluded from participation in, be denied the
      benefits of, or be subjected to discrimination under
      any education program or activity receiving Federal
      financial assistance.” 

. §1681(a).
The statute’s only express enforcement mechanism, §1682,
is an administrative procedure resulting in the with
drawal of federal funding from institutions that are not in
compliance. In addition, this Court has recognized an
implied private right of action. Cannon v. University of
Chicago, 

, 717 (1979). In a suit brought
pursuant to this private right, both injunctive relief and
damages are available. Franklin v. Gwinnett County
Public Schools, 

, 76 (1992).
   These remedies—withdrawal of federal funds and an
implied cause of action—stand in stark contrast to the
“unusually elaborate,” “carefully tailored,” and “restric
tive” enforcement schemes of the statutes at issue in Sea
Clammers, Smith, and Rancho Palos Verdes. Unlike those
statutes, Title IX has no administrative exhaustion re
quirement and no notice provisions. Under its implied
private right of action, plaintiffs can file directly in court,

, and can obtain the full range of
remedies, see 

(concluding that
“Congress did not intend to limit the remedies available in
a suit brought under Title IX”). As a result, parallel and
concurrent §1983 claims will neither circumvent required
procedures, nor allow access to new remedies.
   Moreover, this Court explained in Rancho Palos Verdes
that “[t]he provision of an express, private means of re
dress in the statute itself” is a key consideration in deter
mining congressional intent, and that “the existence of a
                  Cite as: 555 U. S. ____ (2009)            9

                      Opinion of the Court

more restrictive private remedy for statutory violations
has been the dividing line between those cases in which
we have held that an action would lie under §1983 and
those in which we have held that it would 

(emphasis added). As noted, Title IX contains no
express private remedy, much less a more restrictive one.
This Court has never held that an implied right of action
had the effect of precluding suit under §1983, likely be
cause of the difficulty of discerning congressional intent in
such a situation. See 

(SCALIA, J.,
concurring in judgment) (“Quite obviously, the search for
what was Congress’ remedial intent as to a right whose
very existence Congress did not expressly acknowledge is
unlikely to succeed”). Mindful that we should “not lightly
conclude that Congress intended to preclude reliance on
§1983 as a remedy for a substantial equal protection
claim,” 

, we see no basis for doing
so here.
                              2
   A comparison of the substantive rights and protections
guaranteed under Title IX and under the Equal Protection
Clause lends further support to the conclusion that Con
gress did not intend Title IX to preclude §1983 constitu
tional suits. Title IX’s protections are narrower in some
respects and broader in others. Because the protections
guaranteed by the two sources of law diverge in this way,
we cannot agree with the Court of Appeals that “Congress
saw Title IX as the sole means of vindicating the constitu
tional right to be free from gender discrimination perpe
trated by educational 

.
   Title IX reaches institutions and programs that receive
federal funds, 

. §1681(a), which may include
nonpublic institutions, §1681(c), but it has consistently
been interpreted as not authorizing suit against school
officials, teachers, and other individuals, see, e.g., Hartley
10      FITZGERALD v. BARNSTABLE SCHOOL COMM.

                     Opinion of the Court

v. Parnell, 

, 1270 (CA11 1999). The Equal
Protection Clause reaches only state actors, but §1983
equal protection claims may be brought against individu
als as well as municipalities and certain other state enti
ties. West v. Atkins, 

, 48–51 (1988).
   Title IX exempts from its restrictions several activities
that may be challenged on constitutional grounds. For
example, Title IX exempts elementary and secondary
schools from its prohibition against discrimination in
admissions, §1681(a)(1); it exempts military service
schools and traditionally single-sex public colleges from all
of its provisions, §§1681(a)(4)–(5). Some exempted activi
ties may form the basis of equal protection claims. See
United States v. Virginia, 

, 534 (1996) (men
only admissions policy at Virginia Military Institute vio
lated the Equal Protection Clause); Mississippi Univ. for
Women v. Hogan, 

, 731 (1982) (women-only
admission policy at a traditionally single-sex public college
violated the Equal Protection Clause).
   Even where particular activities and particular defen
dants are subject to both Title IX and the Equal Protection
Clause, the standards for establishing liability may not be
wholly congruent. For example, a Title IX plaintiff can
establish school district liability by showing that a single
school administrator with authority to take corrective
action responded to harassment with deliberate indiffer
ence. Gebser v. Lago Vista Independent School Dist., 

, 290 (1998). A plaintiff stating a similar claim
via §1983 for violation of the Equal Protection Clause by a
school district or other municipal entity must show that
the harassment was the result of municipal custom, policy,
or practice. Monell v. New York City Dept. of Social
Servs., 

, 694 (1978).
   In light of the divergent coverage of Title IX and the
Equal Protection Clause, as well as the absence of a com
prehensive remedial scheme comparable to those at issue
                 Cite as: 555 U. S. ____ (2009)           11

                     Opinion of the Court

in Sea Clammers, Smith, and Rancho Palos Verdes, we
conclude 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 en
forcing constitutional rights. Accordingly, we hold that
§1983 suits based on the Equal Protection Clause remain
available to plaintiffs alleging unconstitutional gender
discrimination in schools.
                              3
   This conclusion is consistent with Title IX’s context and
history. In enacting Title IX, Congress amended §902, 78
Stat. 266–267, 

. §2000h–2 to authorize the
Attorney General to intervene in private suits alleging
discrimination on the basis of sex in violation of the Equal
Protection Clause. See §906, 86 Stat. 375 (adding the
term “sex” to the listed grounds, which already included
race, color, religion or national origin). Accordingly, it
appears that the Congress that enacted Title IX explicitly
envisioned that private plaintiffs would bring constitu
tional claims to challenge gender discrimination; it must
have recognized that plaintiffs would do so via 

.
§1983.
   Moreover, Congress modeled Title IX after Title VI of
the Civil Rights Act of 1964, 

–
695, and passed Title IX with the explicit understanding
that it would be interpreted as Title VI was, 

At the time of Title IX’s enactment in 1972, Title VI was
routinely interpreted to allow for parallel and concurrent
§1983 claims, see, e.g., Alvarado v. El Paso Independent
School Dist., 

(CA5 1971); Nashville I–40
Steering Comm. v. Ellington, 

(CA6 1967);
Bossier Parish School Bd. v. Lemon, 

(CA5
1967), and we presume Congress was aware of this when
it passed Title IX, see 

(in assess
ing Congress’ intent, “we evaluate the state of the law
12        FITZGERALD v. BARNSTABLE SCHOOL COMM.

                         Opinion of the Court

when the Legislature passed Title IX”). In the absence of
any contrary evidence, it follows that Congress intended
Title IX to be interpreted similarly to allow for parallel
and concurrent §1983 claims. At the least, this indicates
that Congress did not affirmatively intend Title IX to
preclude such claims.2
                            III
   One matter remains. Respondents contend that the
judgment of the Court of Appeals should be affirmed on
independent grounds—namely, that the Fitzgeralds have
no actionable §1983 claim on which to proceed. They
contend that the Court of Appeals’ holding that neither
the school committee nor Dever acted with deliberate
indifference is conclusive and forecloses a §1983 constitu
tional claim based on a similar theory of liability. They
contend that all other §1983 constitutional claims on these
facts are precluded by the Fitzgeralds’ failure to allege
such claims adequately or to preserve them on appeal.
   The Fitzgeralds respond that they have no intention of
relitigating the issue of deliberate indifference. They
intend, they say, to advance claims of discriminatory
——————
  2 Respondents argue that constitutional protections against gender

discrimination were minimal in 1972, as the only gender-based equal
protection case this Court had decided employed a rational basis
standard. Reed v. Reed, 

, 76 (1971). But see Gunther, In
Search of Evolving Doctrine on a Changing Court: A Model for Newer
Equal Protection, 86 Harv. L. Rev. 1, 34 (1972) (Reed exemplified the
application of rationality review “with bite”). They further argue that
because Congress could not have viewed the Equal Protection Clause as
offering a meaningful remedy for sex discrimination by schools, it could
not have envisioned and intended for Title IX and §1983 constitutional
claims to proceed side by side. But the relevant question is not whether
Congress envisioned that the two types of claims would proceed to
gether in addressing gender discrimination in schools; it is whether
Congress affirmatively intended to preclude this result. The limited
nature of constitutional protections against gender discrimination in
1972 offers no evidence that Congress did.
                  Cite as: 555 U. S. ____ (2009)           13

                      Opinion of the Court

treatment in the investigation of student behavior and in
the treatment of student complaints, which they were
foreclosed from developing at the earliest stages of litiga
tion by the dismissal of the §1983 claims.
   As the Fitzgeralds note, no court has addressed the
merits of their constitutional claims or even the sufficiency
of their pleadings. Ordinarily, “we do not decide in the
first instance issues not decided below,” National Colle
giate Athletic Assn. v. Smith, 

, 470 (1999),
and we see no reason for doing so here.
   Accordingly, we reverse the Court of Appeals’ judgment
that the District Court’s dismissal of the §1983 claims was
proper and remand this case for further proceedings con
sistent with this opinion.
                                             It is so ordered.