Fitzgerald v. Barnstable School Comm., 555 U. S.

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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 Congress did not intend Title IX to preclude §1983 constitutional 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 constitutional right to be free from gender discrimination perpetrated by educational institutions.” 504 F. 3d, at 179.
Title IX reaches institutions and programs that receive federal funds, 20 U. S. C. §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 v. Parnell, 193 F. 3d 1263, 1270 (CA11 1999). The Equal Protection Clause reaches only state actors, but §1983 equal protection claims may be brought against individuals as well as municipalities and certain other state entities. West v. Atkins, 487 U. S. 42, 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-*** public colleges from all of its provisions, §§1681(a)(4)–(5). Some exempted activities may form the basis of equal protection claims. See United States v. Virginia, 518 U. S. 515, 534 (1996) (men-only admissions policy at Virginia Military Institute violated the Equal Protection Clause); Mississippi Univ. for Women v. Hogan, 458 U. S. 718, 731 (1982) (women-only admission policy at a traditionally single-*** public college violated the Equal Protection Clause).
Even where particular activities and particular defendants 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 indifference. Gebser v. Lago Vista Independent School Dist., 524 U. S. 274, 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., 436 U. S. 658, 694 (1978) .
In light of the divergent coverage of Title IX and the Equal Protection Clause, as well as the absence of a comprehensive remedial scheme comparable to those at issue 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 enforcing 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, 42 U. S. C. §2000h–2 to authorize the Attorney General to intervene in private suits alleging discrimination on the basis of *** in violation of the Equal Protection Clause. See §906, 86 Stat. 375 (adding the term “***” 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 constitutional claims to challenge gender discrimination; it must have recognized that plaintiffs would do so via 42 U. S. C. §1983.
Moreover, Congress modeled Title IX after Title VI of the Civil Rights Act of 1964, Cannon, 441 U. S., at 694–695, and passed Title IX with the explicit understanding that it would be interpreted as Title VI was, id.,at 696. 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., 445 F. 2d 1011 (CA5 1971); Nashville I–40 Steering Comm. v. Ellington, 387 F. 2d 179 (CA6 1967); Bossier Parish School Bd. v. Lemon, 370 F. 2d 847 (CA5 1967), and we presume Congress was aware of this when it passed Title IX, see Franklin, 503 U. S., at 71 (in assessing Congress’ intent, “we evaluate the state of the law 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 constitutional 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 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 litigation 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 Collegiate Athletic Assn. v. Smith, 525 U. S. 459, 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 consistent with this opinion.
It is so ordered.

The statutes at issue in Sea Clammers and Smith did not allow for damages. The statute at issue in Rancho Palos Verdes did not expressly 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 Clammers, 453 U. S., at 6–7, 13–14 (addressing the Federal Water Pollution Control Act, 86 Stat. 816, as amended, 33 U. S. C. §1251 et seq., and the Marine Protection, Research, and Sanctuaries Act of 1972, 86 Stat. 1052, as amended, 33 U. S. C. §1401 et seq.); Smith, 468 U. S., at 1010–1011 (addressing the Education of the Handicapped Act, 84 Stat. 175, as amended, 20 U. S. C. §1400 et seq.); Rancho Palos Verdes, 544 U. S., at 122–123, and nn. 3, 4 (addressing the Telecommunications Act of 1996, 110 Stat. 56, 47 U. S. C. §332(c)(7)). 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, 404 U. S. 71, 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 *** 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 together 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
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