Brzonkala v. Virginia Polytechnic Institute & State University , 132 F.3d 949 ( 1997 )

Rehearing en banc granted by
order filed 2/5/98
PUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
CHRISTY BRZONKALA,
Plaintiff-Appellant,
v.
VIRGINIA POLYTECHNIC INSTITUTE AND
STATE UNIVERSITY; ANTONIO J.
MORRISON; JAMES LANDALE CRAWFORD,
Defendants-Appellees,
and
CORNELL D. BROWN; WILLIAM E.
LANDSIDLE, in his capacity as
Comptroller of the Commonwealth,
Defendants.
LAW PROFESSORS; VIRGINIANS ALIGNED
AGAINST SEXUAL ASSAULT; THE
No. 96-1814
ANTI-DEFAMATION LEAGUE; CENTER FOR
WOMEN POLICY STUDIES; THE DC RAPE
CRISIS CENTER; EQUAL RIGHTS
ADVOCATES; THE GEORGETOWN
UNIVERSITY LAW CENTER SEX
DISCRIMINATION CLINIC; JEWISH WOMEN
INTERNATIONAL; THE NATIONAL
ALLIANCE OF SEXUAL ASSAULT
COALITIONS; THE NATIONAL COALITION
AGAINST DOMESTIC VIOLENCE; THE
NATIONAL COALITION AGAINST SEXUAL
ASSAULT; THE NATIONAL NETWORK TO
END DOMESTIC VIOLENCE; NATIONAL
ORGANIZATION FOR WOMEN; NORTHWEST
WOMEN'S LAW CENTER; THE
PENNSYLVANIA COALITION AGAINST
DOMESTIC VIOLENCE, INCORPORATED;
VIRGINIA NATIONAL ORGANIZATION FOR
WOMEN; VIRGINIA NOW LEGAL
DEFENSE AND EDUCATION FUND,
INCORPORATED; WOMEN EMPLOYED;
WOMEN'S LAW PROJECT; WOMEN'S
LEGAL DEFENSE FUND; INDEPENDENT
WOMEN'S FORUM; WOMEN'S FREEDOM
NETWORK,
Amici Curiae.
UNITED STATES OF AMERICA,
Intervenor-Appellant,
and
CHRISTY BRZONKALA,
Plaintiff,
v.
ANTONIO J. MORRISON; JAMES LANDALE
CRAWFORD,
Defendants-Appellees,
and
VIRGINIA POLYTECHNIC INSTITUTE AND
No. 96-2316
STATE UNIVERSITY; CORNELL D.
BROWN; WILLIAM E. LANDSIDLE, in his
capacity as Comptroller of the
Commonwealth,
Defendants.
LAW PROFESSORS; VIRGINIANS ALIGNED
AGAINST SEXUAL ASSAULT; THE
ANTI-DEFAMATION LEAGUE; CENTER FOR
WOMEN POLICY STUDIES; THE DC RAPE
CRISIS CENTER; EQUAL RIGHTS
ADVOCATES; THE GEORGETOWN
UNIVERSITY LAW CENTER SEX
2
DISCRIMINATION CLINIC; JEWISH WOMEN
INTERNATIONAL; THE NATIONAL
ALLIANCE OF SEXUAL ASSAULT
COALITIONS; THE NATIONAL COALITION
AGAINST DOMESTIC VIOLENCE; THE
NATIONAL COALITION AGAINST SEXUAL
ASSAULT; THE NATIONAL NETWORK TO
END DOMESTIC VIOLENCE; NATIONAL
ORGANIZATION FOR WOMEN; NORTHWEST
WOMEN'S LAW CENTER; THE
PENNSYLVANIA COALITION AGAINST
DOMESTIC VIOLENCE, INCORPORATED;
VIRGINIA NATIONAL ORGANIZATION FOR
WOMEN; VIRGINIA NOW LEGAL
DEFENSE AND EDUCATION FUND,
INCORPORATED; WOMEN EMPLOYED;
WOMEN'S LAW PROJECT; WOMEN'S
LEGAL DEFENSE FUND; INDEPENDENT
WOMEN'S FORUM; WOMEN'S FREEDOM
NETWORK,
Amici Curiae.
Appeals from the United States District Court
for the Western District of Virginia, at Roanoke.
Jackson L. Kiser, Senior District Judge.
(CA-95-1358-R)
Argued: June 4, 1997
Decided: December 23, 1997
Before HALL, LUTTIG, and MOTZ, Circuit Judges.
_________________________________________________________________
Reversed and remanded by published opinion. Judge Motz wrote the
majority opinion, in which Judge Hall joined. Judge Luttig wrote a
dissenting opinion.
3
COUNSEL
ARGUED: Julie Goldscheid, NOW LEGAL DEFENSE AND EDU-
CATION FUND, New York, New York; Deborah L. Brake,
NATIONAL WOMEN'S LAW CENTER, Washington, D.C.; Mark
Bernard Stern, Appellate Staff, Civil Division, UNITED STATES
DEPARTMENT OF JUSTICE, Washington, D.C., for Appellants.
Kay Heidbreder, Associate General Counsel/Special Assistant Attor-
ney General, VIRGINIA POLYTECHNIC INSTITUTE AND
STATE UNIVERSITY, Blacksburg, Virginia; Michael E. Rosman,
CENTER FOR INDIVIDUAL RIGHTS, Washington, D.C., for
Appellees. ON BRIEF: Martha F. Davis, NOW LEGAL DEFENSE
AND EDUCATION FUND, New York, New York; Eileen N. Wag-
ner, Richmond, Virginia, for Appellant Brzonkala; Frank W. Hunger,
Assistant Attorney General, Robert P. Crouch, Jr., United States
Attorney, Stephen W. Preston, Deputy Assistant Attorney General,
Alisa B. Klein, Anne M. Lobell, Appellate Staff, Civil Division,
UNITED STATES DEPARTMENT OF JUSTICE, Washington,
D.C., for Appellant United States. Jerry D. Cain, General Coun-
sel/Special Assistant Attorney General, VIRGINIA POLYTECHNIC
INSTITUTE AND STATE UNIVERSITY, Blacksburg, Virginia;
James S. Gilmore, III, Attorney General of Virginia, William H.
Hurd, Deputy Attorney General, OFFICE OF THE ATTORNEY
GENERAL, Richmond, Virginia, for Appellee VPI. Hans F. Bader,
CENTER FOR INDIVIDUAL RIGHTS, Washington, D.C.; W.
David Paxton, M. Christina Floyd, GENTRY, LOCKE, RAKES &
MOORE, Roanoke, Virginia, for Appellee Morrison; Joseph Graham
Painter, Jr., PAINTER, KRATMAN, PETHYBRIDGE, SWINDELL
& CRENSHAW, Blacksburg, Virginia, for Appellee Crawford. Sara
D. Schotland, Amy W. Schulman, CLEARY, GOTTLIEB, STEEN &
HAMILTON, Washington, D.C., for Amicus Curiae Law Professors.
Janice Redinger, VIRGINIANS ALIGNED AGAINST SEXUAL
ASSAULT, Charlottesville, Virginia; Minna J. Kotkin, Sara Kay,
Federal Litigation Program, BLS LEGAL SERVICES CORPORA-
TION, Brooklyn, New York, for Amici Curiae Virginians Aligned
Against Sexual Assault, et al. E. Duncan Getchell, Jr., J. William
Boland, Robert L. Hodges, MCGUIRE, WOODS, BATTLE &
BOOTHE, L.L.P., Richmond, Virginia, for Amicus Curiae Indepen-
dent Women's Forum. Michael D. Weiss, LAWSON, WEISS &
4
DANZIGER, Houston, Texas, for Amicus Curiae Women's Freedom
Network.
_________________________________________________________________
OPINION
DIANA GRIBBON MOTZ, Circuit Judge:
This case arises from the gang rape of a freshman at the Virginia
Polytechnic Institute by two members of the college football team,
and the school's decision to impose only a nominal punishment on the
rapists. The victim alleges that these rapes were motivated by her
assailants' discriminatory animus toward women and sues them pur-
suant to the Violence Against Women Act of 1994. She asserts that
the university knew of the brutal attacks she received and yet failed
to take any meaningful action to punish her offenders or protect her,
but instead permitted a sexually hostile environment to flourish; she
sues the university under Title IX of the Education Amendments of
1972. The district court dismissed the case in its entirety. The court
held that the complaint failed to state a claim under Title IX and that
Congress lacked constitutional authority to enact the Violence
Against Women Act. Because we believe that the complaint states a
claim under Title IX and that the Commerce Clause provides Con-
gress with authority to enact the Violence Against Women Act, we
reverse and remand for further proceedings.
I.
Christy Brzonkala entered Virginia Polytechnic Institute ("Virginia
Tech") as a freshman in the fall of 1994.1 On the evening of Septem-
ber 21, 1994, Brzonkala and another female student met two men who
Brzonkala knew only by their first names and their status as members
of the Virginia Tech football team. Within thirty minutes of first
meeting Brzonkala, these two men, later identified as Antonio Morri-
son and James Crawford, raped her.
_________________________________________________________________
1 "On appeal from an order granting a motion to dismiss under Fed. R.
Civ. P. 12(b)(6), we accept as true the facts alleged in the complaint."
McNair v. Lend Lease Trucks, Inc., 95 F.3d 325, 327 (4th Cir. 1996).
5
Brzonkala and her friend met Morrison and Crawford on the third
floor of the dormitory where Brzonkala lived. All four students talked
for approximately fifteen minutes in a student dormitory room.
Brzonkala's friend and Crawford then left the room.
Morrison immediately asked Brzonkala if she would have sexual
intercourse with him. She twice told Morrison "no," but Morrison was
not deterred. As Brzonkala got up to leave the room Morrison
grabbed her, and threw her, face-up, on a bed. He pushed her down
by the shoulders and disrobed her. Morrison turned off the lights,
used his arms to pin down her elbows and pressed his knees against
her legs. Brzonkala struggled and attempted to push Morrison off, but
to no avail. Without using a condom, Morrison forcibly raped her.
Before Brzonkala could recover, Crawford came into the room and
exchanged places with Morrison. Crawford also raped Brzonkala by
holding down her arms and using his knees to pin her legs open. He,
too, used no condom. When Crawford was finished, Morrison raped
her for a third time, again holding her down and again without a con-
dom.
When Morrison had finished with Brzonkala, he warned her "You
better not have any fucking diseases." In the months following the
rape, Morrison announced publicly in the dormitory's dining room
that he "like[d] to get girls drunk and fuck the shit out of them."
Following the assault Brzonkala's behavior changed radically. She
became depressed and avoided contact with her classmates and resi-
dents of her dormitory. She changed her appearance and cut off her
long hair. She ceased attending classes and eventually attempted sui-
cide. She sought assistance from a Virginia Tech psychiatrist, who
treated her and prescribed anti-depressant medication. Neither the
psychiatrist nor any other Virginia Tech employee or official made
more than a cursory inquiry into the cause of Brzonkala's distress.
She later sought and received a retroactive withdrawal from Virginia
Tech for the 1994-95 academic year because of the trauma.
Approximately a month after Morrison and Crawford assaulted
Brzonkala, she confided in her roommate that she had been raped, but
could not bring herself to discuss the details. It was not until February
6
1995, however, that Brzonkala was able to identify Morrison and
Crawford as the two men who had raped her. Two months later, she
filed a complaint against them under Virginia Tech's Sexual Assault
Policy, which was published in the Virginia Tech"University Policies
for Student Life 1994-1995." These policies had been formally
released for dissemination to students on July 1, 1994, but had not
been widely distributed to students. After Brzonkala filed her com-
plaint under the Sexual Assault Policy she learned that another male
student athlete was overheard advising Crawford that he should have
"killed the bitch."
Brzonkala did not pursue criminal charges against Morrison or
Crawford, believing that criminal prosecution was impossible because
she had not preserved any physical evidence of the rape. Virginia
Tech did not report the rapes to the police, and did not urge Brzonkala
to reconsider her decision not to do so. Rape of a female student by
a male student is the only violent felony that Virginia Tech authorities
do not automatically report to the university or town police.
Virginia Tech held a hearing in May 1995 on Brzonkala's com-
plaint against Morrison and Crawford. At the beginning of the hear-
ing, which was taped and lasted three hours, the presiding college
official announced that the charges were being brought under the
school's Abusive Conduct Policy, which included sexual assault. A
number of persons, including Brzonkala, Morrison, and Crawford tes-
tified. Morrison admitted that, despite the fact that Brzonkala had
twice told him "no," he had sexual intercourse with her in the dormi-
tory on September 21. Crawford, who denied that he had sexual con-
tact with Brzonkala (a denial corroborated by his suitemate, Cornell
Brown), confirmed that Morrison had engaged in sexual intercourse
with Brzonkala.
The Virginia Tech judicial committee found insufficient evidence
to take action against Crawford, but found Morrison guilty of sexual
assault. The university immediately suspended Morrison for two
semesters (one school year), and informed Brzonkala of the sanction.
Morrison appealed this sanction to Cathryn T. Goree, Virginia Tech's
Dean of Students. Morrison claimed that the college denied him his
due process rights and imposed an unduly harsh and arbitrary sanc-
tion. Dean Goree reviewed Morrison's appeal letter, the file, and
7
tapes of the three-hour hearing. She rejected Morrison's appeal and
upheld the sanction of full suspension for the Fall 1995 and Spring
1996 semesters. Dean Goree informed Brzonkala of this decision in
a letter dated May 22, 1995. According to Virginia Tech's published
rules, the decision of Dean Goree as the appeals officer on this matter
was final.
In the first week of July 1995, however, Dean Goree and another
Virginia Tech official, Donna Lisker, personally called on Brzonkala
at her home in Fairfax, Virginia, a four-hour drive from Virginia
Tech. These officials advised Brzonkala that Morrison had hired an
attorney who had threatened to sue the school on due process
grounds, and that Virginia Tech thought there might be merit to Mor-
rison's "ex post facto" challenge that he was charged under a Sexual
Assault Policy that was not yet spelled out in the Student Handbook.2
Dean Goree and Ms. Lisker told Brzonkala that Virginia Tech was
unwilling to defend the school's decision to suspend Morrison for a
year in court, and a re-hearing under the Abusive Conduct Policy that
pre-dated the Sexual Assault Policy was required. To induce Brzon-
kala to participate in a second hearing, Dean Goree and Ms. Lisker
assured her that they believed her story, and that the second hearing
was a mere technicality to cure the school's error in bringing the first
complaint under the Sexual Assault Policy.
The Virginia Tech judicial committee scheduled the second hearing
for late July. This hearing turned out to be much more than a mere
formality, however. The second hearing lasted seven hours, more than
twice as long as the first hearing. Brzonkala was required to engage
her own legal counsel at her own expense. Moreover, the university
belatedly informed her that student testimony given at the first hear-
ing would not be admissible at the second hearing and that if she
_________________________________________________________________
2 Brzonkala's complaint alleges that the Attorney General, who repre-
sented Virginia Tech, knew, or should have known, that Morrison's due
process claim was meritless under Virginia law because of Abrams v.
Mary Washington College, No. CH93-193, slip op. at 4 (Cir. Ct. City of
Fredricksburg, April 27, 1994). The state court in Abrams rejected an
almost identical claim that a student's due process rights were violated
when he was charged and tried under a sexual assault policy that was
adopted after the incident. Id. at 4.
8
wanted the second judicial committee to consider this testimony she
would have to submit affidavits or produce the witnesses. Because
she received insufficient notice, it was impossible for Brzonkala to
obtain the necessary affidavits or live testimony from her student wit-
nesses. In contrast, the school provided Morrison with advance notice
so that he had ample time to procure the sworn affidavits or live testi-
mony of his student witnesses. Virginia Tech exacerbated this diffi-
culty by refusing Brzonkala or her attorney access to the tape
recordings of the first hearing, while granting Morrison and his attor-
ney complete and early access to those tapes. Finally, Virginia Tech
officials prevented Brzonkala from mentioning Crawford in her testi-
mony because charges against him had been dismissed; as a result she
had to present a truncated and unnatural version of the facts.
Nevertheless, after the second hearing, the university judicial com-
mittee found that Morrison had violated the Abusive Conduct Policy,
and re-imposed the same sanction: an immediate two semester sus-
pension. On August 4, 1995, the college again informed Brzonkala,
in writing, that Morrison had been found guilty and been suspended
for a year.
Morrison again appealed. He argued due process violations, the
existence of new information, and the asserted harshness and arbitrar-
iness of the sanction imposed on him as grounds for reversal of the
judicial committee's decision. Senior Vice-President and Provost
Peggy Meszaros overturned Morrison's sanction on appeal. She found
"that there was sufficient evidence to support the decision that [Morri-
son] violated the University's Abusive Conduct Policy and that no
due process violation occurred in the handling of[Morrison's] case."
However, the Provost concluded that the sanction imposed on Morri-
son -- immediate suspension for one school year-- was "excessive
when compared with other cases where there has been a finding of
violation of the Abusive Conduct Policy." Provost Meszaros did not
elaborate on the "other cases" to which she was referring. Instead of
an immediate one year suspension, the Provost imposed "deferred
suspension until [Morrison's] graduation from Virginia Tech." In
addition, Morrison was "required to attend a one-hour educational
session with Rene Rios, EO/AA Compliance Officer regarding
acceptable standards under University Student Policy."
9
Provost Meszaros informed Morrison of the decision to set aside
his sanction by letter on August 21, 1995. Although Brzonkala had
been informed in writing of the result at every other juncture in the
disciplinary proceedings, Virginia Tech did not notify her that it had
set aside Morrison's suspension or that he would be returning to cam-
pus in the Fall. Instead, on August 22, 1995, Brzonkala learned from
an article in The Washington Post that the university had lifted Morri-
son's suspension and that he would return in the Fall 1995 semester.
In fact, Morrison did return to Virginia Tech in the Fall of 1995 --
on a full athletic scholarship.
Upon learning that the university had set aside Morrison's suspen-
sion and was permitting him to return in the Fall, Brzonkala canceled
her own plans to return to Virginia Tech. She feared for her safety
because of previous threats and Virginia Tech's treatment of Morri-
son. She felt that Virginia Tech's actions signaled to Morrison, as
well as the student body as a whole, that the school either did not
believe her or did not view Morrison's conduct as improper. She was
also humiliated by the procedural biases of the second hearing and by
the decision to set aside the sanction against Morrison. Brzonkala
attended no university or college during the Fall 1995 term.
On November 30, 1995, Brzonkala was shocked to learn from
another newspaper article that the second Virginia Tech judicial com-
mittee did not find Morrison guilty of sexual assault, but rather of the
reduced charge of "using abusive language." Despite the fact that the
school had accused and convicted Morrison of sexual assault at the
initial hearing, despite Morrison's testimony at that hearing that he
had had sexual intercourse with Brzonkala after she twice told him
"no," and despite the fact that Dean Goree and Donna Lisker had
unambiguously stated that the second hearing would also address the
"sexual assault" charge against Morrison, the administrators altered
the charge. The university never notified either Brzonkala or her
attorney about the change, leaving her to learn about it months after
the fact from a newspaper article.
Brzonkala believes and so alleges that the procedural irregularities
in, as well as the ultimate outcome of, the second hearing were the
result of the involvement of Head Football Coach Frank Beamer, as
10
part of a coordinated university plan to allow Morrison to play foot-
ball in 1995.
On December 27, 1995, Brzonkala initially filed suit against Morri-
son, Crawford, and Virginia Tech; on March 1, 1996, she amended
her complaint. She alleged inter alia that Virginia Tech, in its han-
dling of her rape claims and failure to punish the rapists in any mean-
ingful manner, violated Title IX of the Education Amendments of
1972, 20 U.S.C. §§ 1681-1688 (1994). She also alleged that Morrison
and Crawford brutally gang raped her because of gender animus in
violation of Title III of the Violence Against Women Act of 1994, 42
U.S.C. § 13981 (1994) ("VAWA"). The United States intervened to
defend the constitutionality of VAWA.
On May 7, 1996 the district court dismissed the Title IX claims
against Virginia Tech for failure to state a claim upon which relief
could be granted. See Brzonkala v. Virginia Polytechnic & State
Univ., 935 F. Supp. 772 (W.D. Va. 1996) (" Brzonkala I"). On July 26,
1996 the court dismissed Brzonkala's VAWA claims against Morri-
son and Crawford, holding that although she had stated a cause of
action under VAWA, enactment of the statute exceeded Congressio-
nal authority and was thus unconstitutional. See Brzonkala v. Virginia
Polytechnic & State Univ., 935 F. Supp. 779 (W.D. Va. 1996)
("Brzonkala II").
II.
Title IX of the Education Amendments of 1972 provides in rele-
vant part:
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 .. . .
20 U.S.C. § 1681(a).
Virginia Tech concedes that it is an "education program . . . receiv-
ing Federal financial assistance." Hence, we need only determine
11
whether Brzonkala has stated a claim that she was"subjected to dis-
crimination" by Virginia Tech "on the basis of sex." 20 U.S.C.
§ 1681(a). The district court recognized that Brzonkala pled a Title IX
claim on the basis of two distinct legal theories: a hostile environment
theory, that Virginia Tech responded inadequately to a sexually hos-
tile environment; and a disparate treatment theory, that Virginia Tech
discriminated against Brzonkala because of her sex in its disciplinary
proceedings.3 The district court rejected both, holding that her com-
plaint failed to state a Title IX claim on which relief could be granted
under either theory. See Brzonkala I, 935 F. Supp. at 775-78. We now
consider whether Brzonkala stated a claim under either of these theo-
ries.
A.
We begin with the hostile environment claim.4 To assess Brzon-
kala's Title IX hostile environment assertions we must address two
issues: (1) what legal standard to apply to a hostile environment claim
under Title IX and (2) whether Brzonkala's complaint satisfies that
standard.
_________________________________________________________________
3 Brzonkala also pled a claim of disparate impact based upon Virginia
Tech's policy of not automatically reporting allegations of rape to the
police. Brzonkala does not press this theory on appeal. We deem it
waived.
4 Virginia Tech makes a truncated argument, without reference to the
complaint or any authority, that Brzonkala has not pled a hostile environ-
ment claim with sufficient specificity. The district court "glean[ed] from
[Brzonkala's] complaint an allegation that[Virginia Tech] had a hand in
permitting a hostile school environment based on Brzonkala's gender."
Brzonkala I, 935 F. Supp. at 778. We agree that Brzonkala has properly
pled a hostile environment claim. All that Brzonkala was required to
plead was "``a short and plain statement of the claim' that will give the
defendant fair notice of what the plaintiff's claim is and the grounds
upon which it rests. . . . Following the simple guide of Rule 8(f) that ``all
pleadings shall be so construed as to do substantial justice,' we have no
doubt that petitioners' complaint adequately set forth a claim and gave
the respondents fair notice of its basis." Conley v. Gibson, 355 U.S. 41,
47-48 (1957) (footnote omitted).
12
1.
Title IX unquestionably prohibits federally supported educational
institutions from practicing "discrimination"on the basis of sex." 20
U.S.C. § 1681(a) (1994). Because of Title IX's"short historical par-
entage," Doe v. Claiborne County, Tenn., 103 F.3d 495, 514 (6th Cir.
1996), we have not previously faced a hostile environment claim
under Title IX. Therefore, in determining whether an educational
institution's handling of a known sexually hostile environment is
actionable "discrimination" under Title IX, we must look to the exten-
sive jurisprudence developed in the Title VII context. See Preston v.
Virginia ex rel. New River Community College, 31 F.3d 203, 207 (4th
Cir. 1994) ("Title VII, and the judicial interpretations of it, provide a
persuasive body of standards to which we may look in shaping the
contours of a private right of action under Title IX."); Roberts v. Col-
orado State Bd. of Agric., 998 F.2d 824, 832 (10th Cir. 1993) ("Title
VII . . . is ``the most appropriate analogue when defining Title IX's
substantive standards . . . .'"); Lipsett v. University of P.R., 864 F.2d
881, 896 (1st Cir. 1988) ("Because Title VII prohibits the identical
conduct prohibited by Title IX, i.e., sex discrimination" Title VII is
"the most appropriate analogue when defining Title IX's substantive
standards . . . .") (citation omitted); see also Franklin v. Gwinnett
County Public Sch., 503 U.S. 60, 75 (1992) (holding Title IX provides
a private cause of action for damages arising from sexual harassment
and relying on Meritor Sav. Bank v. Vinson, 477 U.S. 57, 64 (1986),
a Title VII hostile environment case, to define"discrimination" under
Title IX); H.R. Rep. No. 554 (1971) reprinted in 1972 U.S.C.C.A.N.
2462, 2512 (explaining that Title IX meant to provide coverage simi-
lar to Title VII for "those in education"); and the many cases adopting
Title VII analysis in a Title IX hostile environment context listed
infra at 21-22.5 The district court properly followed this approach and
applied Title VII standards to determine Virginia Tech's liability for
a hostile environment under Title IX. See Brzonkala I, 935 F. Supp.
at 776-78.
_________________________________________________________________
5 But see Smith v. Metro. Sch. Dist. Perry Township, No. 95-3818, 1997
WL 656772 (7th Cir. Oct. 22, 1997) (recognizing that most other courts
apply Title VII principles to Title IX cases but refusing to apply Title
VII's "knew or should have known" standard to a Title IX claim).
13
Virginia Tech argues that this was error, relying solely upon
Rowinsky v. Bryan Indep. Sch. Dist., 80 F.3d 1006 (5th Cir.), cert.
denied, 117 S. Ct. 165 (1996). Rowinsky dealt with a hostile environ-
ment claim by two female students against a school district for its
response to sexual harassment by certain male students. A divided
panel of the Fifth Circuit defined the question presented as "whether
the recipient of federal education funds can be found liable for sex
discrimination when the perpetrator is a party other than the grant
recipient or its agents." Id. at 1010. In answering this question, the
court determined that the language and legislative history of Title IX
indicated that the statute "applies only to the practices of the recipi-
ents themselves," not third parties. Id. at 1013. The Rowinsky court
reasoned that Title VII principles were inapplicable because "[i]n an
employment context, the actions of a co-worker sometimes may be
imputed to an employer through a theory of respondeat superior," but
a school may not be held responsible for the harassment of one stu-
dent by another. Id. at 1011 n.11. Accordingly, the Fifth Circuit held
that "[i]n the case of [Title IX] peer sexual harassment, a plaintiff
must demonstrate that the school district responded to sexual harass-
ment claims differently based on sex. Thus, a school district might
violate Title IX if it treated sexual harassment of boys more seriously
than sexual harassment of girls . . . ." Id. at 1016.
We have no trouble agreeing with the Fifth Circuit that Title IX
"applies only to the practices of the recipients themselves." Id. at
1013. However, in this respect Title IX is no different from Title VII
-- the Rowinsky majority's failure to recognize this results in a deeply
flawed analysis. In framing the question in terms of liability for the
acts of third parties, Rowinsky misstates what a plaintiff, under either
Title VII or Title IX, hopes to prove in a hostile environment claim.
Under Title VII, a plaintiff cannot recover because a fellow employee
sexually harassed the plaintiff, but only because an employer could
have, but failed to, adequately remedy known harassment. As we
recently noted, "an employer is liable for a sexually hostile work
environment created by . . . [an] employee only if the employer knew
or should have known of the illegal conduct and failed to take prompt
and adequate remedial action." Andrade v. Mayfair Management,
Inc., 88 F.3d 258, 261 (4th Cir. 1996) (emphasis added). Conse-
quently, a defendant employer is held responsible under Title VII for
14
the employer's own actions, its inadequate and tardy response, not the
actions of fellow employees.6
Similarly, in a Title IX hostile environment action a plaintiff is not
seeking to hold the school responsible for the acts of third parties (in
this case fellow students). Rather, the plaintiff is seeking to hold the
school responsible for its own actions, i.e. that the school "knew or
should have known of the illegal conduct and failed to take prompt
and adequate remedial action." Andrade, 88 F.3d at 261. Brzonkala
is not attempting to hold Virginia Tech responsible for the acts of
Morrison and Crawford per se; instead she is challenging Virginia
Tech's handling of the hostile environment once she notified college
officials of the rapes. Therefore, the entire focus of Rowinsky's analy-
sis as to whether a school may be held responsible for the acts of third
parties under Title IX misses the point. Brzonkala does not seek to
make Virginia Tech liable for the acts of third parties. She seeks only
to hold the school liable for its own discriminatory actions in failing
to remedy a known hostile environment.
A defendant educational institution, like a defendant employer, is,
of course, liable for its own discriminatory actions: even the Rowinsky
majority acknowledges this. Rowinsky, 80 F.3d at 1012 (Title IX
"prohibits discriminatory acts" by educational institutions receiving
federal financial assistance). Responsibility for discriminatory acts
includes liability for failure to remedy a known sexually hostile envi-
ronment. Accordingly, the district court was correct in applying Title
VII principles to define the contours of Brzonkala's hostile environ-
ment claim. We now turn to that application.
_________________________________________________________________
6 After oral argument in this case, the Eleventh Circuit followed
Rowinsky, see Davis v. Monroe County Bd. of Educ., 120 F.3d 1390
(11th Cir. 1997), but the Ninth Circuit flatly rejected the Rowinsky ratio-
nale. See Oona v. McCaffrey, 122 F.3d 1207 (9th Cir. 1997). As
explained above, we, like the Ninth Circuit, "have difficulty squaring
Rowinsky's reasoning with the Supreme Court's in Franklin" and our
own circuit precedent, e.g., Preston, 31 F.3d at 207, and Andrade, 88
F.3d at 261. See Oona, 122 F.3d at 1210.
15
2.
Under Title VII "to prevail on a ``hostile work environment' sexual
harassment claim, an employee must prove: (1) that he [or she] was
harassed ``because of' his [or her] ``sex'; (2) that the harassment was
unwelcome; (3) that the harassment was sufficiently severe or perva-
sive to create an abusive working environment; and (4) that some
basis exists for imputing liability to the employer." Wrightson v. Pizza
Hut of America, Inc., 99 F.3d 138, 142 (4th Cir. 1996). Similarly,
under Title IX a plaintiff asserting a hostile environment claim must
show: "1) that she [or he] belongs to a protected group; 2) that she
[or he] was subject to unwelcome sexual harassment; 3) that the
harassment was based on sex; 4) that the harassment was sufficiently
severe or pervasive so as to alter the conditions of her [or his] educa-
tion and create an abusive educational environment; and 5) that some
basis for institutional liability has been established." Kinman v.
Omaha Public Sch. Dist., 94 F.3d 463, 467-68 (8th Cir. 1996);
Seamons v. Snow, 84 F.3d 1226, 1232 (10th Cir. 1996) (same); Brown
v. Hot, Sexy & Safer Prods., Inc., 68 F.3d 525, 540 (1st Cir. 1995),
cert. denied, 116 S. Ct. 1044 (1996) (same); Nicole M. v. Martinez
Unified Sch. Dist., 964 F. Supp. 1369, 1376 (N.D. Cal. 1997) (same);
see also Doe, 103 F.3d at 515 (holding that the elements of a "hostile
environment claim under Title VII equally apply under Title IX");
Oona, R.S. v. McCaffrey, 122 F.3d 1207, 1210 (9th Cir. 1997) (apply-
ing Title VII standards to Title IX hostile environment claim); Murray
v. New York Univ. College of Dentistry, 57 F.3d 243, 248-51 (2d Cir.
1995) (same); Collier v. William Penn Sch. Dist. , 956 F. Supp. 1209,
1213-14 (E.D. Pa. 1997) (same); Pinkney v. Robinson, 913 F. Supp.
25, 32 (D.D.C. 1996) (same); Bosley v. Kearney R-1 School Dist., 904
F. Supp. 1006, 1021-22 (W.D. Mo. 1995) (same); Kadiki v. Virginia
Commonwealth Univ., 892 F. Supp. 746, 749-50 (E.D. Va. 1995)
(same); Ward v. Johns Hopkins Univ., 861 F. Supp. 367, 374 (D. Md.
1994) (same).
Virginia Tech concedes that Brzonkala has properly alleged the
first three elements -- that she was a member of a protected class,
that she was subject to unwelcome harassment, and that this harass-
ment was based on her sex. Virginia Tech contends, however, that
Brzonkala has not alleged that she was subjected to a sufficiently abu-
16
sive environment, or established that Virginia Tech may be held liable
for that environment. Accordingly, we address these two elements.
a.
A Title IX plaintiff must allege sexual harassment"sufficiently
severe or pervasive so as to alter the conditions of her education and
create an abusive educational environment." Kinman, 94 F.3d at 468.
Virginia Tech argues that because Brzonkala did not return to school
she experienced no hostile environment. The district court agreed,
holding that:
[T]he hostile environment that Brzonkala alleged never
occurred. Brzonkala left [Virginia Tech] due to her concern
of possible future reprisal in reaction to her pressing
charges. She did not allege that this future reprisal actually
occurred. Second, Brzonkala did not perceive that the envi-
ronment was in fact abusive, but only that it might become
abusive in the future.
Brzonkala I, 935 F. Supp. at 778.
Brzonkala pled that she was violently gang raped, and rape "is ``not
only pervasive harassment but also criminal conduct of the most seri-
ous nature' that is ``plainly sufficient to state a claim for ``hostile envi-
ronment' sexual harassment.'" Gary v. Long , 59 F.3d 1391, 1397
(D.C. Cir.), cert. denied, 116 S. Ct. 569 (1995) (quoting Meritor, 477
U.S. at 67); cf. Brock v. United States, 64 F.3d 1421, 1423 (9th Cir.
1995) ("Just as every murder is also a battery, every rape committed
in the employment setting is also discrimination based on the employ-
ee's sex."); Baskerville v. Culligan Int'l Co., 50 F.3d 428, 430 (7th
Cir. 1995) (citing Meritor and recognizing sexual assault as an
extreme example of sexual harassment); Karen Mellencamp Davis,
Note, Reading, Writing, and Sexual Harassment: Finding a Constitu-
tional Remedy When Schools Fail to Address Peer Abuse, 69 Ind. L.J.
1123, 1124 (1994) ("Rape and molestation provide drastic examples
of the types of sexual harassment students inflict on their peers.").
Moreover, "even a single incident of sexual assault sufficiently
alters the conditions of the victim's employment and clearly creates
17
an abusive work environment for purposes of Title VII liability."
Tomka v. Seiler Corp., 66 F.3d 1295, 1305 (2d Cir. 1995) (citing
Meritor, 477 U.S. at 67); see also King v. Board of Regents, 898 F.2d
533, 537 (7th Cir. 1990) (acknowledging that "a single act [of dis-
crimination] can be enough" to state a hostile environment claim
under Title VII).
Thus, the district court failed to recognize that the rapes themselves
created a hostile environment, and that Virginia Tech was aware of
this environment and never properly remedied it. Indeed, the univer-
sity Provost's rationale for overturning Morrison's immediate suspen-
sion for one school year -- that this punishment was "excessive when
compared with other cases" -- itself evidences an environment hostile
to complaints of sexual harassment and a refusal to effectively rem-
edy this hostile environment. Given the seriousness of the harassment
acts, the total inadequacy of Virginia Tech's redress, and Brzonkala's
reasonable fear of unchecked retaliation including possible violence,
Brzonkala did not have to return to the campus the next year and per-
sonally experience a continued hostile environment. Brzonkala
"should not be punished for a hostile environment so severe that she
was forced out entirely by loss of her legal claim against those
responsible for the situation." Patricia H. v. Berkeley Unified Sch.
Dist., 830 F. Supp. 1288, 1298 (N.D. Cal. 1993); see also Carrero v.
New York City Housing Auth., 890 F.2d 569, 578 (2d Cir. 1989) ("A
female employee need not subject herself to an extended period of
demeaning and degrading provocation before being entitled to seek
the remedies provided under Title VII.").
b.
The remaining issue is whether "some basis for institutional liabil-
ity has been established." Seamons, 84 F.3d at 1232. "[A]n employer
is liable for a sexually hostile work environment created by . . . [an]
employee only if the employer knew or should have known of the
illegal conduct and failed to take prompt and adequate remedial
action." Andrade, 88 F.3d at 261. We must determine whether Brzon-
kala has alleged facts sufficient to support an inference that Virginia
Tech "knew or should have known of the illegal conduct and failed
to take prompt and adequate remedial action." Virginia Tech certainly
knew about the rapes once Brzonkala informed the school and initi-
18
ated disciplinary proceedings against Morrison and Crawford. The
question, therefore, is whether Virginia Tech took prompt and ade-
quate remedial action once it was on notice of the rapes. See Paroline
v. Unisys Corp., 879 F.2d 100, 106 (4th Cir. 1989), vacated in part
on other grounds, 900 F.2d 27 (4th Cir. 1990) (en banc). This inquiry
is necessarily fact-based, and whether a response is"prompt and ade-
quate" will depend on the specific allegations (and ultimately evi-
dence) in each case. Id. at 106-07.
Brzonkala alleges that after she was brutally raped three times she
ceased attending classes, attempted suicide, and sought the aid of the
school psychiatrist. Despite Virginia Tech's awareness of these devel-
opments no university official, including the psychiatrist, ever made
more than a cursory inquiry into the cause of her distress. Further-
more, she alleges that when she directly reported the rapes to Virginia
Tech authorities, the college neither provided a fair hearing nor meted
out appropriate punishment. During the first hearing her attacker
essentially admitted that he raped her after she twice told him no. The
first hearing resulted in a finding that Morrison had committed sexual
assault, and his suspension for one school year. This result was
upheld by an appeals officer, and under Virginia Tech's published
rules that decision was final and not subject to change.
Nevertheless, Virginia Tech voided the first hearing and reopened
the case against her admitted rapist, assertedly in violation of its own
rules and on the basis of a specious legal argument. The second hear-
ing was procedurally biased against Brzonkala in numerous ways, and
unbeknownst to her, Morrison was only charged with the lesser
offense of using abusive language. Still, Morrison was again found
guilty, and suspended for the next school year. On appeal a senior col-
lege official determined that there was sufficient evidence that Morri-
son had violated the University's Abusive Conduct Policy, and that
Morrison's due process argument was meritless. Nonetheless, the
appeals officer decided that suspending Brzonkala's rapist for a
school year was "excessive when compared with other cases." The
university then overturned that suspension and permitted her attacker
to return to school with a full athletic scholarship.
Virginia Tech took this action without notifying Brzonkala,
although she had been informed of the university's actions in the case
19
at every previous juncture. This decision caused her to fear for her
safety and to withdraw from college altogether. As punishment for his
admitted rape Morrison received a "deferred suspension until [his]
graduation from Virginia Tech" and "a one-hour educational session."
In short, Brzonkala alleges that Virginia Tech permitted, indeed
fostered, an environment in which male student athletes could gang
rape a female student without any significant punishment to the male
attackers, nor any real assistance to the female victim. She alleges a
legion of procedural irregularities in the hearing process, Virginia
Tech's disregard for its own rules of finality, and its eventual decision
to impose virtually no penalty for an admitted rape. These facts, if
proven, would allow a jury to find that Virginia Tech's response to
Brzonkala's gang rape was neither prompt nor adequate.
Virginia Tech argues that because it did levy some punishment
against Morrison, its response was adequate. A defendant need not
"make the most effective response possible" to sexual harassment. See
Spicer v. Virginia Dept. of Corrections, 66 F.3d 705, 710 (4th Cir.
1995) (en banc). This does not mean, however, that any remedy, no
matter how delayed or weak, will be adequate. Rather, we have con-
sistently held under Title VII that a defendant employer is "liable for
sexual harassment committed by its employees if no adequate reme-
dial action is taken." Id. Similar reasoning applies in the Title IX con-
text. In light of the seriousness of Brzonkala's allegations, the long
and winding disciplinary process, and the proverbial slap on the wrist
as punishment, we cannot conclude at this preliminary stage that Vir-
ginia Tech's remedy was either prompt or adequate.
For all of these reasons, Brzonkala has alleged sufficient facts to
state a Title IX hostile environment claim against Virginia Tech.
B.
Brzonkala also alleges a Title IX disparate treatment claim, i.e.,
that Virginia Tech discriminated against her on the basis of sex during
the disciplinary proceedings against Morrison and Crawford. In ana-
lyzing Brzonkala's claim, Title VII again "provide[s] a persuasive
body of standards to which we may look in shaping the contours of
a private right of action under Title IX." Preston, 31 F.3d at 207.
20
Indeed, Virginia Tech does not even argue that Title VII principles
are inapplicable in analyzing Title IX disparate treatment claims.
Proof of discriminatory intent is necessary to state a disparate treat-
ment claim under Title VII. International Bhd. of Teamsters v. United
States, 431 U.S. 324, 335 n.15 (1977). Absent some indication in the
statute or regulations, Title IX similarly requires proof of discrimina-
tory intent to state a disparate treatment claim. As such, we must
examine Brzonkala's complaint to see if she has alleged sufficient
facts to infer such intent. See Yusuf v. Vassar College, 35 F.3d 709,
715 (2d Cir. 1994).
In Yusuf, the Second Circuit dealt with allegations of a discrimina-
tory school disciplinary hearing, and described the type of evidence
a plaintiff must plead to establish the requisite intent:
[A]llegations of a procedurally or otherwise flawed [school
disciplinary] proceeding that has led to an adverse and erro-
neous outcome combined with a conclusory allegation of
gender discrimination is not sufficient to survive a motion
to dismiss. The fatal gap is, again, the lack of a particular-
ized allegation relating to a causal connection between the
flawed outcome and gender bias. A plaintiff must thus also
allege particular circumstances suggesting that gender bias
was a motivating factor behind the erroneous finding. Alle-
gations of a causal connection in the case of university disci-
plinary cases can be of the kind that are found in the familiar
setting of Title VII cases. . . . Such allegations might
include, inter alia, statements by members of the disciplin-
ary tribunal, statements by pertinent university officials, or
patterns of decision-making that also tend to show the influ-
ence of gender. Of course, some allegations, such as state-
ments reflecting bias by members of the tribunal, may
suffice both to cast doubt on the accuracy of the disciplinary
adjudication and to relate the error to gender bias.
Yusuf, 35 F.3d at 715 (citations omitted). In this case Brzonkala has
alleged a flawed proceeding and made a conclusory assertion that Vir-
ginia Tech discriminated in favor of male football players. But she
21
has not alleged any discriminatory statements or treatment by Vir-
ginia Tech, or any systematic mistreatment of women or rape victims.
Nevertheless, Brzonkala maintains that she has made sufficient
allegations of Virginia Tech's discriminatory intent. First, she argues
that Virginia Tech's policy of not automatically reporting rapes to the
police shows a discriminatory intent. Brzonkala does not allege, how-
ever, that the university discouraged or hindered her (or other rape
victims) from filing charges, or that the university generally treats
rape less seriously in its own disciplinary proceedings. Nor does she
state facts to support an inference that the university created its non-
reporting policy to discriminate against rape victims. Without an alle-
gation that Virginia Tech itself fails to punish rapists, or impedes
criminal investigations, or separate facts to establish that the policy
was a result of gender bias, the university has not discriminated
against rape victims, because these victims can always pursue crimi-
nal charges themselves. In fact, because of the intensely personal
nature of the crime, as well as the present day difficulties inherent in
pursuing rape charges, a victim of rape may not always want to press
charges or involve the police. See Brzonkala I , 935 F. Supp. at 777.
Next, Brzonkala relies upon allegations that her access to evidence,
like that of the plaintiff in Yusuf, was hampered, as the factual basis
for a finding of discriminatory intent. It is true that in Yusuf the plain-
tiff alleged numerous procedural difficulties. Yusuf, 35 F.3d at 712-
13. But, in Yusuf the plaintiff also asserted that "males accused of sex-
ual harassment at Vassar are ``historically and systematically' and
``invariably found guilty, regardless of the evidence, or lack thereof.'"
Id. at 716. This sort of systematic discrimination, on top of the proce-
dural irregularities, sufficed to state a claim of disparate treatment.
Here we have nothing but "allegations of a procedurally or otherwise
flawed proceeding that has led to an adverse and erroneous outcome
combined with a conclusory allegation of gender discrimination." Id.
at 715. These allegations are "not sufficient to survive a motion to dis-
miss." Id.; cf. Houck v. Virginia Polytechnic Inst. & State Univ., 10
F.3d 204, 206-07 (4th Cir. 1993) ("[I]n the Title VII context, isolated
incidents or random comparisons demonstrating disparities in treat-
ment may be insufficient to draw a prima facie inference of discrimi-
nation without additional evidence that the alleged phenomenon of
inequality also exists with respect to the entire relevant group of
22
employees."); Cook v. CSX Transp. Corp., 988 F.2d 507, 511-13 (4th
Cir. 1993) (same).
Finally, Brzonkala contends that the woefully inadequate punish-
ment meted out against Morrison is in and of itself proof of sex dis-
crimination. Again, without more, this does not prove intentional
gender discrimination against Brzonkala. In sum, the district court
correctly dismissed Brzonkala's Title IX claim of disparate treatment.7
III.
We now turn to the question of whether the district court erred in
dismissing Brzonkala's claim that Morrison and Crawford violated
Title III of the Violence Against Women Act of 1994 ("VAWA"). See
42 U.S.C. § 13981 (1994). The district court held that Brzonkala
alleged a valid VAWA claim, but that VAWA was beyond congres-
sional authority, and thus unconstitutional. See Brzonkala II, 935 F.
Supp. at 801. We agree with the district court that Brzonkala stated
a claim under VAWA. We conclude, however, that Congress acted
within its authority in enacting VAWA and hold that the district court
erred in ruling the statute unconstitutional.
A.
In September 1994, after four years of hearings, Congress enacted
VAWA, a comprehensive federal statute designed to address "the
escalating problem of violent crime against women." S. Rep. No. 103-
138, at 37 (1993). Title III, the portion of the statute at issue in this
case, establishes the right upon which a civil claim can be brought:
_________________________________________________________________
7 Virginia Tech also argues that Brzonkala lacks standing to pursue
injunctive relief in her Title IX claim because she has left school and
does not plan to return. The record before us does not support Virginia
Tech's claim that Brzonkala will never again attend Virginia Tech. All
that the complaint alleges is that Brzonkala did not return to Virginia
Tech in the Fall of 1995. Without a factual basis for believing that
Brzonkala will not re-register at Virginia Tech, we will not dismiss for
mootness her claims for injunctive relief.
23
All persons within the United States shall have the right to
be free from crimes of violence motivated by gender . . . .
42 U.S.C. § 13981(b).
The statute goes on to set forth the elements necessary to plead and
prove such a claim:
(c) Cause of action
A person (including a person who acts under color of any
statute, ordinance, regulation, custom, or usage of any State)
who commits a crime of violence motivated by gender and
thus deprives another of the right declared in subsection (b)
of this section shall be liable to the party injured, in an
action for the recovery of compensatory and punitive dam-
ages, injunctive and declaratory relief, and such other relief
as a court may deem appropriate.
(d) Definitions
For purposes of this section--
(1) the term "crime of violence motivated by
gender" means a crime of violence committed
because of gender or on the basis of gender, and
due, at least in part, to an animus based on the vic-
tim's gender; and
(2) the term "crime of violence" means--
(A) an act or series of acts that would con-
stitute a felony against the person or that
would constitute a felony against property if
the conduct presents a serious risk of physical
injury to another, and that would come within
the meaning of State or Federal offenses
described in section 16 of Title 18, whether or
not those acts have actually resulted in crimi-
24
nal charges, prosecution, or conviction and
whether or not those acts were committed in
the special maritime, territorial, or prison
jurisdiction of the United States; and
(B) includes an act or series of acts that
would constitute a felony described in sub-
paragraph (A) but for the relationship
between the person who takes such action and
the individual against whom such action is
taken.
42 U.S.C. § 13981. Thus, to state a claim under § 13981(c) a plaintiff
victim must allege "a crime of violence motivated by gender." 42
U.S.C. § 13981(c).
Morrison and Crawford do not argue that Brzonkala's allegation of
gang rape fails to satisfy § 13981(d)(2)'s definition of a "crime of vio-
lence." However, they do briefly assert that Brzonkala has failed to
allege a "crime of violence motivated by gender." 42 U.S.C.
§ 13981(c) (emphasis added).
A "crime of violence motivated by gender" is defined as "a crime
of violence committed because of gender or on the basis of gender,
and due, at least in part, to an animus based on the victim's gender."
42 U.S.C. § 13981(d)(1). Congress has indicated that "[p]roof of
``gender motivation' under Title III" of VAWA is to "proceed in the
same ways proof of race or sex discrimination proceeds under other
civil rights laws. Judges and juries will determine``motivation' from
the ``totality of the circumstances' surrounding the event." S. Rep. No.
103-138, at 52; see also S. Rep. No. 102-197, at 50 (1991).
The statute does not outlaw "[r]andom acts of violence unrelated
to gender." 42 U.S.C. § 13981(e)(1). However, bias "can be proven
by circumstantial as well as indirect evidence." S. Rep. No. 103-138,
at 52. "Generally accepted guidelines for identifying hate crimes may
also be useful" in determining whether a crime is gender-motivated,
such as: "language used by the perpetrator; the severity of the attack
(including mutilation); the lack of provocation; previous history of
25
similar incidents; absence of any other apparent motive (battery with-
out robbery, for example); common sense." Id. at 52 n.61.
With these standards in mind, we examine Brzonkala's complaint.
Brzonkala alleges that two virtual strangers, Morrison and Crawford,
brutally raped her three times within minutes after first meeting her.
Although Brzonkala does not allege mutilation or other severe injury,
the brutal and unprotected gang rape itself constitutes an attack of sig-
nificant "severity." Id. Moreover, Brzonkala alleges that the rapes
were completely without "provocation." Id. One of her assailants con-
ceded during the college disciplinary hearing that Brzonkala twice
told him, "No" before he initially raped her. Further, there is an
absence of any "apparent motive" for the rapes other than gender bias.
Id. For example, no robbery or other theft accompanied the rapes.
Finally, Brzonkala alleges that when Morrison had finished raping
her for the second time he told her, "You better not have any fucking
diseases." She also alleges that Morrison later announced to the col-
lege dining room, "I like to get girls drunk and fuck the shit out of
them." Verbal expression of bias by an attacker is certainly not man-
datory to prove gender bias, Brzonkala II, 935 F. Supp. at 785 ("The
purpose of the statute would be eviscerated if, to state a claim, a
plaintiff had to allege, for example, that the defendant raped her and
stated, ``I hate women.'"), but it is "helpful." See S. Rep. No. 103-138,
at 51. As the district court noted, Morrison's "statement reflects that
he has a history of taking pleasure from having intercourse with
women without their sober consent" and that "[t]his statement indi-
cates disrespect for women in general and connects this gender disre-
spect to sexual intercourse." Brzonkala II , 935 F. Supp. at 785. In
addition, since Brzonkala alleged that Morrison and Crawford
engaged in a conspiracy to rape her, Morrison's comments are also
relevant in assessing Crawford's liability. See Loughman v. Consol-
Pennsylvania Coal Co., 6 F.3d 88, 103 (3rd Cir. 1993) (concluding
that in a civil conspiracy "every conspirator is jointly and severally
liable for all acts of co-conspirators taken in furtherance of the con-
spiracy"); United States v. Carpenter, 961 F.2d 824, 828 n.3 (9th Cir.
1992) (holding that "acts and statements in furtherance of the conspir-
acy may be attributed to" a co-conspirator and citing Pinkerton v.
United States, 328 U.S. 640, 646-47 (1946)); United States v.
Chorman, 910 F.2d 102, 111 (4th Cir. 1990) (same).
26
In sum, Brzonkala has clearly alleged violations of VAWA. Virtu-
ally all of the earmarks of "hate crimes" are asserted here: an unpro-
voked, severe attack, triggered by no other motive, and accompanied
by language clearly stating bias. The district court correctly concluded
that Brzonkala alleged a VAWA claim.
B.
The remaining issue before us is whether the district court correctly
held that Congress exceeded its constitutional authority in enacting
VAWA. Congress itself directly addressed this question. On the basis
of numerous specific findings and a mountain of evidence, Congress
stated that it was invoking its authority "[p]ursuant to . . . section 8
of Article I of the Constitution" to enact a new civil rights law to pro-
tect "victims of gender motivated violence and to promote public
safety, health, and activities affecting interstate commerce . . . ." 42
U.S.C. § 13981(a) (emphasis added).8 Article I, Section 8, Clause 3
of the Constitution empowers Congress to "regulate Commerce . . .
among the several states." U.S. Const. art. I,§ 8, cl. 3.
In assessing whether Congress exceeded its authority under the
Commerce Clause, we note that every act of Congress is entitled to
a "strong presumption of validity and constitutionality," Barwick v.
Celotex Corp., 736 F.2d 946, 955 (4th Cir. 1984), and will be invali-
dated only "for the most compelling constitutional reasons." Mistretta
v. United States, 488 U.S. 361, 384 (1989). The Supreme Court has
directed that "[g]iven the deference due``the duly enacted and care-
fully considered decision of a coequal and representative branch of
our Government,'" a court is "not lightly[to] second-guess such legis-
lative judgments." Westside Comm. Bd. of Educ. v. Mergens, 496 U.S.
226, 251 (1990) (quoting Walters v. National Ass'n of Radiation
Survivors, 473 U.S. 305, 319 (1985)). This is"particularly" true
when, as here, the legislative "judgments are based in part on empiri-
_________________________________________________________________
8 Congress also expressly stated that Section 5 of the Fourteenth
Amendment authorized enactment of VAWA. See 42 U.S.C. § 13981(a).
In view of our holding that VAWA is a valid exercise of Congress'
power under the Commerce Clause, we need not reach the question of
whether the Fourteenth Amendment also provided authorization for
VAWA.
27
cal determinations." Id. Deference to such judgments by the legisla-
ture constitutes the "paradigm of judicial restraint." FCC v. Beach
Communications, Inc., 508 U.S. 307, 314 (1993).
Moreover, "[t]he task of a court that is asked to determine whether
a particular exercise of congressional power is valid under the Com-
merce Clause is relatively narrow." Hodel v. Virginia Surface Mining
& Reclamation Ass'n, 452 U.S. 264, 276 (1981); see also United
States v. Lopez, 514 U.S. 549, 568 (1995) (Kennedy, J., concurring)
("The history of the judicial struggle to interpret the Commerce
Clause . . . counsels great restraint before the Court determines that
the Clause is insufficient to support an exercise of the national
power."). Thus, a reviewing court need only determine "whether a
rational basis existed for concluding that a regulated activity" substan-
tially affects interstate commerce. Lopez, 514 U.S. at 557.
With these directives in mind, we consider whether Congress
exceeded its authority under the Commerce Clause in passing
VAWA. The Supreme Court has long held, and recently reiterated in
Lopez, that there are "three broad categories of activity that Congress
may regulate" under the Commerce Clause:
First, Congress may regulate the use of the channels of
interstate commerce. . . . Second, Congress is empowered to
regulate and protect the instrumentalities of interstate com-
merce, or persons or things in interstate commerce, even
though the threat may come only from intrastate activities.
. . . Finally, Congress' commerce authority includes the
power to regulate those activities having a substantial rela-
tion to interstate commerce . . . i.e., those activities that sub-
stantially affect interstate commerce.
Lopez, 514 U.S. at 558-559 (citations omitted); United States v.
Bailey, 112 F.3d 758, 765-66 (4th Cir. 1997), cert. denied, 118 S. Ct.
240 (1997) (rejecting a Lopez challenge to Title II of VAWA and stat-
ing Lopez's three-part test).
Here, as in Lopez, "[t]he first two categories of authority may be
quickly disposed of:" VAWA "is not a regulation of the use of the
channels of interstate commerce, nor is it an attempt to prohibit the
28
interstate transportation of a commodity through the channels of com-
merce; nor can [VAWA] be justified as a regulation [protecting] an
instrumentality of interstate commerce or a thing in interstate com-
merce." Lopez, 514 U.S. at 557. "Thus, if [VAWA] is to be sustained,
it must be under the third category as a regulation of an activity that
substantially affects interstate commerce." Id.
The Lopez Court applied the substantial effects test to the Gun Free
School Zones Act, which made it a federal crime to knowingly pos-
sess a firearm in a school zone. 18 U.S.C. § 922(q) (1988 ed. Supp.
V) (amended 1994, 1996). In passing § 922(q), Congress attempted
to supplant state criminal laws with a federal statute that criminalized
an activity that on its face had "nothing to do with" commerce, with-
out making any findings demonstrating the activity affected interstate
commerce or including a jurisdictional element ensuring a case by
case connection with interstate commerce. Lopez , 514 U.S. at 561 and
n.3. In these circumstances, the Supreme Court "would have [had] to
pile inference upon inference" to find a rational basis for concluding
the statute "substantially affect[ed] any sort of interstate commerce."
Id. at 567. This the Court declined to do, and so declared § 922(q)
unconstitutional. Id.
In contrast to the congressional silence in Lopez, Congress made
voluminous findings when it enacted VAWA. Accordingly, we can
begin where the Lopez Court could not, by"evaluat[ing] the legisla-
tive judgment that the activity in question substantially affected inter-
state commerce." Lopez, 514 U.S. at 563; see also City of Boerne v.
Flores, 117 S. Ct. 2157, 2169-2170 (1997) (recognizing the impor-
tance of Congressional findings in determining the"appropriateness
of [Congress's] remedial measures"). In doing so, we recognize that
discerning a rational basis "is ultimately a judicial rather than a legis-
lative question," Lopez, 514 U.S. at 557 n.2 (quoting Heart of Atlanta
Motel, Inc. v. United States, 379 U.S. 241, 273 (1964) (Black, J., con-
curring)), and "[s]imply because Congress may conclude that a partic-
ular activity substantially affects interstate commerce does not
necessarily make it so." Id. (quoting Hodel, 452 U.S. at 311 (Rehn-
quist, J., concurring)). But a "court must defer" to congressional find-
ings when there is "a rational basis for such a finding." Hodel, 452
U.S. at 276. Indeed, "[t]he Supreme Court has without fail given
effect to such congressional findings." Laurence H. Tribe, American
29
Constitutional Law, 310-11 (2d ed. 1988). Accordingly, we first
examine the congressional findings made in connection with VAWA.
See United States v. Leshuk, 65 F.3d 1105, 1111-12 (4th Cir. 1995)
(rejecting a Lopez challenge to the "Comprehensive Drug Abuse Pre-
vention and Control Act" and beginning and ending our analysis by
relying totally upon Congress's "detailed findings" on the interstate
commerce effects).
1.
The Congressional findings and testimony that support the passage
of VAWA pursuant to the Commerce Clause are detailed and extensive.9
Congress carefully documented the enormity of the problem caused
by violence against women. For example, Congress found that:
* "Violence is the leading cause of injury to women ages
15-44 . . . ." S. Rep. No. 103-138, at 38 (1993).
* "[F]or the past 4 years [prior to 1993], the U.S. Surgeons
General have warned that family violence -- not heart
attacks or cancer or strokes -- poses the single largest
threat of injury to adult women in this country." Id. at
41-42 (footnote omitted).
* "An estimated 4 million American women are battered
each year by their husbands or partners. Approximately
95% of all domestic violence victims are women." H.R.
Rep. No. 103-395, at 26 (1993) (footnotes omitted).
* "Three out of four American women will be victims of
_________________________________________________________________
9 Most of Congress's copious findings do not appear in the statute
itself, but in applying rational basis review courts also consider congres-
sional committee findings. See Lopez, 519 U.S. at 562; Preseault v. ICC,
494 U.S. 1, 17 (1990) (citing House Report in discussion of congressio-
nal findings regarding effect on interstate commerce of federal "rails-to-
trails" statute); Hodel, 452 U.S. at 277-80 (relying on committee reports
to uphold Congress's power to enact the Surface Mining Act); Hoffman
v. Hunt, No. 96-1581, 1997 WL 578787 at *10 (4th Cir. Sept. 19, 1997)
(relying upon a House Report to uphold FACE).
30
violent crimes sometime during their life." Id. at 25
(footnote omitted).
* "Since 1988, the rate of incidence of rape has risen four
and a half times as fast as the total crime rate. There
were 109,062 reported rapes in the United States in 1992
-- one every five minutes. The actual number of rapes
committed is approximately double that figure . . . ." Id.
(footnotes omitted).
The committee reports similarly found that "the cost to society"
resulting from violence against women "is staggering." S. Rep. No.
101-545, at 33 (1990). Domestic violence alone is estimated to cost
employers "at least $3 billion -- not million, but billion -- dollars a
year" due to absenteeism in the workplace. Id. Furthermore, "esti-
mates suggest that we spend $5 to $10 billion a year on health care,
criminal justice, and other social costs of domestic violence." S. Rep.
No. 103-138, at 41. Moreover, "[i]t is not a simple matter of adding
up the medical costs, or law enforcement costs, but of adding up all
of those expenses plus the costs of lost careers, decreased productiv-
ity, foregone educational opportunities, and long-term health prob-
lems." S. Rep. No. 101-545, at 33.
These monetary figures were accompanied by other evidence
establishing that violence against women has a substantial impact on
interstate commerce:
Over 1 million women in the United States seek medical
assistance each year for injuries sustained by their husbands
or other partners. As many as 20 percent of hospital emer-
gency room cases are related to wife battering.
But the costs do not end there: woman abuse"has a dev-
astating social and economic effect on the family and the
community." . . . It takes its toll in homelessness: one study
reports that as many as 50 percent of homeless women and
children are fleeing domestic violence. It takes its toll in
employee absenteeism and sick time for women who either
cannot leave their homes or are afraid to show the physical
effects of the violence.
31
S. Rep. No. 101-545, at 37. Fear of violence "takes a substantial toll
on the lives of all women, in lost work, social, and even leisure oppor-
tunities." S. Rep. No. 102-197, at 38 (1991).
Thus, based upon an exhaustive and meticulous investigation of the
problem, Congress found that:
crimes of violence motivated by gender have a substantial
adverse effect on interstate commerce, by deterring potential
victims from traveling interstate, from engaging in employ-
ment in interstate business, and from transacting with busi-
ness, and in places involved, in interstate commerce. . . by
diminishing national productivity, increasing medical and
other costs, and decreasing the supply of and the demand for
interstate products.
H.R. Conf. Rep. No. 103-711, at 385 (1994), reprinted in 1994
U.S.C.C.A.N. 1839, 1853.10
In concluding that "[t]here is no doubt that Congress has the power
to create the Title III remedy under" the Commerce Clause, Congress
noted that:
[g]ender-based crimes and the fear of gender-based crimes
restricts movement, reduces employment opportunities,
_________________________________________________________________
10 House Conference Report 103-711, containing the express finding
that "crimes of violence motivated by gender have a substantial adverse
effect on interstate commerce," was drafted by the House and Senate
Conference Committees on VAWA, and was passed along with VAWA
by the House on August 21, 1994 and by the Senate on August 24, 1994.
See Violence Against Women § 5:42 (David Frazee et al. eds., 1997).
Indeed, the findings in Report 103-711 were part of the original text of
VAWA and were removed to the conference report only to avoid clutter-
ing the U.S. Code with "``congressional findings' that had no force of
law." Id. § 5:40. VAWA, of course, was enacted before Lopez, when the
necessity of expressly finding that regulated activity had a "substantial
effect" upon commerce (rather than just an "effect") was not altogether
clear. Thus, it is particularly telling that in passing VAWA Congress
found that gender-based violence against women does"substantially
affect" interstate commerce.
32
increases health expenditures, and reduces consumer spend-
ing, all of which affect interstate commerce and the national
economy. Gender-based violence bars its most likely targets
-- women -- from full participation in the national econ-
omy. For example, studies report that almost 50 percent of
rape victims lose their jobs or are forced to quit in the after-
math of the crime. Even the fear of gender-based violence
affects the economy because it deters women from taking
jobs in certain areas or at certain hours that pose a signifi-
cant risk of such violence. . . . For example, women often
refuse higher paying night jobs in service/retail industries
because of the fear of attack. Those fears are justified: the
No. 1 reason why women die on the job is homicide and the
highest concentration of those women is in service/retail
industries. . . . 42 percent of deaths on the job of women are
homicides; only 12 percent of the deaths of men on the job
are homicides.
S. Rep. No. 103-138, at 54 & n.70 (footnotes omitted).
Our task is simply to discern whether Congress had"a rational
basis" for concluding that the regulated activity-- here violence
against women -- substantially "affected interstate commerce."
Lopez, 519 U.S. at 558-559.11 After four years of hearings and consid-
_________________________________________________________________
11 We and the ten other circuits to consider the matter have all applied
the rational basis test to post-Lopez Commerce Clause challenges. See
Hoffman, 1997 WL 578787 at *7-*11 (stating and applying rational basis
test); United States v. Knutson, 113 F.3d 27, 29 (5th Cir. 1997) (same);
United States v. Parker, 108 F.3d 28, 30 (3rd Cir. 1997), cert. denied,
118 S. Ct. 111 (1997) (same); United States v. Olin Corp., 107 F.3d
1506, 1509 (11th Cir. 1997) (same); United States v. Bramble, 103 F.3d
1475, 1482 (9th Cir. 1996) (same); Terry v. Reno , 101 F.3d 1412, 1416
(D.C. Cir. 1996), cert. denied, 117 S. Ct. 2431 (1997) (same); Proyect
v. United States, 101 F.3d 11, 12 (2d Cir. 1996) (same); United States
v. McHenry, 97 F.3d 125, 128 (6th Cir. 1996), cert. denied, 117 S. Ct.
992 (1997) (same); United States v. Hampshire , 95 F.3d 999, 1001 (10th
Cir. 1996), cert. denied, 117 S. Ct. 753 (1997) (same); United States v.
Kenney, 91 F.3d 884, 889 (7th Cir. 1996) (same); United States v.
Dinwiddie, 76 F.3d 913, 920 (8th Cir. 1996), cert. denied, 117 S. Ct. 613
(1996) (same).
33
eration of voluminous testimonial, statistical, and documentary evi-
dence, Congress made an unequivocal and persuasive finding that
violence against women substantially affects interstate commerce.
Even the district court recognized that "[a] reasonable inference from
the congressional findings is that violence against women has a major
effect on the national economy." Brzonkala II , 935 F. Supp. at 792.
Accordingly, whatever one's doubts as to whether Title III of VAWA
represents a good policy decision, Seaton v. Seaton, 971 F. Supp. 118
(E.D. Tenn. 1997), we can only conclude that Congress' findings are
grounded in a rational basis. We note that every court to consider the
question except the court below, has so held. See Crisonino v. New
York City Housing Auth., No. 96 Civ. 9742 (HB) (S.D.N.Y. Nov. 18,
1997); Asimov v. Lake, No. 976263, 1997 WL 538718 (M.D. Ill. Aug.
27, 1997); Seaton, 971 F. Supp. at 1194; Doe v. Hartz, 970 F. Supp.
1375 (N.D. Iowa 1997); Doe v. Doe, 929 F. Supp. 608 (D. Conn.
1996).
In fact, in United States v. Leshuk, 65 F.3d 1105 (4th Cir. 1995),
we recently relied exclusively on less extensive Congressional find-
ings to uphold Section 401(a)(1) of the Comprehensive Drug Abuse
Prevention and Control Act of 1970, 21 U.S.C. § 841(a)(1) (1994). Id.
at 1111, 1112. In Leshuk the defendant was convicted of possessing
and cultivating marijuana in violation of § 841(a)(1), and raised a
Lopez challenge to the statute. Id. at 1107-08. We held that Lopez did
not require the invalidation of § 841(a)(1) because the "intrastate drug
activities" that it regulated "are clearly tied to interstate commerce."
65 F.3d at 1112. We based our conclusion wholly on Congress's "de-
tailed findings that intrastate manufacture, distribution, and posses-
sion of controlled substances, as a class of activities, have a
substantial and direct effect upon interstate drug trafficking and that
effective control of the interstate problems requires the regulation of
both intrastate and interstate activities." Id. (internal quotation marks
omitted). Without further ado we "relied upon these findings" to hold
the Commerce Clause authorized Congress to enact this statute. Id.
Similarly, earlier this year, in Hoffman v. Hunt we reviewed "the
congressional reports" to uphold the Freedom of Access to Clinics
Act (FACE), determining that those reports made"clear" that "several
aspects of interstate commerce are directly and substantially affected
by the regulated conduct." No. 96-1591, 1997 WL 578787 at *11 (4th
34
Cir., Sept. 19, 1997). Because Congress had made these persuasive
findings we concluded that we did not need to "``pile inference upon
inference' to find a substantial effect on interstate commerce." Id.
(quoting Lopez, 514 U.S. at 567). The congressional findings setting
forth VAWA's substantial effect on interstate commerce are far more
detailed and complete than those we found sufficient to establish a
rational basis for the statutes challenged in Leshuk and Hoffman, and
we thus have no hesitation similarly upholding VAWA. When a court
finds "that the legislators, in light of the facts and testimony before
them, have a rational basis for finding a chosen regulatory scheme
necessary to the protection of commerce, [its] investigation is at an
end." United States v. Beuckelaere, 91 F.3d 781, 785 (6th Cir. 1996)
(quoting Katzenbach v. McClung, 379 U.S. 294, 303 (1964)).12
2.
Contrary to the district court's holding, and the arguments of Mor-
rison and Crawford, nothing in Lopez requires a different result.
In noting that § 922(q) "plow[ed] thoroughly new ground and
represent[ed] a sharp break with the longstanding pattern of federal
firearms legislation," Lopez, 519 U.S. at 563, the Lopez Court clearly
indicated that in finding this statute unconstitutional it was enunciat-
ing a "limited holding." Id. at 568 (Kennedy, J., concurring).
_________________________________________________________________
12 Indeed, post-Lopez, numerous courts have reiterated that such defer-
ence to congressional findings is required; "court[s] must defer to a con-
gressional finding that a regulated activity affects interstate commerce,
if there is any rational basis for such a finding." Terry, 101 F.3d at 1416;
Proyect, 101 F.3d at 12-13 (same); United States v. McKinney, 98 F.3d
974, 979 (7th Cir. 1996) (same), cert. denied , 117 S. Ct. 1119 (1997);
Hampshire, 95 F.3d at 1004 (same); United States v. Kim, 94 F.3d 1247,
1250 (9th Cir. 1996) (same); United States v. Bishop, 66 F.3d 569, 577
(3d Cir. 1995), cert. denied, 116 S. Ct. 1444 (1996) (same); Cheffer v.
Reno, 55 F.3d 1517, 1520-21 (11th Cir. 1995) (same); see also Knutson,
113 F.3d at 29-31 (upholding 18 U.S.C. § 922(o) solely on the basis of
"congressional findings" and noting that Lopez "made clear that federal
Commerce Clause legislation continues to merit a high degree of judicial
deference"); United States v. Monteleone, 77 F.3d 1086, 1091-92 (8th
Cir. 1996) (upholding 18 U.S.C. § 922(d) on the basis of "explicit Con-
gressional findings").
35
Although the Court refused to make an "additional expansion" to
Congress's Commerce power to uphold § 922(q), and clarified that a
regulated activity must "substantially affect interstate commerce," it
did not overrule a single Commerce Clause precedent, signal a
decrease in congressional power under the Commerce Clause, or
abandon the "rational basis" test. Id. at 1629-34; see also United
States v. Wright, 117 F.3d 1265, 1269 (11th Cir. 1997) ("Lopez did
not alter our approach to determining whether a particular statute falls
within the scope of Congress's Commerce Clause authority."); United
States v. Wilson, 73 F.3d 675, 685 (7th Cir. 1995) (The Lopez Court
"reaffirmed rather than overturned the previous half century of Com-
merce Clause precedent"), cert. denied, 117 S. Ct. 46-47 (1996).
In fact, in describing the history of the Court's Commerce Clause
jurisprudence, Lopez forthrightly affirmed the modern expansive view
of Congress's power under the Commerce Clause, and eschewed the
more restrictive view of "commerce" based on formalistic distinctions
between "direct" and "indirect" effects on interstate commerce. Id. at
555. The Court noted that "modern-era precedents . . . confirm that
this power is subject to outer limits," i.e. it cannot "be extended so as
to embrace effects upon interstate commerce so indirect and remote"
as to "obliterate the distinction between what is national and what is
local and create a completely centralized government." Id. at 1628-29.
But the Court expressly followed decades of "modern-era precedents"
recognizing that a court's only role in considering a Commerce
Clause challenge is "to decide whether a rational basis existed for
concluding that a regulated activity sufficiently affected interstate
commerce." Id. at 557 (citing Hodel , 452 U.S. at 276-80; Perez v.
United States, 402 U.S. 146, 155-56 (1971)); Katzenbach v. McClung,
379 U.S. 294, 299-301 (1964); and Heart of Atlanta Motel, 379 U.S.
at 252-253); see also Lopez, 519 U.S. at 374 (Kennedy, J., concur-
ring) (Lopez does not "call in question" prior commerce clause
"principles").13
_________________________________________________________________
13 Thus, it is unsurprising that"courts have resisted urgings to extend
Lopez beyond § 922(q)." United States v. Wall, 92 F.3d 1444, 1448 (6th
Cir. 1996), cert. denied, 117 S. Ct. 690 (1997) (upholding 18 U.S.C.
§ 1955, which prohibits inter alia intrastate illegal gambling activities).
Indeed, post-Lopez innumerable federal statutes have been challenged on
Commerce Clause grounds but not a single one has been invalidated by
36
Morrison and Crawford's reliance on Lopez falters not only
because they ignore the limited nature of the Lopez holding but also
because VAWA differs from § 922(q) in several important respects.
In order to uphold VAWA, we need not "pile inference upon infer-
ence" as the Government asked the Court to do in Lopez. Lopez, 519
U.S. at 567. Because Congress made no findings to support § 922(q)
the Government was forced to argue that guns in schools affected
commerce based upon several tenuous, multi-layered theories. See id.
at 564; Terry, 101 F.3d at 1418 (quoting Lopez, 519 U.S. at 564) (For
_________________________________________________________________
a federal appellate court. See, e.g., Hoffman, 1997 WL 578787 *5-*11
(upholding 18 U.S.C. § 248, which prohibits interference with access to
reproductive health clinics); United States v. Soderna, 82 F.3d 1370,
1373-74 (7th Cir.), cert. denied, 117 S. Ct. 507 (1996) (same); Dinwiddie,
76 F.3d at 919-21 (same); Terry, 101 F.3d at 1415-18 (same); Wilson, 73
F.3d at 679-88 (same); Cheffer, 55 F.3d at 1519-21 (same); Wright, 117
F.3d at 1268-1271 (upholding 18 U.S.C. § 922(o), which prohibits intra-
state possession of machine gun, and noting that every circuit to consider
the question had so held); United States v. Crump, 120 F.3d 462, 465-66
(4th Cir. 1997) (upholding 18 U.S.C.A. § 924(c)(1), which prohibits use
and carrying of a firearm during and in relation to a drug trafficking
crime, and noting "all of the circuits that have considered the question"
had upheld the statute in the face of a Lopez challenge); Olin Corp., 107
F.3d at 1509-10 (upholding CERCLA, 42 U.S.C. §§ 9601-9675); United
States v. Allen, 106 F.3d 695, 700-1 (6th Cir. 1997), cert. denied, (1997)
(upholding 21 U.S.C. § 860(a), the Drug Free School-Zones Act); United
States v. Hawkins, 104 F.3d 437, 439-40 (D.C. Cir. 1997), cert. denied,
118 S. Ct. 126 (1997) (same); United States v. Wells, 98 F.3d 808, 810-
11 (4th Cir. 1996) (upholding 18 U.S.C. § 922(g), which prohibits pos-
session of a firearm by a felon, and noting ten other circuits that had
upheld its constitutionality under Lopez); United States v. Genao, 79
F.3d 1333, 1335-37 (2d Cir. 1996) (same); United States v. Tisor, 96
F.3d 370, 373-75 (9th Cir. 1996), cert. denied , 117 S. Ct. 1012 (1997)
(upholding congressional authority to prohibit intrastate possession or
sale of narcotics); Leshuk, 65 F.3d at 1111-12 (same); Bramble, 103 F.3d
at 1479-82 (upholding the Eagle Protection Act, 16 U.S.C. § 668);
United States v. Michael R., 90 F.3d 340, 343-45 (9th Cir. 1996)
(upholding 18 U.S.C. § 922(x)(2), which prohibits juvenile possession of
a handgun); United States v. Lomayaoma, 86 F.3d 142, 144-46 (9th Cir.),
cert. denied, 117 S. Ct. 272 (1996) (upholding the Indian Major Crimes
Act, 18 U.S.C. § 1153).
37
example, "gun possession near schools threatens the educational envi-
ronment, which hampers the educational process, which creates a
``less productive citizenry' which adversely affects ``the Nation's eco-
nomic well-being' and which in the end adversely affects interstate
commerce."). VAWA, by contrast, regulates behavior -- gender-
based violent crime against women -- which Congress has found sub-
stantially and gravely affects interstate commerce on the basis of
abundant evidence. Cf. Perez, 402 U.S. at 154 (rejecting Commerce
Clause challenge because "credit transactions, though purely intra-
state, may in the judgment of Congress affect interstate commerce").
To connect VAWA with interstate commerce, a court need not make
any inferences -- Congress itself has clearly established and docu-
mented that gender based violence against women substantially
affects interstate commerce.
Additionally, unlike § 922(q), VAWA does not invade areas of tra-
ditional state control. The Lopez Court noted that "[u]nder our federal
system, the ``States possess primary authority for defining and enforc-
ing the criminal law.' . . . When Congress criminalizes conduct
already denounced as criminal by the States, it effects a ``change in the
sensitive relation between federal and state criminal jurisdiction.'"
Lopez, 519 U.S. at 561 (quoting Brecht v. Abramson, 507 U.S. 619,
635 (1993), and United States v. Enmons, 410 U.S. 396, 411-12
(1973)). Title III of VAWA is not a criminal statute and it displaces
no state criminal law. Cf. id. (noting that statute in Lopez "displace[s]
state policy choices" and "overrides legitimate state . . . laws"). Noth-
ing in Title III prevents a victim of gender-based violence from bring-
ing state criminal charges or pursuing state tort remedies, or affects
how the state treats those claims.
In fact, far from displacing state law, Congress carefully designed
VAWA to harmonize with state law and protect areas of state con-
cern. Thus, VAWA references state criminal laws in defining a
"crime of violence." See 42 U.S.C.§ 13981(d)(2) (defining "crime of
violence" as "an act or series of acts that would constitute a felony
against the person or that would constitute a felony against property
if the conduct presents a serious risk of physical injury to another, and
that would come within the meaning of State or Federal offenses
described in section 16 of Title 18 . . . .") (emphasis added). More-
over, Congress expressly limited the reach of VAWA in further defer-
38
ence to traditional areas of state expertise such as divorce or child
custody proceedings. See 42 U.S.C. § 13981(e)(4) (VAWA does not
confer "jurisdiction over any State law claim seeking the establish-
ment of a divorce, alimony, equitable distribution of marital property,
or child custody decree."). In sum, VAWA acts to supplement, rather
than supplant, state criminal, civil, and family law controlling gender
violence. The States are still free to "experiment[ ] to devise various
solutions" to the problems of gender-based violence against women.
Lopez, 519 U.S. at 581 (Kennedy, J., concurring).14
In addition, unlike the statute invalidated in Lopez, VAWA does
not occupy a legal territory where "States lay claim by right of history
and expertise." Id. at 1641 (Kennedy, J., concurring). Instead, VAWA
legislates in an area -- civil rights -- that has been a federal responsi-
bility since shortly after the Civil War. Furthermore, federal action is
particularly appropriate when, as here, there is persuasive evidence
that the States have not successfully protected the rights of a class of
citizens. In passing VAWA Congress made extensive and convincing
findings that state law had failed to successfully address gender-
motivated violence against women. Congress concluded that:
Other State remedies have proven inadequate to protect
women against violent crimes motivated by gender animus.
Women often face barriers of law, of practice, and of preju-
dice not suffered by other victims of discrimination. Tradi-
tional State law sources of protection have proved to be
difficult avenues of redress for some of the most serious
crimes against women. Study after study has concluded that
crimes disproportionately affecting women are often treated
less seriously than crimes affecting men. [C]ollectively,
these reports provide overwhelming evidence that gender
_________________________________________________________________
14 In fact, State Attorneys General from forty-one states supported the
passage of VAWA. They told Congress: "Our experience as attorneys
general strengthens our belief that the problem of violence against
women is a national one, requiring federal attention, federal leadership,
and federal funds." See Crimes of Violence Motivated by Gender: Hear-
ing Before the Subcomm. on Civil and Constitutional Rights of the Senate
Comm. on the Judiciary, 103d Cong. 34-36 (1993) (Letter from State
Attorneys General).
39
bias permeates the court system and that women are most
often its victims.
S. Rep. No. 103-138, at 49 (footnotes omitted). 15 In VAWA, Congress
has passed a civil rights law, a quintessential area of federal expertise,
in response to "existing bias and discrimination in the criminal justice
system." H.R. Conf. Rep. No. 103-711, at 385 (1994), reprinted in
1994 U.S.C.C.A.N. 1839, 1853.
Nonetheless, Morrison and Crawford argue that Lopez requires a
different result. They note that § 922(q) had"nothing to do with
``commerce'" and was not "an essential part of a larger regulation of
economic activity," Lopez, 519 U.S. at 561, and assert that VAWA
similarly regulates a non-economic activity and is therefore beyond
Congress's Commerce Clause authority. This argument, however,
misreads both Lopez and VAWA.
_________________________________________________________________
15 The studies referred to in the above quotation were largely State-
sponsored, including the following: Administrative Office of the Califor-
nia Courts Judicial Counsel, Achieving Equal Justice for Women and
Men in the Courts (1990); Colorado Supreme Court Task Force on Gen-
der Bias in the Courts, Gender & Justice in the Colorado Courts (1990);
Connecticut Task Force on Gender Justice and the Courts (1991); Flor-
ida Supreme Court Gender Bias Study Commission, Report (1990);
Supreme Court of Georgia, Gender and Justice in the Courts (1991); Illi-
nois Task Force, Gender Bias in the Courts (1990); Maryland Special
Joint Committee, Gender Bias in the Courts (1989); Massachusetts
Supreme Judicial Court, Gender Bias Study of the Court System in
Massachusetts (1989); Michigan Supreme Court Task Force on Gender
Issues in the Courts, Final Report (1989); Minnesota Supreme Court
Task Force for Gender Fairness in the Courts, Final Report (1989);
Nevada Supreme Court Gender Bias Task Force, Justice For Women
(1989); New Jersey Supreme Court Task Force, Women in the Courts
(1984); New York Task Force on Women in the Courts, Report (1986);
Rhode Island Supreme Court Committee on Women in the Courts (1987);
Utah Task Force on Gender and Justice, Report to the Utah Judicial
Council (1990); Vermont Supreme Court and Vermont Bar Association,
Gender and Justice: Report of the Vermont Task Force on Gender Bias
in the Legal System (1991); Washington State Task Force, Gender and
Justice in the Courts (1989); Wisconsin Equal Justice Task Force, Final
Report (1991). See S. Rep. No. 103-138, at 49 n.52.
40
First, as Morrison and Crawford concede, Lopez clearly does not
hold that a statute must regulate economic activity to pass muster
under the Commerce Clause. Such a holding could not be squared
with past Commerce Clause jurisprudence, or Lopez itself. Lopez
quoted Wickard v. Filburn's famous statement that "[e]ven if appel-
lee's activity be local and though it may not be regarded as
commerce, it may still, whatever its nature, be reached by Congress
if it exerts a substantial economic effect on interstate commerce."
Wickard v. Filburn, 317 U.S. 111, 125 (1942) (emphasis added),
quoted in Lopez, 519 U.S. at 556. Similarly, the Lopez Court relied
on Heart of Atlanta Motel, 379 U.S. 241 and Katzenbach, 379 U.S.
at 294. See Lopez, 519 U.S. at 557-563. These cases involved the pub-
lic accommodation provisions of the Civil Rights Act of 1964, 78
Stat. 243 (codified as amended at 42 U.S.C. § 2000a (1994)), not an
"economic" regulation but a civil rights statute, which like VAWA
prohibits acts motivated by bias that have a substantial effect on inter-
state commerce.16
Furthermore, the actual basis of the Lopez holding, which Morrison
and Crawford attempt to ignore, undermines their argument as to the
_________________________________________________________________
16 Thus, we follow our sister circuits and hold that Lopez does not nar-
row Congress's Commerce Clause authority solely"to the regulation of
commercial actors, and not private individuals who interfere with com-
mercial activities in interstate commerce. To the contrary, the Court . . .
[has upheld] statutes which penalize behavior substantially affecting
interstate commerce without regard to the actor's commercial or private
status." Cheffer, 55 F.3d at 1520 n.6; see also Knutson, 113 F.3d at 30
(same); United States v. Hicks, 106 F.3d 187, 189 (7th Cir. 1997), cert.
denied, 117 S. Ct. 2425 (1997) (same); Dinwiddie, 76 F.3d at 920-21
(same); Terry, 101 F.3d at 1417 (same); Wilson, 73 F.3d at 684-85
(same). As Chief Judge Posner recently noted, the fact that a law was not
explicitly meant "to increase the gross national product by removing a
barrier to free trade, but rather to protect personal safety and property
rights, is irrelevant [because] . . . Congress can regulate interstate com-
merce for any lawful motive." Soderna, 82 F.3d at 1374 (citing Heart of
Atlanta Motel, 379 U.S. at 256-57). The Supreme Court itself has recog-
nized, "[a]n enterprise surely can have a detrimental influence on inter-
state or foreign commerce without having its own profit-seeking
motives." National Org. for Women, Inc. v. Scheidler, 510 U.S. 249, 258
(1994).
41
importance of "economic activity." The Lopez Court did not strike
down § 922(q) because it regulated non-economic activity. The Court
invalidated § 922(q) because neither Congress nor the Government
convinced the Court that there was a rational basis for concluding that
possession of a gun in a school zone substantially affected interstate
commerce. Lopez 115 S. Ct. at 1631-33. Here, however, there clearly
is a rational basis for concluding that gender-based violence against
women does precisely this.
Even if the regulated activity itself had to have an economic nexus,
VAWA, unlike § 922(q), regulates an activity that is "an essential part
of a larger regulation of economic activity." Lopez, 115 S. Ct. at 1631.
As recounted above, Congress recognized the enormous impact that
violence against women has on women in the workplace, and as such,
VAWA, along with Title VII, can be seen as a part of a larger regula-
tory effort to eliminate gender-based violence as a barrier to job
opportunities. Congress found that "current law provides a civil rights
remedy for gender crimes committed in the workplace, but not for
crimes of violence motivated by gender committed on the street or in
the home." H.R. Conf. Rep. No. 103-711, at 385 (1994), reprinted in
1994 U.S.C.C.A.N. 1839, 1853. VAWA was meant to fill that gap.
Morrison and Crawford's reliance on the fact that VAWA, like
§ 922(q), does not have a jurisdictional restriction is unpersuasive for
similar reasons. Lopez does not require that a statute contain a juris-
dictional limit in order to pass Commerce Clause scrutiny. See Olin
Corp., 107 F.3d at 1510; United States v. Rybar, 103 F.3d 273, 285
(3rd Cir. 1996), cert. denied, 118 S. Ct. 46 (1997); Terry, 101 F.3d
at 1418; Wall, 92 F.3d at 1449 n.11; Wilson, 73 F.3d at 685. "If a
jurisdictional element were critical to a statute's constitutionality, the
Court in Lopez would not have gone on to examine the Government's
proffered rationales for the constitutionality of the gun possession
statute." Terry, 101 F.3d at 1418.
The core teaching of Lopez is simply that Congress must ensure
that legislation enacted pursuant to its Commerce Clause authority
reaches only activities that "substantially affect interstate commerce."
A jurisdictional element or Congressional findings assist a court in
determining whether a regulated activity substantially affects inter-
state commerce. But neither is necessary for constitutional validity.
See Wright, 117 F.3d at 1269 (Congress need not"place a jurisdic-
42
tional element" in a statute or make "legislative findings connecting
the regulated activity to interstate commerce."). Although Congressio-
nal findings are not required, here we do have abundant legislative
findings evidencing that Congress did indeed ensure that the regulated
activity substantially affected interstate commerce. As noted above,
we recently relied on far less detailed Congressional findings to
uphold a statute that did not regulate economic activities and had no
jurisdictional element. Leshuk, 65 F.3d at 1111-12.
Finally, our holding that Congress had a rational basis to conclude
that violence against women has a substantial effect on interstate
commerce does not mean, as Morrison and Crawford contend, that
acting pursuant to the Commerce Clause Congress can reach any
activity, including divorces, child-support, and"diet and exercise hab-
its." This argument ignores the years of hearings on the need for
VAWA and the reams of congressional findings made in support of
VAWA. It belittles the seriousness of the national problem that dis-
criminatory violence against women presents. It overlooks VAWA's
explicit deference to State expertise: the statute's express restriction
to gender-motivated violent crimes is defined in part in reference to
state law, and it prohibits jurisdiction over divorce, alimony, and child
custody matters. See 42 U.S.C. § 13981(e)(4).
Most importantly, this argument disregards the ineludible fact that
our role is simply to determine if Congress had a rational basis for
concluding that a regulated activity "substantially affect[s] interstate
commerce." Lopez, 519 U.S. at 560. After four years of hearings and
extensive legislative findings, Congress has adjudged that violence
against women substantially affects interstate commerce. It is "abun-
dantly clear that our job in this case is not to second-guess the legisla-
tive judgment of Congress that" violence against women
"substantially affects interstate commerce, but rather to ensure that
Congress had a rational basis for that conclusion." Bishop, 66 at 577.
In light of Congress' findings, well supported by testimony and data,
we hold that Congress had such a rational basis in enacting VAWA.
We note that it is apparent that Congress took great care to detail
its findings and support its conclusion that VAWA was within its
commerce authority. The breadth of the record itself manifests that
Congress understood its duty to act only within its enumerated powers
in this case, and took that duty seriously. As the Supreme Court
43
explained in Polish Nat'l Alliance v. NLRB, 322 U.S. 643, 650
(1944):
[Whether] the conduct of an enterprise affects commerce
among the States is a matter of practical judgment, not to be
determined by abstract notions. The exercise of this practi-
cal judgment the Constitution entrusts primarily and very
largely to the Congress, subject to the latter's control by the
electorate. Great power was thus given to the Congress: the
power of legislation and thereby the power of passing judg-
ment upon the needs of a complex society. Strictly confined
though far-reaching power was given to this Court: that of
determining whether the Congress has exceeded limits
allowable in reason for the judgment which it has exercised.
See also Lopez, 519 U.S. at 578 (Kennedy, J., concurring) (It is Con-
gress' and the President's "obligation to preserve and protect the Con-
stitution in maintaining the federal balance . . . in the first and primary
instance."). In following our "[s]trictly confined" duty in this case, we
must conclude that Congress has in no way "exceeded limits allow-
able in reason for the judgment which it has exercised." Polish Nat'l
Alliance, 322 U.S. at 650. Congress acted within its Commerce
Clause authority in enacting VAWA.17
IV.
To summarize, we hold that Brzonkala's complaint states a claim
under Title IX against Virginia Tech, and under the Violence Against
Women Act against Morrison and Crawford. Further, we hold that the
Commerce Clause provides Congress with authority to enact the Vio-
lence Against Women Act. Accordingly, the judgments of the district
court dismissing both the Title IX and Violence Against Women Act
claims are reversed and the case is remanded for further proceedings.
_________________________________________________________________
17 Once a court has decided that a Congressional act is within the com-
merce power the only remaining question is whether"the means chosen
by" Congress are "reasonably adapted to the end permitted by the Consti-
tution." Hodel, 452 U.S. at 276 (quoting Heart of Atlanta Motel, 379
U.S. at 262). No party contests this point, and we hold that VAWA's
civil remedy is well within appropriate congressional means.
44
No. 96-1814 - REVERSED AND REMANDED
No. 96-2316 - REVERSED AND REMANDED
LUTTIG, Circuit Judge, dissenting:
Fully aware of the importance of the matter before us today, I
would unhesitatingly affirm the judgment below on the essential rea-
soning set forth by the district court. Brzonkala v. Virginia Polytech-
nic & State University, 935 F. Supp. 779 (W.D. Va. 1996). Judge
Kiser's lengthy opinion is an excellent legal analysis of the constitu-
tionality of the Violence Against Women Act under Article I, § 8, cl.3
of the Constitution. That analysis is thorough, scholarly, and, most
important, abidingly faithful to the Supreme Court's decision in
United States v. Lopez, 514 U.S. 549 (1995). The district court's anal-
ysis describes in detail the Supreme Court's new analytical frame-
work for addressing Commerce Clause challenges, and meticulously
and dispassionately applies the principles and reasoning from Lopez
in addressing the challenge to the legislation at issue in this case.
Compare Hoffman v. Hunt, 1997 WL 578787 (4th Cir. 1997) (same).
The district court's careful opinion brings into sharp relief not only
the analytical superficiality of the majority's opinion, but also the
majority's manifest misreading of the Supreme Court's historically
significant Lopez decision and, therefore, its fundamental misunder-
standing of the import of that decision and its implications for the
Violence Against Women Act.
Among the more profound of its errors, the majority, in complete
disregard of Lopez, does not include even a single sentence -- not
one -- of the "independent evaluation" of the effect on interstate com-
merce of the Violence Against Women Act required under that deci-
sion. See Lopez, 514 U.S. at 562. Ignoring entirely the overarching
change in Commerce Clause analysis wrought by Lopez, the majority
merely recites several statements from House and Senate committees
on the general problem of violence against women and the effect of
that violence on the national economy, together with a sentence from
a House Report stating that violence against women substantially
affects interstate commerce (incidentally, never mentioning that the
Senate, as opposed to the House, did not conclude that such violence
45
substantially affects interstate commerce) and then simply states,
without more, that the Act is constitutional.
The majority thus reaches its conclusion that the Violence Against
Women Act is a constitutional exercise of the Commerce Clause
power through application of a principle of absolute judicial defer-
ence to a committee finding -- precisely what the Supreme Court
held in Lopez was no longer appropriate in the review of Commerce
Clause challenges to federally enacted statutes, even for findings by
the full Congress. See, e.g., Lopez, 514 U.S. at 557 n.2 ("[S]imply
because Congress may conclude that a particular activity substantially
affects interstate commerce does not necessarily make it so.
[W]hether particular operations affect interstate commerce suffi-
ciently to come under the constitutional power of Congress to regulate
them is ultimately a judicial rather than a legislative question, and can
be settled finally only by this Court." (citations and internal quotation
marks omitted)).
The majority's elevation of a committee's finding not merely to
preeminence among the constitutionally relevant considerations, but
to a position as dispositive of the constitutional inquiry, is not at all
inadvertent; to the contrary, it is quite intentional. In fact, trumpeting
a misplaced reliance on United States v. Leshuk, 65 F.3d 1105 (4th
Cir. 1995), the majority is at pains throughout its opinion to empha-
size that it rests its conclusion entirely on the"finding" in the House
Report, which it ascribes to the Congress as a whole and then accepts
wholly and uncritically:
After four years of hearings and consideration of volumi-
nous testimonial, statistical, and documentary evidence,
Congress made an unequivocal and persuasive finding that
violence against women substantially affects interstate com-
merce. . . . Accordingly, whatever one's doubts as to
whether VAWA represents a good policy decision, we can
only conclude that Congress' findings are grounded in a
rational basis.
Ante at 33-34 (emphasis added; citation omitted); see also id. at 30
(describing Leshuk as "rejecting a Lopez challenge to the ``Compre-
hensive Drug Abuse Prevention and Control Act' and beginning and
46
ending our analysis by relying totally upon Congress's ``detailed find-
ings' on the interstate commerce effects" (emphasis added)); id. at 34
(again comparing majority's conclusion with that in Leshuk and char-
acterizing Leshuk as a case where, "[w]ithout further ado we ``relied
upon the[ ] [congressional] findings' to hold the Commerce Clause
authorized Congress to enact this statute" (quoting Leshuk, 65 F.3d at
1112; emphasis added)); id. at 43 ("Although Congressional findings
are not required, here we do have abundant legislative findings evi-
dencing that Congress did indeed ensure that the regulated activity
substantially affected interstate commerce. As noted above, we relied
exclusively on far less detailed Congressional findings to uphold a
statute that did not regulate economic activity and had no jurisdic-
tional element." (Emphasis added; citation to Leshuk omitted)).
The majority's wholesale deference to a committee finding would
at least be understandable if that committee had made extensive find-
ings deserving of deference. However, the majority ultimately sustains
the constitutionality of the Act literally on the basis of a single sen-
tence appearing in that committee report, which sentence is, itself,
entirely conclusory.
After properly concluding that it cannot rely upon Congress' Sec-
tion 5 findings in support of its Commerce Clause analysis,1 and after
_________________________________________________________________
1 For its unexplained conclusion that violence against women has a
substantial effect on interstate commerce and therefore is a valid exercise
of Congress' Commerce Clause power, the majority properly does not
rely on the findings Congress made to justify VAWA under Section 5 of
the Fourteenth Amendment. Thus, the majority distinguishes between the
findings made in support of Congress' exercise of its Section 5 power
and the findings made in support of Congress' exercise of its Commerce
Clause power, as does the Department of Justice. Compare Br. of
Intervenor-Appellant United States at 4, 6-8 (detailing congressional
findings on the "Impact on the National Economy and Interstate Com-
merce"), with id. at 9-16 (detailing congressional findings on the "Bias
in State Judicial Systems"); compare also id . at 29-37 (arguing in reli-
ance upon findings recited at 4-8 that VAWA is a valid exercise of Con-
gress' power under the Commerce Clause), with id . at 21-29 (arguing in
reliance upon findings recited at 9-16 that VAWA is a valid exercise of
Congress' power under Section 5). It may be, as the Department of Jus-
47
recognizing that the bulk of its recited findings bear only on "the
enormity of the problem" of domestic violence against women, not on
that problem's effect on interstate commerce, see ante at 30-34, the
majority is left with but a single conclusory sentence in the Report of
one House to which to defer in sustaining VAWA under Article I. See
ante at 32 ("crimes of violence motivated by gender have a substantial
adverse effect on interstate commerce . . . ."). 2 This lone conclusory
sentence constitutes the entirety of the "mountain of evidence," ante
at 27, the "reams," id. at 43, the"voluminous," id. at 29, the "copi-
ous," id. at 30 n.9, the "detailed," id. at 30, the "unequivocal,"id. at
34, the "abundant," id. at 43, and the"persuasive," id. at 35, congres-
sional findings upon which the majority upholds VAWA. This one
sentence is the basis upon which the majority concludes that "it is
apparent that Congress took great care to detail its findings and sup-
port its conclusions that VAWA was within its commerce authority."
Id. at 43.
_________________________________________________________________
tice contends, that congressional findings that the civil rights of women
are being violated bear on the question of whether a statute impermiss-
ibly encroaches on traditional state functions. See Br. for Intervenor-
Appellant United States at 32 ("An exercise of Commerce Clause power
cannot plausibly be invalidated on the basis of federalism concerns
where the declared purpose of the statute, supported by extensive legisla-
tive evidence, is to secure the civil rights the states have failed to pro-
tect." (emphasis added)). But, as the Department and the majority both
recognize, it would be untenable to hold that such findings even bear on,
much less largely resolve, the threshold question of whether violence
against women has an effect on interstate commerce at all.
2 The majority cites to only one other sentence from the four years of
congressional debate in support of its holding, and that sentence from a
Senate committee report does not even purport to find that gender-
motivated violence substantially affects interstate commerce (although
the majority seems to presume that it does). See id. at 32-33 ("Gender-
based crimes and the fear of gender-based crimes restricts movement,
reduces employment opportunities, increases health expenditures, and
reduces consumer spending, all of which affect interstate commerce and
the national economy."). The sentence speaks more to the effects of such
violence on the economy in general than on interstate commerce, in any
event.
48
It should go without saying that this one sentence is functionally
no different from a complete absence of express congressional find-
ings. See Lopez, 514 U.S. at 562. This single conclusory sentence no
better "enables [the court] to evaluate the legislative judgment that the
activity in question substantially affect[s] interstate commerce," id. at
563, than would have no statement at all. Rather than the "paradigm
of judicial restraint" as the majority asserts, ante at 28 (quoting FCC
v. Beach Communications, Inc., 508 U.S. 307, 314 (1993)), deference
to this kind of "finding" is judicial activism merely parading as
restraint.
Related to its reflexive acceptance of the committee's conclusory
finding as to the effect on interstate commerce of domestic violence
against women, the majority, of necessity, includes scarcely even a
reference to the majority opinion in Lopez in reaching its conclusion
that the Violence Against Women Act is constitutional. Only after
concluding that the Act is constitutional does the majority perfuncto-
rily address the bulk of the Court's most significant pronouncements
on the Commerce Clause. See, e.g., ante at 35 (noting, after holding
Act constitutional on the basis of the Committee findings alone, that
"nothing in Lopez requires a different result"). Thus, the majority
upholds the Violence Against Women Act without so much as a men-
tion of the economic or noneconomic character of the legislation --
much less the quite different constitutional analysis required depend-
ing upon which type of statute is at issue;3 the presence or absence of
a jurisdictional element that would ensure case-by-case that the neces-
sary effect on interstate commerce exists; or the consequences of its
holding for the "first principles" of divided powers, which the
Supreme Court believed so important in the constitutional equation
_________________________________________________________________
3 So far afield is the majority's reasoning from that of the Supreme
Court in Lopez, that the majority all but holds that the character of legis-
lation as "economic" or "noneconomic" is irrelevant under Lopez. See
ante at 42 ("The Lopez Court did not strike down § 922(q) because it reg-
ulated non-economic activity. The Court invalidated§ 922(q) because
neither Congress nor the Government convinced the Court that there was
a rational basis for concluding that possession of a gun in a school zone
substantially affected interstate commerce." (citation omitted)); id. at 42
("Even if the regulated activity itself had to have an economic nexus
. . .").
49
that it began and ended its opinion with a full discussion of them,
compare Br. for Intervenor-Appellant United States at 19 (noting that
principles of federalism were of "a critical concern to the Court in
Lopez"). Consistent with the majority's view of Lopez as a fact-
specific case of little significance, these pivotal considerations are,
and plainly so, consigned to afterthought.
The majority opinion is, it should come as no surprise, categori-
cally inconsistent with our court's recent carefully written and ana-
lyzed opinion in Hoffman v. Hunt, 1997 WL 578787, *11, wherein we
upheld the Freedom of Access to Clinic Entrances Act of 1994
("FACE"). Indeed, the majority must resort to mischaracterization of
that opinion in order to avoid the evident inconsistency with its own
opinion. The majority states, in transparent legerdemain, that the court
in Hoffman reviewed the congressional reports "to uphold" the Free-
dom of Access to Clinics Act. Ante at 34; see also id. at 34 (stating
that "similarly" to Leshuk, Hoffman relied wholly on Congress' find-
ings). However, in Hoffman we did not review the congressional
reports to uphold the Act; we merely reviewed them, together with the
other factors from Lopez, particularly the close and direct connection
of the regulated conduct with an economic activity, in upholding the
Act. The difference is obvious. Indeed, this is precisely the signifi-
cance of Lopez. After Lopez, it is clear that the courts are to undertake
an independent review of the relationship between the regulated activ-
ity and interstate commerce, not simply to rubber-stamp Congress'
findings as to that relationship, as the majority does.
Similarly, the majority states that "[b]ecause Congress had made
these persuasive findings we concluded [in Hoffman] that we did not
need to ``pile inference upon inference' to find a substantial effect on
interstate commerce." Ante at 35. Again, however, we did not reason
in this way at all. We did not say that we did not need to pile infer-
ence upon inference because Congress had made the findings; rather,
and quite differently, we said that the piling of inferences was unnec-
essary because our own independent determination had revealed that
there existed a real and substantial connection between the conduct
regulated under FACE and interstate commerce. Again, the difference
between Hoffman and the majority opinion, and, more importantly,
between the majority opinion and Lopez, is obvious.
50
Finally, in powerful irony, at the same time that the majority
decides the Commerce Clause challenge to VAWA with barely a men-
tion of the analysis carefully laid out by the Supreme Court in Lopez,
the majority does not include even a single sentence of discussion of
the district court's exhaustive analysis that it summarily reverses --
an analysis which actually is, in contrast to the majority's opinion,
scrupulously faithful not only to Supreme Court precedent, but to our
Circuit precedent as well.
In short, the majority opinion reads, as intended, as if Lopez were
never decided, holding for our Circuit, explicitly on the authority of
Judge Kravitch's opinion in United States v. Wright, 117 F.3d 1265,
1269 (11th Cir. 1997), and implicitly on the reasoning advocated by
the dissenting Justices in Lopez, that "``Lopez did not alter our
approach to determining whether a particular statute falls within the
scope of Congress's Commerce Clause authority.'" Ante at 36.
Indeed, as the majority tacitly acknowledges, with understandable
reluctance, it views Lopez, the most significant Commerce Clause
decision in more than half a century, as an aberration, a case limited
in its reach to section 922(q), of Title 18, of the United States Code.
See ante at 36 & n.13 ("[I]t is unsurprising that ``courts have resisted
urgings to extend Lopez beyond § 922(q).'" (citations omitted)).
I suspect that, even in its discretion, the Supreme Court would not
allow today's decision to stand, not only because of the decision's
bold intransigence in the face of the Court's recent decision, but also
because the Commerce Clause challenge to the instant statute pris-
tinely presents the Court with the logical next case in its considered
revisitation of the Commerce Clause. Because today's decision
wholly ignores the Supreme Court's analysis in Lopez and conflicts
directly with our recent post-Lopez decision in Hoffman v. Hunt, how-
ever, I have every hope that our own court will obviate the need for
such further review.
I respectfully dissent.
51