Power v. Gilbert Public Schools

Filing 75

ORDER - IT IS ORDERED GRANTING Pla's 68 Motion for Reconsideration to the limited extent that the Court reverses its earlier holding regarding her §1983 Equal Protection claims. Pla's §1983 Equal Protection claims are not preempted by Title IX and therefore should not be dismissed. Signed by Judge James A Teilborg on 3/30/09. (SAT)

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IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF ARIZONA

Madison Power, a minor, by and through) Kelly and Lisa Power, her parents and) ) guardians, ) ) Plaintiff, ) ) vs. ) ) ) Gilbert Public Schools, et al., ) ) Defendants. ) ) ) ) )

No. CV 07-2584-PHX-JAT ORDER

The Court's Order of May 16, 2008, among other things, dismissed Plaintiff's §1983 claims for violation of her equal protection rights. (Doc. #34, p. 6). The Court held that Title IX preempted Plaintiff's equal protection claims against the school officials and the school district for gender discrimination. The United States Supreme Court has since held that Title IX does not preempt §1983 claims for Equal Protection Clause violations. Fitzgerald v. Barnstable School Comm., ___ U.S. ____, 129 S.Ct. 788, 797 (2009)("Accordingly, we hold that §1983 suits based on the Equal Protection Clause remain available to plaintiffs alleging unconstitutional gender discrimination in schools."). In light of the Supreme Court's opinion in Fitzgerald, on January 27, 2009, the Court

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invited Plaintiff to file a motion to reconsider the Court's earlier Order. (Doc. #65). Plaintiff filed her Motion for Reconsideration (Doc. #68) on February 27, 2009. Plaintiff asks that the Court reconsider its ruling that Title IX preempts Equal Protection claims under §1983. Defendants filed a response, but do not disagree with Plaintiff that that portion of the Court's earlier Order is incorrect. Because of the Supreme Court's intervening holding in Fitzgerald, the Court will grant the motion to reconsider to the extent requested. Accordingly, IT IS ORDERED GRANTING Plaintiff's Motion for Reconsideration (Doc. #68) to the limited extent that the Court reverses its earlier holding regarding her §1983 Equal Protection claims. Plaintiff's §1983 Equal Protection claims are not preempted by Title IX and therefore should not be dismissed. DATED this 30th day of March, 2009.

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