Litman v. George Mason University

PUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
ANNETTE GRECO LITMAN,
Plaintiff-Appellee,
UNITED STATES OF AMERICA,
Intervenor-Appellee,
v.
GEORGE MASON UNIVERSITY,
Defendant-Appellant,
and
EUGENE M. NORRIS; GEOFFREY
ORSAK; GIRARD MULHERIN,
No. 98-1742
Defendants.
AMERICAN CIVIL LIBERTIES UNION OF
VIRGINIA; TRIAL LAWYERS FOR PUBLIC
JUSTICE; AMERICAN ASSOCIATION OF
UNIVERSITY WOMEN; AMERICAN
ASSOCIATION OF UNIVERSITY WOMEN
LEGAL ADVOCACY FUND; AMERICAN
CIVIL LIBERTIES UNION WOMEN'S
RIGHTS PROJECT; NATIONAL WOMEN'S
LAW CENTER,
Amici Curiae.
Appeal from the United States District Court
for the Eastern District of Virginia, at Alexandria.
James C. Cacheris, Senior District Judge.
(CA-97-1755-A)
Argued: May 5, 1999
Decided: July 28, 1999
Before NIEMEYER, MICHAEL, and TRAXLER, Circuit Judges.
Affirmed by published opinion. Judge Niemeyer wrote the opinion,
in which Judge Michael and Judge Traxler joined.
_________________________________________________________________
COUNSEL
ARGUED: William Eugene Thro, Assistant Attorney General,
OFFICE OF THE ATTORNEY GENERAL, Richmond, Virginia, for
Appellant. Alan Banov, Washington, D.C.; Seth Michael Galanter,
UNITED STATES DEPARTMENT OF JUSTICE, Washington,
D.C., for Appellees. ON BRIEF: Mark L. Earley, Attorney General
of Virginia, Ronald C. Forehand, Senior Assistant Attorney General,
OFFICE OF THE ATTORNEY GENERAL, Richmond, Virginia, for
Appellant. Bill Lann Lee, Acting Assistant Attorney General, Jessica
Dunsay Silver, UNITED STATES DEPARTMENT OF JUSTICE,
Washington, D.C., for Appellee United States. Mary Bauer, AMERI-
CAN CIVIL LIBERTIES UNION OF VIRGINIA FOUNDATION,
Richmond, Virginia; Sarah Posner, TRIAL LAWYERS FOR PUB-
LIC JUSTICE, P.C., Washington, D.C., for Amici Curiae.
_________________________________________________________________
OPINION
NIEMEYER, Circuit Judge:
Annette Litman, a student at George Mason University in Fairfax,
Virginia, filed this action against the University and some of its
employees, alleging sex discrimination in violation of Title IX of the
Education Amendments of 1972, 20 U.S.C. § 1681 et seq. To justify
her suit against a state instrumentality in federal court, Litman relied
on 42 U.S.C. § 2000d-7(a)(1), which provides that "[a] State shall not
be immune under the Eleventh Amendment of the Constitution of the
United States from suit in Federal court for a violation of . . . title IX
of the Education Amendments of 1972."
George Mason University claims with respect to § 2000d-7(a)(1)
that (1) Congress lacked the requisite constitutional authority to abro-
gate its Eleventh Amendment immunity and (2) the provision does
not unequivocally effect a voluntary waiver of its Eleventh Amend-
2
ment immunity. While the district court agreed with the University
that Title IX exceeded Congress' remedial authority under § 5 of the
Fourteenth Amendment to abrogate its Eleventh Amendment immu-
nity, the district court upheld 42 U.S.C. § 2000d-7(a)(1) under the
Spending Clause of Article I of the Constitution as a lawful condition
of the University's voluntary acceptance of federal education funding
under Title IX. For the reasons that follow, we affirm.
I
George Mason University ("GMU") is a state-created university
"subject at all times to the control of the [Virginia] General Assem-
bly." Va. Code Ann. § 23-91.24. Moreover, the parties agree that
GMU is a recipient of federal education funding within the meaning
of Title IX, 20 U.S.C. § 1681(a). See 20 U.S.C. § 1687.
In her complaint, which supplies us with the facts in this case at
the motion to dismiss stage, Annette Litman alleges that in 1995, as
a student in GMU's "extended studies" program, she enrolled in a
computer science course with Professor Eugene Norris, for whom she
also worked as a research assistant. Over the course of the fall semes-
ter, Norris became infatuated with Litman, telling her routinely that
he loved her and asking questions about her marriage and specifically
about her sex life. Norris also stalked Litman, waiting for her after her
speech class, on one occasion, to tell her that he"missed her" and
that, despite her efforts to avoid him, he "had his ways" of locating
her. After Litman terminated her research position with Norris, she
received an e-mail from him stating, "Don't marry someone you can
live with, Marry someone you can't live without."
In February 1996, Litman filed a sexual harassment complaint
against Norris with GMU's Equity Office, requesting that Norris be
reprimanded for his conduct and ordered to stay away from her. The
Equity Office ordered Norris to avoid contact with Litman, but it
refused to investigate the complaint further, characterizing Litman's
allegations of sexual harassment as a "fishing expedition" grounded
in conjecture. Finding this response inadequate, Litman sought the
intervention of GMU's president. She also circulated a petition urging
GMU to investigate Norris' alleged wrongdoings, but GMU failed to
undertake the requested investigation.
3
Unable to locate a professor to supervise her senior research proj-
ect, Litman maintained that GMU's faculty refused to interact with
her once it became known that she had filed a sexual harassment com-
plaint against one of its members. She thereafter sent suggestive and
hostile e-mail messages to certain faculty members, resulting in two
professors instituting sexual harassment charges of their own against
her pursuant to GMU's Student Judicial Code. Following a trial
before GMU's University Judicial Board in May 1996, the Board
found Litman guilty of these charges and both imposed academic
sanctions against her and expelled her from GMU. Litman asserts that
the Board's process was so irregular that GMU effectively precluded
her from preparing an adequate defense. Litman's complaint against
Norris was tried in October 1996 and resulted in a finding that Norris
had not violated GMU's sexual harassment policy.
In October 1997, Litman filed this action alleging that GMU and
some of its employees discriminated and retaliated against her on the
basis of her sex in violation of Title IX of the Education Amendments
Act of 1972, 20 U.S.C. § 1681 et seq. Invoking Eleventh Amendment
immunity, GMU moved to dismiss the complaint for lack of jurisdic-
tion. Litman responded, maintaining that Congress, through its enact-
ment of the Civil Rights Remedies Equalization Act, 42 U.S.C.
§ 2000d-7(a)(1), abrogated GMU's Eleventh Amendment immunity,
or, alternatively, that GMU waived its immunity as a condition to
receiving federal funding under Title IX. When GMU contended that
Congress' effort to abrogate GMU's Eleventh Amendment immunity
was unconstitutional, the United States intervened, pursuant to 28
U.S.C. § 2403(a), to defend the constitutionality of 42 U.S.C.
§ 2000d-7(a)(1).
The district court denied GMU's motion to dismiss. Relying on
City of Boerne v. Flores, 521 U.S. 507 (1997), the court determined
that the protections afforded by Title IX differed from those afforded
by the Equal Protection Clause of the Fourteenth Amendment in
important ways. It concluded first that Title IX regulated both private
and state-sponsored conduct, whereas the Equal Protection Clause, by
its terms, regulated only state action. Second, it concluded that Title
IX reached beyond the Fourteenth Amendment's prohibitions against
gender discrimination by imposing liability on funding recipients for
"non-intentional (i.e. disparate impact) discrimination." Litman v.
4
George Mason Univ., 5 F. Supp.2d 366, 374 (E.D. Va. 1998). The
district court accordingly concluded that § 5 of the Fourteenth
Amendment did not provide Congress with the authority to abrogate
GMU's Eleventh Amendment immunity. The court went on to hold,
however, that GMU waived its Eleventh Amendment immunity by
accepting Title IX funding, which was conditioned on the unambigu-
ous waiver of immunity codified in 42 U.S.C. § 2000d-7(a)(1). The
court reasoned that while Congress does not have"the authority pur-
suant to its Article I powers to simply abrogate the States' Eleventh
Amendment immunity, Congress does have the power to require the
States to waive their immunity pursuant to a valid exercise of its
spending power." Id. at 375. Relying on language in South Dakota v.
Dole, 483 U.S. 203 (1987), and New York v. United States, 505 U.S.
144 (1992), the district court also emphasized that the Eleventh
Amendment presented no "independent constitutional bar" to Con-
gress' employing its spending power in this manner. Id. at 376 (inter-
nal quotation marks omitted).
From the district court's denial of GMU's motion asserting Elev-
enth Amendment immunity, GMU noticed this interlocutory appeal.
See Puerto Rico Aqueduct & Sewer Auth. v. Metcalf & Eddy, Inc.,
506 U.S. 139, 147 (1993) (holding that "States and state entities that
claim to be ``arms of the State' may take advantage of the collateral
order doctrine to appeal a district court order denying a claim of Elev-
enth Amendment immunity").
II
On appeal, GMU contends that notwithstanding the provisions of
the Civil Rights Remedies Equalization Act, 42 U.S.C. § 2000d-
7(a)(1), which amended Title IX to make explicit that "[a] State shall
not be immune under the Eleventh Amendment of the Constitution of
the United States from suit in Federal court for a violation of . . . title
IX of the Education Amendments of 1972," it may not be sued in fed-
eral court. It argues that in enacting § 2000d-7(a)(1), Congress lacked
the power to abrogate Eleventh Amendment immunity through § 5 of
the Fourteenth Amendment and also that GMU did not consent to a
waiver because "there is nothing in Title IX or in Congress' attempt
to abrogate the Eleventh Amendment which states that waiver of the
Eleventh Amendment is a condition of receiving federal funds."
5
Before determining whether Congress' effort to abrogate GMU's
Eleventh Amendment immunity is justified by § 5 of the Fourteenth
Amendment, we first consider whether GMU consented to waive its
Eleventh Amendment immunity as a condition of receiving federal
education funds.
The Eleventh Amendment provides in pertinent part that "[t]he
judicial power of the United States shall not be construed to extend
to any suit in law or equity, commenced or prosecuted against one of
the United States by Citizens of another State." It is well established
that this amendment, despite its express terms, also precludes citizens
from bringing suits in federal court against their own states. See Hans
v. Louisiana, 134 U.S. 1 (1890); see also Alden v. Maine, No. 98-436,
1999 WL 412617, at *15 (U.S. June 23, 1999) (emphasizing that the
Eleventh Amendment confirms rather than establishes a state's
sovereign immunity as a constitutional principle and that its sovereign
immunity is not limited by the text of the Eleventh Amendment).
By limiting the federal judicial power over the states, the Eleventh
Amendment preserves a federal balance and confirms the constitu-
tional design in which each state remains a sovereign entity generally
immune from suit. See Seminole Tribe of Florida v. Florida, 517 U.S.
44, 58, 72 (1996); see also Alden, 1999 WL 412617, at *28 (stating
that "[t]he principle of sovereign immunity preserved by constitu-
tional design thus accords the States the respect owed them as mem-
bers of the federation" (internal quotation marks and citation
omitted)). Inherent in this federal structure is the mutual, reciprocat-
ing respect for the state and federal sovereigns, and forcing one sover-
eign to appear against its will in the courts of another violates this
respect. See Seminole Tribe, 517 U.S. at 54; see also Alden, 1999 WL
412617, at *7 (stating that because the "States retain a ``residuary and
inviolable sovereignty,' [t]hey are not relegated to the role of mere
provinces or political corporations, but retain the dignity, though not
the full authority of sovereignty" (quoting The Federalist No. 39)).
Accordingly,
[t]he Eleventh Amendment does not exist solely in order to
prevent federal-court judgments that must be paid out of a
State's treasury; it also serves to avoid the indignity of sub-
6
jecting a State to the coercive process of judicial tribunals
at the instance of private parties.
Seminole Tribe, 517 U.S. at 58 (internal quotation marks, brackets,
and citations omitted).
The immunity guaranteed by the Eleventh Amendment, however,
has well-established exceptions also inherent in the federal structure.
First, Congress can abrogate the immunity without state consent if it
acts pursuant to a valid exercise of constitutional power sufficient to
abrogate the immunity and it unequivocally expresses its intent to do
so. See Seminole Tribe, 517 U.S. at 55. Because the Fourteenth
Amendment was adopted well after both the Eleventh Amendment
and the ratification of the Constitution, and was designed to "ex-
pand[ ] federal power at the expense of state autonomy," the power
granted to Congress by § 5 of the Fourteenth Amendment is recog-
nized to "intrude upon the province of the Eleventh Amendment." Id.
at 59. Accordingly, Congress may act under the authority of § 5 of the
Fourteenth Amendment to abrogate a state's Eleventh Amendment
immunity. See College Savings Bank v. Florida Prepaid Postsecon-
dary Educ. Expense Bd., No. 98-149, 1999 WL 412639, at *3 (U.S.
June 23, 1999) (citing Fitzpatrick v. Bitzer, 427 U.S. 445 (1976)).
In addition, the Eleventh Amendment does not preclude the federal
government from bringing suit against states in federal court to ensure
compliance with federal law. See Seminole Tribe , 517 U.S. at 71 n.14;
United States v. Texas, 143 U.S. 621, 644-45 (1892). Nor does the
Eleventh Amendment preclude a private citizen from suing a state
officer in federal court "to ensure that the officer's conduct is in com-
pliance with federal law." Seminole Tribe, 517 U.S. at 71 n.14 (citing
Ex Parte Young, 209 U.S. 123 (1908)).
Finally, a state may waive its Eleventh Amendment immunity by
consenting to be sued in federal court. See College Savings Bank,
1999 WL 412639, at *3; Idaho v. Coeur d'Alene Tribe of Idaho, 521
U.S. 261, 267 (1997); Seminole Tribe, 517 U.S. at 63 (acknowledging
the "unremarkable . . . proposition that the States may waive their
sovereign immunity" (citations omitted)); Atascadero State Hosp. v.
Scanlon, 473 U.S. 234, 238 (1985). Permitting such waivers reflects
the fact that sovereign immunity is an element of state sovereignty,
7
not a categorical limitation on the federal judicial power. See Coeur
d'Alene Tribe of Idaho, 521 U.S. at 267 (stating that, because "a State
can waive its Eleventh Amendment protection and allow a federal
court to hear and decide a case commenced or prosecuted against it,"
the Eleventh Amendment "enacts a sovereign immunity from suit,
rather than a nonwaivable limit on the Federal Judiciary's subject-
matter jurisdiction" (emphasis added)); see also Erwin Chemerinsky,
Federal Jurisdiction 406 (2d ed. 1994) (linking the Eleventh Amend-
ment with principles of sovereign immunity and observing that
"[t]raditionally, sovereign immunity could be waived and that princi-
ple has carried over to Eleventh Amendment jurisprudence").
A state may waive its immunity in two ways. See Booth v.
Maryland, 112 F.3d 139, 145 (4th Cir. 1997). It may "directly and
affirmatively waive its Eleventh Amendment immunity in a state stat-
ute or constitutional provision, as long as the provision explicitly
``specif[ies] the state's intention to subject itself to suit in federal
court.'" Id. (quoting Atascadero State Hosp., 473 U.S. at 241 (brack-
ets in original)). Alternatively, it may "waive its immunity by volun-
tarily participating in federal spending programs when Congress
expresses ``a clear intent to condition participation in the programs . . .
on a State's consent to waive its constitutional immunity.'" Id. (quot-
ing Atascadero State Hosp., 473 U.S. at 247 (ellipses in original)).
But because of the Eleventh Amendment's vital role in preserving
the federal balance, determinations of whether a State has waived its
immunity are subjected to "stringent," exacting standards. College
Savings Bank, 1999 WL 412639, at *7 (quoting Atascadero State
Hosp., 473 U.S. at 241). Thus, a court may not find a waiver absent
an "unequivocal indication that the State intends to consent to federal
jurisdiction that otherwise would be barred by the Eleventh Amend-
ment." Atascadero State Hosp., 473 U.S. at 238 n.1; see also
Pennhurst State School v. Halderman ("Pennhurst I"), 451 U.S. 1, 17
(1981) (citations omitted); Edelman v. Jordan , 415 U.S. 651, 673
(1974). "The whole point of requiring a ``clear declaration' by the
State of its waiver is to be certain that the State in fact consents to
suit." College Savings Bank, 1999 WL 412639, at *9. Accordingly,
a State cannot be deemed to have waived its Eleventh Amendment
immunity constructively even by engaging in activities after Congress
has "made clear that such activity would subject[the State] to suit [in
8
federal court]." Id. at *4, *9 (overruling Parden v. Terminal R. Co.
of Ala. Docks Dep't, 377 U.S. 184 (1964)). Similarly, the "mere
receipt of federal funds cannot establish that a State has consented to
suit in federal court." Atascadero State Hosp., 473 U.S. at 246-47(citations omitted).
Litman contends in this case that GMU, by accepting federal edu-
cation funds under Title IX, has, as a condition of receiving those
funds, unambiguously waived its Eleventh Amendment immunity.
The district court agreed. GMU, on the other hand, contends that
while 42 U.S.C. § 2000d-7(a)(1) indicates, albeit unconstitutionally,
that it is subject to suit in federal court, "there is nothing in the text
that even remotely suggests that Virginia's public universities must
waive the Eleventh Amendment as a condition of receiving federal
funds. Indeed, the statute does not even contain the word ``waiver.'"
It argues that a statute "must say something like``as a condition of
receiving federal funds under this Act, the States agree to waive their
Eleventh Amendment immunity'" and that absent such explicit lan-
guage, the mere receipt of Title IX funds cannot effect a waiver.
To resolve this dispute, we turn to the applicable statutory provi-
sions to determine whether they provide unambiguously that GMU,
by agreeing to receive federal education funds under Title IX, has
waived its Eleventh Amendment immunity.
III
The statutory framework applicable to this case is straightforward.
Title IX provides that in connection with any education program or
activity receiving federal financial assistance, stipulated here to
include GMU's program, "[n]o person . . . shall, on the basis of sex,
be excluded from participation in, be denied the benefits of, or be sub-
jected to discrimination." 20 U.S.C. § 1681(a). The Supreme Court
has held that this provision gives a student an implied right of action
for sexual harassment by a teacher in such a program, provided the
program's officials have "actual notice of, and[have been] deliber-
ately indifferent to, the teacher's misconduct." Gebser v. Lago Vista
Indep. School Dist., 118 S. Ct. 1989, 1993 (1998). Finally, 42 U.S.C.
§ 2000d-7(a)(1) provides that for a violation of the antidiscrimination
9
edict in § 1681(a), a state "shall not be immune under the Eleventh
Amendment . . . from suit in Federal court."
Section 1681(a), which precludes the use of Title IX federal educa-
tion funds for discriminatory purposes, was enacted under the Spend-
ing Clause of the Constitution, U.S. Const. art. I,§ 8, cl. 1 ("The
Congress shall have Power To lay and collect Taxes .. . to . . . pro-
vide for the . . . general Welfare of the United States"). As a federal
spending program, it operates "much in the nature of a contract: in
return for federal funds, the States agree to comply with federally
imposed conditions." Pennhurst I, 451 U.S. at 17; see also Davis v.
Monroe County Bd. of Educ., 119 S. Ct. 1661, 1669 (1999) (charac-
terizing Title IX as Spending Clause legislation); Gebser, 118 S. Ct.
at 1997 (same). In other words, in exercising its spending power, the
federal government "condition[s] an offer of federal funding on a
promise by the recipient not to discriminate, in what amounts essen-
tially to a contract between the Government and the recipient of
funds." Gebser, 118 S. Ct. at 1997 (citations omitted); see also Davis,
119 S. Ct. at 1670. And it also conditions these funds on the recipient
state's consent to be sued in federal court for an alleged breach of the
promise not to discriminate. See 42 U.S.C.§ 2000d-7(a)(1).
Because of the mutuality required in a contractual relationship of
this type -- the federal grant in exchange for state agreement to
attached conditions -- the legitimacy of the attached conditions rests
"on whether the State voluntarily and knowingly accepts the terms of
the ``contract.'" Pennhurst I, 451 U.S. at 17 (citations omitted). Thus,
Spending Clause legislation, in contrast to other Article I legislation
or § 5 legislation, presents a state with a choice: the state can either
comply with certain congressionally mandated conditions in exchange
for federal funds or not comply and decline the funds. Similarly,
"Congress has no obligation to use its Spending Clause power to dis-
burse funds to the States; such funds are gifts." College Savings Bank,
1999 WL 412639, at *12. As the Supreme Court has observed, the
attachment of conditions to grants made under the Spending Clause
is a "permissible method of encouraging a State to conform to federal
policy choices." New York v. United States , 505 U.S. 144, 168 (1992).
The Court explained,
If a State's citizens view federal policy as sufficiently con-
trary to local interests, they may elect to decline a federal
10
grant. If state residents would prefer their government to
devote its attention and resources to problems other than
those deemed important by Congress, they may choose to
have the Federal Government rather than the State bear the
expense of a federally mandated regulatory program, and
they may continue to supplement that program to the extent
state law is not pre-empted. Where Congress encourages
state regulation rather than compelling it, state governments
remain responsive to the local electorate's preferences; state
officials remain accountable to the people.
Id. As a general proposition, therefore, when Congress acts pursuant
to its spending power, there is no categorical prohibition against its
attaching conditions to grants made to the states. See College Savings
Bank, 1999 WL 412639, at *12; New York, 505 U.S. at 167; South
Dakota v. Dole, 483 U.S. 203, 206 (1987).
This mechanism for exercising power under the Spending Clause,
however, must have limits. Otherwise, Congress "could render aca-
demic the Constitution's other grants and limits of federal authority."
New York, 505 U.S. at 167. Indeed, an unlimited Spending Clause
power could circumvent the entire constitutional structure. As Justice
O'Connor observed,
[i]f the spending power is to be limited only by Congress'
notion of the general welfare, the reality, given the vast
financial resources of the Federal Government, is that the
Spending Clause gives "power to the Congress to tear down
the barriers, to invade the states' jurisdiction, and to become
a parliament of the whole people, subject to no restrictions
save such as are self-imposed."
South Dakota, 483 U.S. at 217 (O'Connor, J., dissenting) (quoting
United States v. Butler, 297 U.S. 1, 78 (1936)).
The Supreme Court has recognized at least five such limitations.
First, the exercise of the spending power must be for the general wel-
fare. See U.S. Const. art. I, § 8, cl. 1; South Dakota, 483 U.S. at 207.
Second, if the grant or expenditure is, when made to the states,
accompanied by conditions, the conditions must be stated "unambigu-
11
ously." South Dakota, 483 U.S. at 207. Third, any conditions imposed
must "bear some relationship to the purpose of the federal spending"
so that a reasonable nexus exists between the two. New York, 505
U.S. at 167; South Dakota, 483 U.S. at 207-08; Massachusetts v.
United States, 435 U.S. 444, 461 (1978) (plurality opinion). Fourth,
the grant or expenditure and the conditions attached to it may not vio-
late any independent constitutional prohibition. See South Dakota,
483 U.S. at 208. And fifth, the financial inducement offered by Con-
gress must not be "so coercive as to pass the point at which pressure
turns into compulsion." Id. at 211 (internal quotation marks and cita-
tions omitted); see also Virginia Dep't of Educ. v. Riley, 106 F.3d
559, 570 (4th Cir. 1997) (en banc) (plurality opinion of Luttig, J.)
(finding coercive Congress' withholding of "the entirety of a substan-
tial federal grant on the ground that the States refuse to fulfill their
federal obligation in some insubstantial respect rather than submit to
the policy dictates of Washington in a matter peculiarly within their
powers as sovereign States").
In the context of Title IX as applicable to the case before us, Con-
gress has attached at least two conditions to GMU's receipt of Title
IX funding: (1) GMU cannot discriminate on the basis of sex, see 20
U.S.C. § 1681(a), and (2) when responding to alleged acts of discrim-
ination, GMU waives its Eleventh Amendment immunity, see 42
U.S.C. § 2000d-7(a)(1). This appeal requires us to determine whether
these conditions, considered together, fall within the limitations
imposed on Congress' Spending Clause power under current Supreme
Court jurisprudence.
GMU does not contend that Title IX funds are not spent for the
general welfare; that the prohibition of discrimination and the accom-
panying waiver of Eleventh Amendment immunity are not reasonably
related to grants of education funds; or that the attachment of condi-
tions to the funding arrangement is coercive. Rather, it maintains that
it did not knowingly waive its Eleventh Amendment immunity
because that condition of waiver was not made unambiguously clear
in the text of § 2000d-7(a)(1). That provision, GMU observes, uses
neither the term "condition" nor the term"waiver." GMU also con-
tends that Congress may not impose a waiver of Eleventh Amend-
ment immunity as a condition of funding: "it is constitutionally
impossible for Congress to require the States to waive the Eleventh
12
Amendment as a condition of receiving federal funds." We address
these two points in order.
A
GMU acknowledges that it voluntarily accepts Title IX funding.
Indeed, it must apply for federal funds. And in connection with any
application, it must assure the Federal Government of its intent to
comply with 20 U.S.C. § 1681(a). Implementing regulations provide
that each recipient of Title IX funding must enter into a contract of
assurance with the Department of Education and thereby manifest its
intent to adhere to the conditions imposed by Title IX. See 34 C.F.R.
§ 106.4(a) (providing, in pertinent part, that"[e]very application for
Federal financial assistance for any education program or activity
shall as condition of its approval contain or be accompanied by an
assurance from the applicant or recipient, satisfactory to the Assistant
Secretary, that each education program or activity operated by the
applicant or recipient and to which this part applies will be operated
in compliance with this part"). Thus, in voluntarily accepting federal
education funds, GMU is unequivocally put on notice of three condi-
tions: (1) that it may not discriminate in its programs on the basis of
sex, see 20 U.S.C. § 1681(a); (2) that if it does discriminate on the
basis of sex, it may be sued by a private individual, see Gebser, 118
S. Ct. at 1996, 1999; and (3) that in any such suit, it may not assert
its Eleventh Amendment immunity, see 42 U.S.C. § 2000d-7(a)(1).
There can be no doubt that GMU is able "to ascertain what is
expected of it" in return for federal education funds. Pennhurst I, 451
U.S. at 17.
The Supreme Court appears to have acquiesced in this same con-
struction, characterizing the waiver language of§ 2000d-7(a)(1) as
unequivocal. In the context of evaluating whether, under § 2000d-
7(a)(1), federal agencies, like private entities, would be subject to
monetary damages for Rehabilitation Act violations, the Court
observed:
By enacting [42 U.S.C. § 2000d-7(a)(1)], Congress sought
to provide the sort of unequivocal waiver that our prece-
dents demanded.
13
* * *
Given the care with which Congress responded to our deci-
sion in Atascadero by crafting an unambiguous waiver of
the States' Eleventh Amendment immunity in [42 U.S.C.
§ 2000d-7(a)(1)], it would be ironic indeed to conclude that
the same provision "unequivocally" establishes a waiver of
the Federal Government's sovereign immunity against mon-
etary damages awards . . . in the remedies provision attached
to the unambiguous waiver of the States' sovereign
immunity.
Lane v. Pena, 518 U.S. 187, 198, 200 (1996) (emphasis added).
Thus, we conclude that Congress succeeded in its effort to codify
a clear, unambiguous, and unequivocal condition of waiver of Elev-
enth Amendment immunity in 42 U.S.C. § 2000d-7(a)(1). In enacting
that section, Congress responded with "care" to "[the Supreme
Court's] decision in Atascadero by crafting an unambiguous waiver
of the state's Eleventh Amendment immunity." Id. at 200; accord
Clark v. California, 123 F.3d 1267, 1271 (9th Cir. 1997) (relying on
42 U.S.C. § 2000d-7(a) in the context of holding that California, by
accepting federal funds under the Rehabilitation Act, waived its Elev-
enth Amendment immunity), cert. denied sub nom. Wilson v.
Armstrong, 118 S. Ct. 2340 (1998). Moreover, any state reading
§ 2000d-7(a)(1) in conjunction with 20 U.S.C.§ 1681(a) would
clearly understand the following consequences of accepting Title IX
funding: (1) the state must comply with Title IX's antidiscrimination
provisions, and (2) it consents to resolve disputes regarding alleged
violations of those provisions in federal court.
In reaching this conclusion, we reject GMU's assertion that a stat-
ute "must say something like ``as a condition of receiving federal
funds under this Act, the States agree to waive their Eleventh Amend-
ment immunity.'" The only difference between GMU's proffered lan-
guage and that employed in § 2000d-7(a)(1) is that the former is cast
in the affirmative (i.e., "the States agree to waive") and the latter in
the negative (i.e., "a State shall not be immune"). But this difference
in phrasing is of no constitutional import. Using negative rather than
affirmative language does not alter the plain meaning of § 2000d-
14
7(a)(1) -- that is, by accepting Title IX funding, a state agrees to
waive its Eleventh Amendment immunity.
B
GMU's second argument, that Congress cannot employ its spend-
ing power in a manner that conditions a state's receipt of funding
upon a waiver of Eleventh Amendment immunity, is also without
merit under current Supreme Court jurisprudence. While the Supreme
Court in South Dakota noted that the spending power "may not be
used to induce the States to engage in activities that would themselves
be unconstitutional," 483 U.S. at 210, such as conditioning a grant of
federal funds "on invidiously discriminatory state action or the inflic-
tion of cruel and unusual punishment," id. , it stated that the range of
permissible conditions extended beyond the original enumerations of
congressional power granted by the Constitution, see id. Thus, while
abrogating Eleventh Amendment immunity would be impossible
unless exercised under the Fourteenth Amendment, see Seminole
Tribe, 517 U.S. at 59, conditioning federal funds on an unambiguous
waiver of a state's Eleventh Amendment immunity is as permissible
as a state's direct waiver of such immunity. See Alden, 1999 WL
412617, at *32 ("Nor, subject to constitutional limitations, does the
Federal Government lack the authority or means to seek the States'
voluntary consent to private suits" (citing South Dakota)); see also
College Savings Bank, 1999 WL 412639, at *12 & n.2 (suggesting
that Congress, in legislating under the Spending Clause, can condition
a waiver of sovereign immunity upon the states' acceptance of a fed-
eral grant). Thus, when a condition under the Spending Clause
includes an unambiguous waiver of Eleventh Amendment immunity,
the condition is constitutionally permissible as long as it rests on the
state's voluntary and knowing acceptance of it. See Atascadero State
Hosp., 473 U.S. at 238-40; Pennhurst I, 451 U.S. at 17.
Accordingly, we conclude that Congress, in enacting 42 U.S.C.
§ 2000d-7(a)(1), permissibly conditioned GMU's receipt of Title IX
funds on an unambiguous waiver of GMU's Eleventh Amendment
immunity, and that, in accepting such funding, GMU has consented
to litigate Litman's suit in federal court.
15
IV
The important role that the Eleventh Amendment plays in our fed-
eral structure demands that we pause to consider the larger implica-
tions of concluding that a state waives its immunity from suit in
federal court by accepting Title IX funding. This inquiry is especially
important given the recent intensity with which the Supreme Court
and this circuit have focused on issues of federalism, separation of
powers, and a limited federal government. See , e.g., Alden v. Maine,
No. 98-436, 1999 WL 412617 (U.S. June 23, 1999); College Savings
Bank v. Florida Prepaid Postsecondary Educ. Expense Bd., No. 98-
149, 1999 WL 412639 (U.S. June 23, 1999); Florida Prepaid Postse-
condary Educ. Expense Bd. v. College Savings Bank , No. 98-531,
1999 WL 412723 (U.S. June 23, 1999); Printz v. United States, 521
U.S. 898 (1997); City of Boerne v. Flores, 521 U.S. 507 (1997);
Seminole Tribe of Florida v. Florida, 517 U.S. 44 (1996); United
States v. Lopez, 514 U.S. 549 (1995); New York v. United States, 505
U.S. 144 (1992); Gregory v. Ashcroft, 501 U.S. 452, 457-59 (1991);
Brzonkala v. Virginia Polytechnic Inst., 169 F.3d 820 (4th Cir. 1999)
(en banc); Brown v. North Carolina Div. of Motor Vehicles, 166 F.3d
698 (4th Cir. 1999); Condon v. Reno, 155 F.3d 453 (4th Cir. 1998),
cert. granted, 119 S. Ct. 1753 (1999); In re Creative Goldsmiths of
Washington, D.C., Inc., 119 F.3d 1140, 1145 (4th Cir. 1997), cert.
denied sub nom. Schlossburg v. Maryland Comptroller of Treasury,
118 S. Ct. 1517 (1998).
These decisions collectively counsel that we not lightly conclude
that principles of federalism and state sovereign immunity permit
Congress to employ its spending power in a manner that ultimately
effects a waiver of a state's Eleventh Amendment immunity. See
generally Lopez, 514 U.S. at 578 (Kennedy, J., concurring) ("[T]he
federal balance is too essential a part of our constitutional structure
and plays too vital a role in securing freedom for us to admit inability
to intervene when one or the other level of Government has tipped the
scales too far"). Specifically, any conclusion we reach today must
respect the Supreme Court's admonition in Seminole Tribe that the
"Eleventh Amendment restricts the judicial power under Article III,
and Article I cannot be used to circumvent limitations placed upon
federal jurisdiction." 517 U.S. at 72-73. Further, we must acknowl-
edge that "[r]ecognizing a congressional power to exact constructive
16
waivers of sovereign immunity through the exercise of Article I pow-
ers would also, as a practical matter, permit Congress to circumvent
the antiabrogation holding of Seminole Tribe." College Savings Bank,
1999 WL 412639, at *11.
We do not intend to question these propositions. However, we do
not read Seminole Tribe and its progeny, including the Supreme
Court's recent Eleventh Amendment decisions, to preclude Congress
from conditioning federal grants on a state's consent to be sued in
federal court to enforce the substantive conditions of the federal
spending program. Indeed, to do so would affront the Court's
acknowledgment in Seminole Tribe of "the unremarkable . . . proposi-
tion that States may waive their sovereign immunity." 517 U.S. at 65.
Furthermore, in New York the Court emphasized that principles of
federalism do not pose an independent constitutional bar to Congress'
powers under the Spending Clause:
By [employing the spending power to attach conditions on
the States' receipt of federal funding], as by any other per-
missible method of encouraging a State to conform to fed-
eral policy choices, the residents of the State retain the
ultimate decision as to whether or not the State will comply.
If a State's citizens view federal policy as sufficiently con-
trary to local interests, they may elect to decline a federal
grant.
New York, 505 U.S. at 168. If the Supreme Court were one day to
adopt a Madisonian construction of the Spending Clause,* perhaps
_________________________________________________________________
*As an original matter, Alexander Hamilton and James Madison
appear to have taken different positions regarding the scope and purposes
of the Spending Clause. Hamilton contended that"[t]he terms ``general
Welfare' [as used in the Spending Clause] were doubtless intended to
signify more than was expressed or imported in those which Preceded;
otherwise numerous exigencies incident to the affairs of a Nation would
have been left without a provision." Alexander Hamilton, Report on
Manufacturers (Dec. 5, 1791), reprinted in 2 The Founders' Constitution
446, 446 (Philip B. Kurland & Ralph Lerner eds., 1987). He reasoned:
The phrase is as comprehensive as any that could have been
used; because it was not fit that the constitutional authority of the
17
Congress would be inhibited from implementing a spending program
that both intruded upon a state's general police powers and condi-
tioned the outlay of funding on a state's waiving its sovereign immu-
_________________________________________________________________
Union to appropriate its revenues shou'd have been restricted
within narrower limits than the "General Welfare" and because
this necessarily embraces a vast variety of particulars, which are
susceptible neither of specification nor of definition.
Id. at 446-47.
Madison, on the other hand, believed that the history underlying the
insertion of the "general Welfare" language into the Spending Clause
proved Hamilton's construction to be error. He contended that the Fram-
ers never "understood [that phrase to] invest Congress with powers not
otherwise bestowed by the constitutional charter." Letter from James
Madison to Andrew Stevenson (Nov. 27, 1830), reprinted in 2 The
Founders' Constitution, supra, 453, 456. Madison grounded his con-
struction of the Spending Clause in principles underlying our federal
order:
[F]or it exceeds the possibility of belief, that the known advo-
cates in the Convention for a jealous grant and cautious defini-
tion of Federal powers should have silently permitted the
introduction of words or phrases in a sense rendering fruitless the
restrictions and definitions elaborated by them.
Consider for a moment the immeasurable difference between the
Constitution limited in its powers to the enumerated objects, and
expounded as it would be by the import claimed for the phraseol-
ogy in question. The difference is equivalent to two Constitu-
tions, of characters essentially contrasted with each other -- the
one possessing powers confined to certain specified cases, the
other extended to all cases whatsoever; for what is the case that
would not be embraced by a general power to raise money, a
power to provide for the general welfare, and a power to pass all
laws necessary and proper to carry these powers into execution;
all such provisions and laws superseding, at the same time, all
local laws and constitutions at variance with them? Can less be
said, with the evidence before us furnished by the journal of the
Convention itself, then that it is impossible that such a Constitu-
tion as the latter would have been recommended to the States by
all the members of that body whose names were subscribed to
the instrument?
18
nity. In deciding this case, however, we are bound by the Court's
existing constructions of the scope of Congress' spending power.
Because we hold that GMU, through its acceptance of Title IX
funding, waived its Eleventh Amendment immunity, we need not
reach the question of whether Congress can constitutionally abrogate
that immunity through § 5 of the Fourteenth Amendment. Accord-
ingly, the judgment of the district court is
AFFIRMED.
_________________________________________________________________
* * *
The Constitution is a limited one, possessing no power not actu-
ally given, and carrying on the face of it a distrust of power
beyond the distrust indicated by the ordinary forms of free Gov-
ernment.
Id. at 455, 457.
In United States v. Butler, 297 U.S. 1 (1936), albeit in dictum, the
Supreme Court appears to have acquiesced in the Hamiltonian position:
While, therefore, the power to tax is not unlimited, its confines
are set in the clause which confers it, and not in those of § 8
which bestow and define the legislative powers of the Congress.
It results that the power of Congress to authorize expenditure of
public moneys for public purposes is not limited by the direct
grants of legislative power found in the Constitution.
Id. at 66. The Court confirmed its adoption of the Hamiltonian view one
year later in Steward Machine Co. v. Davis, 301 U.S. 548, 586-87 (1937)
(Cardozo, J.) (upholding New Deal legislation and observing that "[i]t is
too late today for the argument to be heard with tolerance that in a crisis
so extreme the use of the moneys of the nation to relieve the unemployed
and their dependents is a use for any purpose narrower than the promo-
tion of the general welfare" (citing Butler , 297 U.S. at 65-66)).
19