Fitzgerald v. Barnstable School Committee - Oral Argument - December 02, 2008

Fitzgerald v. Barnstable School Committee

Media for Fitzgerald v. Barnstable School Committee

Audio Transcription for Opinion Announcement - January 21, 2009 in Fitzgerald v. Barnstable School Committee

Audio Transcription for Oral Argument - December 02, 2008 in Fitzgerald v. Barnstable School Committee

John G. Roberts, Jr.:

We will hear argument next in Case 07-1125, Fitzgerald v. Barnstable School Committee.

Mr. Rothfeld.

Charles A. Rothfeld:

Thank you.

If it please the Court: The court of appeals in this case -- excuse me, Your Honor.

Ruth Bader Ginsburg:

Maybe you could lift the podium?

Charles A. Rothfeld:

Actually, I have never used this before, so it's a learning experience for me, Your Honor.

Antonin Scalia:

That's enough.

Charles A. Rothfeld:

Okay?

Antonin Scalia:

We can't see you.

[Laughter]

Charles A. Rothfeld:

That -- that may be an advantage, Your Honor.

Ruth Bader Ginsburg:

But we can hear you.

Charles A. Rothfeld:

If -- if I should modify it, please -- please let me know.

The court of appeals in this case made two fundamental and separate errors, each of which should require reversal of its decision.

First, all agree that the question whether title IX precludes the use of section 1983 to enforce the Constitution is a matter of congressional intent.

Yet, the court of appeals entirely disregarded all of the ordinary indicia of congressional intent: the statutory text; the statutory background, structure, and evolution; the unquestioned legislative purpose.

Each of these considerations points conclusively towards a single outcome: Congress did not mean title IX to preclude the use of section 1983 to enforce the Constitution.

Second, rather than consider any of this direct and compelling evidence of what Congress actually had in mind in title IX, the court of appeals applied what it thought to be a presumption that the availability of title IX's implied right of action to enforce title IX's own statutory prohibition of gender discrimination somehow should be taken to mean that Congress meant to preclude the use of section 1983 to enforce constitutional rules against discrimination.

John G. Roberts, Jr.:

Counsel, there's -- there's a little bit of an air of unreality about all this, because, of course, Congress didn't provide a cause of action in title IX to start with.

And the reason they don't have all these limitations and restrictions is because they didn't put in the cause of action.

We implied it from the statute, and so it seems kind of awkward to say, well, there are no limitations, as I said, when there was no cause of action.

Charles A. Rothfeld:

Well, I -- I guess there -- there are a number of points that I -- I can make in response to that, Your Honor.

First of all, I think what -- what you say is absolutely right.

Congress did not expressly provide a cause of action in title IX.

And so since -- since the question in a preclusion case, the question of whether or not Congress meant to preclude the use of section 1983, is whether there is a clear indication of congressional intent to do so, that there -- as a matter of definition, that can't be present here.

But -- but before--

Antonin Scalia:

Maybe the question ought to be whether this Court intended to have the title IX action, which it invented, preclude 1983.

Why don't we look to the intent of this Court?

Charles A. Rothfeld:

--Well, I -- I think not, Your Honor.

I think that--