Pederson v. Louisiana State University

IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 94-30680
BETH PEDERSON; LISA OLLAR; SAMANTHA CLARK, Individually and on
behalf of all others similarly situated,
Plaintiffs-Appellants,
versus
LOUISIANA STATE UNIVERSITY; WILLIAM E. DAVIS, Individually and in
his official capacity as Chancellor of Louisiana State
University; JOE C. DEAN; ELAINE D. ABELL; CLARENCE L. BARNEY;
MILTON C. CHAPMAN; ELENORA A. CAWTHON; DAVID CONROY; CHARLES V.
CUSIMANO; GORDON E. DORE; JANICE M. FOSTER; JIMMY A. LALONDE,
JR.; JOSEPH LESAGE, JR.; ROLFE MCCOLLISTER, JR.; ROGER H. OGDEN;
NICHOLAS SMITH, JR.; JOSEPH L. WAITZ; CHARLES S. WEEMS, III; JOHN
R. WILLIAMS; MILTON J. WOMACK; ALL DEFENDANTS
Defendants-Appellees.
No. 95-30777
BETH PEDERSON; LISA OLLAR; SAMANTHA CLARK, Individually and on
behalf of all others similarly situated
Plaintiffs-Appellants,
CINDY PINEDA; KARLA PINEDA
Intervenor Plaintiffs-Appellants,
versus
LOUISIANA STATE UNIVERSITY; WILLIAM E. DAVIS, Individually and in
his official capacity as Chancellor of Louisiana State
University; JOE C. DEAN; ELAINE D. ABELL; CLARENCE L. BARNEY;
MILTON C. CHAPMAN; ELENORA A. CAWTHON; DAVID CONROY; CHARLES V.
CUSIMANO; GORDON E. DORE; JANICE M. FOSTER; JIMMY A. LALONDE,
JR.; JOSEPH LESAGE, JR.; ROLFE MCCOLLISTER, JR.; ROGER H. OGDEN;
NICHOLAS SMITH, JR.; JOSEPH L. WAITZ; CHARLES S. WEEMS, III; JOHN
R. WILLIAMS; MILTON J. WOMACK; ALL DEFENDANTS
Defendants-Appellees.
No. 96-30310
BETH PEDERSON; LISA OLLAR; SAMANTHA CLARK, Individually and on
behalf of all others similarly situated
Plaintiffs-Appellants,
versus
LOUISIANA STATE UNIVERSITY; WILLIAM E. DAVIS, Individually and in
his official capacity as Chancellor of Louisiana State
University; JOE C. DEAN; ELAINE D. ABELL; CLARENCE L. BARNEY;
MILTON C. CHAPMAN; ELENORA A. CAWTHON; DAVID CONROY; CHARLES V.
CUSIMANO; GORDON E. DORE; JANICE M. FOSTER; JIMMY A. LALONDE,
JR.; JOSEPH LESAGE, JR.; ROLFE MCCOLLISTER, JR.; ROGER H. OGDEN;
NICHOLAS SMITH, JR.; JOSEPH L. WAITZ; CHARLES S. WEEMS, III; JOHN
R. WILLIAMS; MILTON J. WOMACK; ALL DEFENDANTS
Defendants-Appellees.
No. 97-30427
BETH PEDERSON; LISA OLLAR; SAMANTHA CLARK, Individually and on
behalf of all others similarly situated
Plaintiffs-Appellees,
CINDY PINEDA; KARLA PINEDA
Plaintiffs-Appellees,
versus
LOUISIANA STATE UNIVERSITY; WILLIAM E. DAVIS; JOE C. DEAN; ELAINE
D. ABELL; CLARENCE L. BARNEY; MILTON C. CHAPMAN; ELENORA A.
CAWTHON; DAVID CONROY; CHARLES V. CUSIMANO; GORDON E. DORE;
JANICE M. FOSTER; JIMMY A. LALONDE, JR.; JOSEPH LESAGE, JR.;
ROLFE MCCOLLISTER, JR.; ROGER H. OGDEN; NICHOLAS SMITH, JR.;
2
JOSEPH L. WAITZ; CHARLES S. WEEMS, III; JOHN R. WILLIAMS; MILTON
J. WOMACK; ALL DEFENDANTS
Defendants-Appellants.
No. 97-30719
BETH PEDERSON; LISA OLLAR; SAMANTHA CLARK, Individually and on
behalf of all others similarly situated
Plaintiffs-Appellants,
CINDY PINEDA; KARLA PINEDA
Plaintiffs-Appellants-Appellees,
versus
LOUISIANA STATE UNIVERSITY; WILLIAM E. DAVIS, Individually and in
his official capacity as Chancellor of Louisiana State
University; JOE C. DEAN; ELAINE D. ABELL; CLARENCE L. BARNEY;
MILTON C. CHAPMAN; ELENORA A. CAWTHON; DAVID CONROY; CHARLES V.
CUSIMANO; GORDON E. DORE; JANICE M. FOSTER; JIMMY A. LALONDE,
JR.; JOSEPH LESAGE, JR.; ROLFE MCCOLLISTER, JR.; ROGER H. OGDEN;
NICHOLAS SMITH, JR.; JOSEPH L. WAITZ; CHARLES S. WEEMS, III; JOHN
R. WILLIAMS; MILTON J. WOMACK; ALL DEFENDANTS
Defendants-Appellees-Appellants.
Appeals from the United States District Court
for the Middle District of Louisiana
January 27, 2000
Before KING, Chief Judge, and STEWART, Circuit Judge, and LITTLE,
District Judge.*
CARL E. STEWART, Circuit Judge:
We must today determine whether the largest public university
in Louisiana has discriminated against women under Title IX in the
*
District Judge of the Western District of Louisiana,
sitting by designation.
3
provision of facilities and teams for intercollegiate athletic
competition. Before us are eight appeals, which were consolidated
for briefing and argument, concerning allegations of such
discrimination against the instant plaintiffs and a putative class
of female undergraduates at Louisiana State University (“LSU”).
After threading our way through issues relating to class
certification and subject matter jurisdiction, we conclude that LSU
violated Title IX by failing to accommodate effectively the
interests and abilities of certain female students and that its
discrimination against these students was intentional.
I. Procedural & Factual History
On March 23, 1994, three female undergraduate students
attending LSU—Beth Pederson, Lisa Ollar, and Samantha Clark
(“Pederson Plaintiffs”)–filed suit in the United States District
Court for the Middle District of Louisiana, alleging that LSU had
violated and continued to violate Title IX of the Education
Amendments Act of 1972, 20 U.S.C. §§ 1681-1688 (1994) (“Title IX”),
and the Equal Protection Clause of the United States Constitution
by denying them equal opportunity to participate in intercollegiate
athletics, equal opportunity to compete for and to receive athletic
scholarships, and equal access to the benefits and services that
LSU provides to its varsity intercollegiate athletes, and by
discriminating against women in the provision of athletic
scholarships and in the compensation paid coaches.1 The Pederson
1
Pederson, Ollar, and Clark all play soccer. Pederson
enrolled at LSU beginning in the autumn term of 1992. Ollar
enrolled at LSU beginning with the autumn term of 1990. Clark
4
Plaintiffs sought declaratory, injunctive, and monetary relief on
behalf of themselves and all those similarly situated. The
defendants to the action included LSU, Athletic Director Joe Dean
(in his individual and official capacities) (“Dean”), Chancellor
William E. Davis (in his individual and official capacities)
(“Davis”), and the individual members of the LSU Board of
Supervisors (in their official capacities only) (collectively,
“Appellees”).2
Subsequently, plaintiffs Cindy and Karla Pineda (“Pineda
Plaintiffs” and, together with Pederson Plaintiffs, “Appellants”)
sought to intervene in the original action.3 The motion to
intervene was denied, and the Pineda Plaintiffs filed suit on
behalf of themselves and a class of those similarly situated in the
Eastern District of Louisiana on January 3, 1995. Appellees
transferred the Pineda action to the Middle District of Louisiana
enrolled at LSU beginning in the autumn term of 1990 through
December 1994. The district court found that, when LSU
implemented a soccer team in the autumn term of 1995, Pederson
tried out for and made the team but ultimately did not
participate because of financial difficulties and lack of
necessary skill, and Ollar and Clark did not participate because
they had no remaining college eligibility.
2
An exhaustive summary of the facts underlying this case
and a more thorough procedural history may be found at Pederson
v. Louisiana State Univ., 912 F. Supp. 892, 897-902 (M.D. La.
1996). In this opinion, we repeat only those aspects of the case
necessary to our disposition and refer the reader to the district
court’s opinion for a fuller record of the events.
3
The Pineda Plaintiffs play fast-pitch softball. Cindy and
Karla Pineda both enrolled at LSU beginning in the Autumn of
1992. When LSU implemented a softball team at the intramural
level, Karla participated in the league. When LSU implemented a
varsity fast-pitch softball team for the 1996-97 season, Cindy
tried out for and made the team as a scholarship player.
5
and moved to consolidate the Pineda action with the Pederson
action. The district court granted the motion, and Appellants
filed an amended complaint merging the actions.
In the course of the litigation, the district court denied
Appellants’ motions for preliminary injunctions. On September 14,
1995, it granted Appellees’ motion for partial summary judgment,
dismissing for lack of standing Appellants’ claims for equal
treatment in the areas of coaches’ salaries, budgets, facilities,
training, and travel, on the ground that Appellants could not
demonstrate injury-in-fact related to existing varsity athletic
programs in which they had never sought to participate.4 On the
same date, the district court dismissed Appellants’ 42 U.S.C. §
1983 claims against defendants Davis and Dean in their individual
4
Alleged violations of Title IX in the area of athletics
are often divided into effective accommodation claims and equal
treatment claims. The distinction is derived from the
regulations promulgated under Title IX. Effective accommodation
claims correspond to the portion of the implementing regulations
that
provide that in determining whether equal athletic
opportunities for members of both sexes are available, the
Office of Civil Rights of the Department of Education (the
office charged with enforcement of Title IX) will consider,
among other factors, “[w]hether the selection of sports and
levels of competition effectively accommodate the interests
and abilities of members of both sexes.”
Boucher v. Syracuse Univ., 164 F.3d 113, 115 n.1 (2d Cir. 1999)
(quoting 34 C.F.R. § 106.41(c)(1)). Equal treatment claims
“derive from the Title IX regulations found at 34 C.F.R. §§
106.37(c) and 106.41(c)(2)-(10), which call for equal provision
of athletic scholarships as well as equal provision of other
athletic benefits and opportunities among the sexes.” Id. at 115
n.2.
6
capacities on the basis of qualified immunity, and also dismissed
the remaining § 1983 and Fourteenth Amendment claims. The district
court also entered an order provisionally certifying the following
class:
Those female students enrolled at LSU since 1993 and any
time thereafter who have sought or seek to participate in
varsity intercollegiate athletics at LSU but who are or
were not allowed such participation due to LSU’s failure
to field teams in said female varsity athletics.
The district court conducted trial on Appellants’ surviving
claims from October 10, 1995, through November 8, 1995. On January
11, 1996, the district court entered an order decertifying the
class because the numerosity requirement of Federal Rule of Civil
Procedure 23(a) (“Rule 23(a)”) had not been met and because a class
was not needed to obtain the requested relief. On January 12,
1996, the district court entered its opinion on the merits finding
that Appellees were in violation of Title IX. See Pederson v.
Louisiana State Univ., 912 F. Supp. 892, 917 (M.D. La. 1996). The
district court ruled, however, that Appellees did not intentionally
violate Title IX and therefore would not be liable for monetary
damages. The district court also dismissed the claims of the
Pederson Plaintiffs for lack of standing. As a result of its
finding that Appellees were in violation of Title IX, the district
court ordered Appellees to submit a plan for compliance with the
statute (the “Compliance Plan”).
The Pederson Plaintiffs filed a notice of appeal on January
12, 1996 from the district court’s order. The notice of appeal
encompassed all prior district court orders. On June 9, 1997, the
7
Pineda Plaintiffs filed a notice of appeal from the district
court’s May 9, 1997 order approving the Compliance Plan. The
notice of the appeal encompassed all prior district court orders.
On July 24, 1997, Appellants collectively filed a notice of appeal
from the final judgment entered on July 1, 1997. In this
consolidated appeal, Appellants challenge the district court’s
decision to decertify the class, the district court’s conclusion
that Appellees did not intentionally violate Title IX, the district
court’s decision to dismiss the Pederson Plaintiffs’ claims for
lack of standing, and the district court’s conclusion that
Appellants lacked standing to pursue their claims alleging a lack
of equal treatment in existing LSU varsity sports.
Prior to the entry of final judgment against Appellees, the
Supreme Court decided Seminole Tribe v. Florida, 517 U.S. 44
(1996). In their answer to both complaints, Appellees had pled the
affirmative defense of Eleventh Amendment immunity. In light of
Seminole Tribe, Appellees filed a Rule 12(b)(1) motion to dismiss
on May 14, 1996, contending that Eleventh Amendment sovereign
immunity deprived the court of subject matter jurisdiction. On
March 4, 1997, the district court denied Appellees’ motion. On
March 19, 1997, Appellees filed a notice of appeal of the district
court’s denial of their 12(b)(1) motion. On June 9, 1997,
Appellees appealed from the district court’s May 9, 1997 order
approving the Compliance Plan. The notice of appeal encompassed
all of the district court’s earlier rulings, including the district
court’s finding that LSU is or was in violation of Title IX. On
8
July 7, 1997, Appellees filed another notice of appeal from the
final judgment entered on July 1, 1997. On appeal, Appellees
challenge the district court’s denial of their 12(b)(1) motion to
dismiss, the district court’s conclusion that Appellees were in
violation of Title IX, and the district court’s ordered injunctive
relief on the ground that it is overbroad.
II. Jurisdiction
We begin our analysis by determining our jurisdiction to
entertain these appeals. We must address the jurisdictional issues
of standing, mootness, state sovereign immunity, and class
certification; we address these issues in no particular order.5 We
proceed, first, by reviewing the district court’s decision to
decertify the class it provisionally certified on September 14,
1995. Next, with regard to standing, we determine whether the
district court correctly determined that the Pederson Plaintiffs
lacked standing to pursue their claims and whether it correctly
determined that Appellants lacked standing to pursue their claims
of unequal treatment in existing varsity sports at LSU. Third, we
examine Appellees’ contentions regarding mootness. Finally, we
5
When questions of both Article III jurisdiction and class
certification are presented, the class certification questions,
at times, “should be treated first because class certification
issues are ‘logically antecedent’ to Article III concerns and
pertain to statutory standing, which may properly be treated
before Article III standing.” Ortiz v. Fibreboard Corp., 119 S.
Ct. 2295, 2300 (1999) (quoting Amchem Products, Inc. v. Windsor,
521 U.S. 591, 612 (1997) ) (internal citations omitted). Because
the class certification issue presented here is not outcome
determinative, as it was in both Ortiz and Amchem, it need not,
in our minds, be treated first. We nonetheless begin by
discussing the district court’s decertification of the putative
class.
9
determine whether the doctrine of sovereign immunity bars suit in
this case.
A. Class Decertification
We review a district court’s class certification decisions for
abuse of discretion.6 See Shipes v. Trinity Indus., 987 F.2d 311,
316 (5th Cir. 1993); Merrill v. Southern Methodist Univ., 806 F.2d
600, 607 (5th Cir. 1986). “[T]he district court maintains great
discretion in certifying and managing a class action. We will
reverse a district court's decision to certify a class only upon a
showing that the court abused its discretion, or that it applied
incorrect legal standards in reaching its decision.” Mullen v.
Treasure Chest Casino, LLC, 186 F.3d 620, 624 (5th Cir. 1999). The
decision to decertify a provisionally certified class is a class
certification decision and, as such, is reviewed for abuse of
discretion. See Mooney v. Aramco Services Co., 54 F.3d 1207, 1212
(5th Cir. 1995); Briggs v. Anderson, 796 F.2d 1009, 1017 (8th Cir.
1986).
In the district court, Appellants sought to certify the class
of “all LSU women students enrolled at any time since February,
1993 or who seek to enroll or become enrolled during the course of
6
We review the district court’s decertification of the
class despite Appellees’ contentions that this action is moot as
to Appellants. Even if that contention holds true, Appellants
are the proper parties to contest the district court’s
certification decisions regarding the putative class. See United
States Parole Comm’n v. Geraghty, 445 U.S. 388, 404 (1980).
Appellees also argue that the class claims are moot. We
determine, infra, that they are not.
10
this litigation and who seek or have sought to participate and or
were deterred from participating in varsity intercollegiate
athletics funded by LSU.”7 Memorandum Ruling of Jan. 12, 1996, at
1. On September 14, 1995, the district court provisionally
certified the class of “[t]hose who have sought or seek to
participate in varsity intercollegiate athletics at LSU but who are
or were not allowed such participation due to LSU’s failure to
field teams in said female varsity athletics.” Id. at 4. At that
time, the district court voiced its concern that the numerosity
requirement of Rule 23(a) had not been met. The court stated:
provisional certification will require plaintiffs, before
judgment is rendered, to further support their assertion that
the joinder of potential class members is impracticable. . . .
In particular this Court is concerned that plaintiffs cannot
show that one major argument on numerosity is causally weak,
i.e. whether women who participate in intermurals [sic] at LSU
7
In order to maintain a class action, plaintiffs must first
show that the four requirements Rule 23(a) have been met and,
additionally, that one of the requirements of Rule 23(b) have
been met. See FED. R. CIV. P. 23. The requirements of Rule 23(a)
are
(1) the class is so numerous that joinder of all members is
impracticable, (2) there are questions of law or fact common
to the class, (3) the claims or defenses of the
representative parties are typical of the claims or defenses
of the class, and (4) the representative parties will fairly
and adequately protect the interests of the class.
Id. 23(a). The district court initially certified a class under
Rule 23(b)(2), which allows a class action if “the party opposing
the class has acted or refused to act on grounds generally
applicable to the class, thereby making appropriate final
injunctive relief or corresponding declaratory relief with
respect to the class as a whole.” Id. 23(b)(2). Appellants
contend that they reserved the right to move for certification
under Rule 23(b)(3), but the Appellees dispute this contention.
We take no position on this debate because no appeal was filed
with respect to the certification of a Rule 23(b)(3) class.
11
would have the ability or interests to compete at the varsity
level at LSU.
Memorandum Ruling of Sept. 14, 1995, at 10-11. Following the close
of evidence at trial, both sides briefed the issue of numerosity.
Ultimately, the district court decertified the provisional
class. See Memorandum Ruling of Jan. 12, 1996, at 8-9. It stated
that it had “cautioned plaintiffs’ counsel in its original ruling
that the evidence presented on numerosity was not sufficient to
uphold a class certification and granted plaintiffs the opportunity
to bolster that information. [It] remain[ed] unconvinced that such
numerosity exists.”8 Id. at 4-5.
Appellants challenge the decertification of the putative
class. It is important for our purposes to recognize that
Appellants do not challenge the district court’s redefinition of
the putative class; they merely challenge the district court’s
decision to decertify the redefined class.9 The precise question
before us, therefore, is whether the district court abused its
discretion when it decertified, on the grounds of lack of
8
The district court then established “lack of necessity” as
an alternative ground for decertifying the class. This court
has, in the past, declined to decide whether necessity can play a
role in class certification decisions. See Johnson v. City of
Opelousas, 658 F.2d 1065, 1069-70 (5th Cir. 1981). We again
decline to decide this question. We simply decide that, if
indeed a necessity requirement exists, the substantial risk of
mootness here created a necessity for class certification in this
case, and the district court abused its discretion in finding no
necessity for a class.
9
Appellants assert in their brief before this court a
desire to represent the class they originally proposed to the
district court, but they fail to challenge the district court’s
redefinition of the putative class.
12
numerosity and lack of necessity, the class of “[t]hose female
students enrolled at LSU since 1993 and any time thereafter who
have sought or seek to participate in varsity intercollegiate
athletics at LSU but who are or were not allowed such participation
due to LSU’s failure to field teams in said female varsity
athletics.” Memorandum Ruling of Jan. 12, 1996, at 4.
Appellants’ major contention appears to be that the evidence
presented at trial clearly satisfied the numerosity requirement and
that the district court’s decertification order, therefore,
erroneously assessed that evidence. Appellants also attack the
district court’s failure to make specific findings of fact in its
memorandum ruling decertifying the putative class. See Appellants’
Brief at 34-35 (“Although the District Court (contrary to Rules 23
and 52) made no factual findings supporting its holding as to
numerosity, the trial evidence clearly established the numerosity
element.”).
The district court made clear that its decertification
decision, in all aspects relevant to this discussion, rested on
Appellants’ inability to satisfy the numerosity requirement.
Moreover, in its September 14, 1995, Memorandum Ruling, the
district court explained that Appellants had failed to provide
evidence that members of the intramural and club teams had the
desire or ability to compete at the varsity level. Appellants are
correct, however, that the district court failed to identify
specific findings of fact to support its conclusion that the
numerosity requirement had not been met. Both parties briefed the
13
numerosity issue following the close of evidence at trial. These
briefs detailed the evidence in favor of and against a conclusion
that the numerosity prong of Rule 23(a) had been satisfied. This
same evidence is reiterated in the briefs prepared on appeal.
At trial, Appellants established that a number of current LSU
female students had a desire to try out for varsity soccer or fast-
pitch softball.10 Appellees admit that eight people showed up for
varsity soccer tryouts. These eight, however, do not constitute
the sum total of class members. The class consists of all “female
students enrolled at LSU since 1993 and any time thereafter” who
wish to participate. Plaintiffs established that, around the time
of trial, well over 5,000 young women were playing soccer or fast-
pitch softball at the high school level in Louisiana. They also
established that many former members of a Baton Rouge soccer club
received scholarships to play intercollegiate soccer. As Appellees
point out, these women, because they are not students at LSU, are
not members of the putative class. However, considering the talent
pool in Louisiana established by these figures and the number of
LSU students who come from Louisiana, Appellants have established
that numerous future female LSU students will desire to try out for
varsity soccer and fast-pitch softball. To satisfy the numerosity
prong, “a plaintiff must ordinarily demonstrate some evidence or
10
Because we determine, infra, that to establish standing,
an individual need only demonstrate that she is able and ready to
compete for a position on the unfielded team, we do not focus, as
the district court seems to have, on whether potential class
members have the skill necessary to obtain a position on a
varsity team.
14
reasonable estimate of the number of purported class members.”
Zeidman v. J. Ray McDermott & Co., Inc., 651 F.2d 1030, 1038 (5th
Cir. 1981). The evidence presented brings Appellants’ assertions
as to numerosity beyond the “mere allegation that the class is too
numerous to make joinder practicable” which, by itself, is
insufficient. Fleming v. Travenol Laboratories, Inc., 707 F.2d
829, 833 (5th Cir. 1983).11
Our independent review of the record satisfies us that the
numerosity prong has been satisfied. Because the district court
failed to identify specific findings that led it to conclude that
the numerosity prong had not been satisfied, we can only conclude
that its assessment of the evidence was clearly erroneous and,
therefore, that it abused its discretion in declining finally to
certify the putative class on the ground of lack of numerosity.
Accordingly, we vacate the district court’s decertification order.
It has been over four years since the district court
provisionally certified the class at issue. While we have
11
We have previously stated that when conducting a
numerosity analysis, district courts must not focus on sheer
numbers alone but must instead focus “on whether joinder of all
members is practicable in view of the numerosity of the class and
all other relevant factors.” Phillips v. Joint Legislative
Comm., 637 F.2d 1014, 1022 (5th Cir. 1981). We have found the
inclusion of future members in the class definition a factor to
consider in determining if joinder is impracticable. In Jack v.
American Linen Supply Co., we noted that “[t]he alleged class
. . . include[d] unnamed, unknown future . . . [members] who will
be affected by . . . discriminatory policies, and joinder of
unknown individuals is certainly impracticable.” 498 F.2d 122,
124 (5th Cir. 1974). In the case at hand, the fact that the
class includes unknown, unnamed future members also weighs in
favor of certification.
15
determined that the district court abused its discretion in
decertifying the class on the grounds of numerosity and, possibly,
lack of need, this court is not as well situated as the district
court to determine whether the putative class should now finally be
certified given all other considerations that go into a class
certification decision. Upon remand, therefore, the district court
should reconsider final class certification in light of this
opinion and all other class certification considerations, including
the adequacy as a representative of any person who hereafter comes
forward to represent the class.
B. Standing
The district court ruled that the Pederson Plaintiffs lacked
standing to bring suit for violations of Title IX and that all
Appellants lacked standing to challenge LSU’s existing varsity
program. We review each ruling in turn.
1. Legal Principles
“Jurisdictional questions are questions of law, and thus
reviewable de novo by this Court. . . . If the district court
resolves any factual disputes in making its jurisdictional
findings, the facts expressly or impliedly found by the district
court are accepted on appeal unless the findings are clearly
erroneous.” In the Matter of the Complaint of Tom-Mac, Inc., 76
F.3d 678, 682 (5th Cir. 1996) (internal citations omitted). “A
question of standing raises the issue of whether the plaintiff is
entitled to have the court decide the merits of the dispute or of
particular issues. Standing is a jurisdictional requirement that
16
focuses on the party seeking to get his complaint before a federal
court and not on the issues he wishes to have adjudicated.” Cook
v. Reno, 74 F.3d 97, 98-99 (5th Cir. 1996) (internal quotations and
footnotes omitted).
To have standing, a plaintiff must establish three elements:
First, the plaintiff must show that it has suffered an injury
in fact--a harm suffered by the plaintiff that is concrete and
actual or imminent, not conjectural or hypothetical. Second,
the plaintiff must establish causation–a fairly traceable
connection between the plaintiff’s injury and the
complained-of conduct of the defendant. Lastly, there must be
redressability--a likelihood that the requested relief will
redress the alleged injury.
Sierra Club v. Peterson, 185 F.3d 349, 360 (5th Cir. 1999).
Additionally, courts have refused to adjudicate cases that raise
only generalized grievances. “A generalized grievance is a harm
shared in substantially equal measure by all or a large class of
citizens. The prudential principle barring adjudication of
generalized grievances is closely related to the constitutional
requirement of personal injury in fact, and the policies underlying
both are similar." Walker v. Mesquite, 169 F.3d 973, 979 n.16 (5th
Cir. 1999) (internal citations and quotation marks omitted).
Finally, the doctrine of standing is distinguishable from that
of mootness. The Supreme Court has acknowledged “mootness as ‘the
doctrine of standing set in a time frame: The requisite personal
interest that must exist at the commencement of the litigation
(standing) must continue throughout its existence (mootness).’”
United States Parole Comm’n v. Geraghty, 445 U.S. 388, 397 (1980)
(quoting Monaghan, Constitutional Adjudication: The Who and When,
82 YALE L.J. 1363, 1384 (1973)).
17
2. Pederson Plaintiffs
The district court determined that the Pederson Plaintiffs--
Pederson, Ollar, and Clark--lacked standing to bring claims for
equitable or declaratory relief. With regard to Ollar and Clark,
the court found that they “were ineligible to compete in
intercollegiate athletics after May, 1995 under the regulations of
the National Collegiate Athletic Association [(“NCAA”)].”
Pederson, 912 F. Supp. at 907. The court found that Pederson
retained NCAA eligibility and had made the team, but she quit the
team for financial reasons and was, at the same time, cut from the
team due to a lack of skill. Id. at 907 & n.34. The court further
found that LSU had no men’s varsity soccer team and that it
provided men and women the same opportunity to participate in club
soccer. Finally, the court found that the Pederson Plaintiffs did
not establish the ability to play soccer above the club level and
that they did not establish the interest or ability to play any
sport other than soccer. The court therefore concluded that “LSU’s
alleged violation of Title IX by not providing additional athletic
opportunity to its female students in no way personally impacted
these three plaintiffs.” Id. at 907. Absent any personal impact,
the court determined that the Pederson Plaintiffs lacked standing
and dismissed their claims.
The district court failed appropriately to evaluate the
Pederson Plaintiffs’ standing. First, the district court addresses
each plaintiff’s NCAA eligibility at the time of trial.
Eligibility at the time of trial, however, implicates mootness; it
18
has no bearing on the particular litigant’s standing at the time
the suit was filed.12
Second, the district court’s conclusion that LSU provided men
and women the same opportunities to play soccer and that,
therefore, LSU’s Title IX violation did not impact the Pederson
Plaintiffs reaches the merits of the Pederson Plaintiffs’ effective
accommodation claim. The Pederson Plaintiffs claim that LSU, by
failing to field a women’s varsity soccer team, ineffectively
accommodated the interests and abilities of female students at the
school. Whether or not the Pederson Plaintiffs produced evidence
at trial sufficient to establish this alleged violation is the very
heart of the matter in their case and does not implicate standing.
Standing requires alleged misconduct, not proven misconduct. To
the extent that the district court reached the merits of the
Pederson Plaintiffs’ claims in its opinion, we remark only that
“[i]t is inappropriate for the court to focus on the merits of the
case when considering the issue of standing.” Hanson v. Veterans
Admin., 800 F.2d 1381, 1385 (5th Cir. 1986).
Third, the district court misconceived the level of injury
necessary to establish standing in this area. The district court’s
focus on the ability of each Pederson Plaintiff to secure a
position on the varsity soccer team was misplaced. This inquiry
will be appropriate in the determination of damages during Stage
II. If the Pederson Plaintiffs have standing and succeed on their
violation claims, then each plaintiff’s ability to secure a
12
We discuss mootness in Part II.C., infra.
19
position on the unfielded varsity soccer team during the period of
the violation is a factor to consider in assessing damages. Of
course, each plaintiff’s ability to secure a position will be
impacted both by skill and NCAA eligibility. The findings of the
district court, therefore, do not help to determine whether the
Pederson Plaintiffs have standing to challenge LSU’s effective
accommodation under Title IX, i.e., whether they met the minimum
standing requirements at the time they instituted this suit.
We are unaware of, nor does either party point to, precedent
delineating the precise level of injury a litigant must demonstrate
to establish standing to assert a claim under Title IX for
ineffective accommodation. Clearly, the alleged misconduct here is
LSU’s failure to field a varsity soccer team in violation of Title
IX. The remedies sought are both monetary and injunctive. As a
general matter, injury in fact is the “invasion of a legally
protected interest.” Northeastern Fla. Chapter of the Associated
Gen. Contractors of Am. v. City of Jacksonville, 508 U.S. 656, 663
(1993). The difficult question, then, is whether there is, in this
case, any legally protected interest actually violated or in
imminent danger of being violated that is fairly traceable to the
alleged misconduct and from which the Pederson Plaintiffs will
likely obtain relief as a result of a favorable ruling. The
district court seems to require that the Pederson Plaintiffs allege
the injury of being denied the opportunity to compete on a specific
varsity team. It follows from this reasoning that a determination
that a plaintiff would not have made the specific varsity team,
20
even had it existed, defeats her standing because she fails to
demonstrate sufficient injury. The district court requires too
much.
Our decision here is informed on two fronts. First, we find
the case of Boucher v. Syracuse Univ., 164 F.3d 113 (2d Cir. 1999)
supportive. There, members of the club lacrosse and softball teams
brought suit for violation of Title IX. Neither the district court
nor the Court of Appeals for the Second Circuit discussed whether
any of the students possessed the skills necessary to make one of
the unfielded varsity teams. Nonetheless, the Second Circuit,
after dismissing their equal treatment claims for lack of standing,
never even questioned their standing to bring effective
accommodation claims. See id. at 120.
Second, we find the Supreme Court’s Equal Protection
jurisprudence instructive. In the context of set-aside programs,
the Court has stated:
When the government erects a barrier that makes it more
difficult for members of one group to obtain a benefit than it
is for members of another group, a member of the former group
seeking to challenge the barrier need not allege that he would
have obtained the benefit but for the barrier in order to
establish standing. The "injury in fact" in an equal
protection case of this variety is the denial of equal
treatment resulting from the imposition of the barrier, not
the ultimate inability to obtain the benefit. And in the
context of a challenge to a set-aside program, the "injury in
fact" is the inability to compete on an equal footing in the
bidding process, not the loss of a contract. To establish
standing, therefore, a party challenging a set-aside program
. . . need only demonstrate that it is able and ready to bid
on contracts and that a discriminatory policy prevents it from
doing so on an equal basis.
Northeastern Florida, 508 U.S. at 666 (citations omitted).
Violating Title IX by failing to field women’s varsity teams that
21
effectively accommodate the interests and abilities of the
university community certainly creates a barrier for female
students. In much the same way as set-aside programs, the injury
here results from the imposed barrier–the absence of a varsity team
for a position on which a female student should be allowed to try
out. We hold, therefore, that to establish standing under a Title
IX effective accommodation claim, a party need only demonstrate
that she is “able and ready” to compete for a position on the
unfielded team.
The Pederson Plaintiffs have certainly established standing in
this case. They all participated in club soccer, and, indeed,
Pederson actually competed for a spot on the team once it was
fielded. Whether or not they have proved sufficiently their claims
on the merits, however, is for the district court to decide. The
district court’s conclusion that Appellees violated Title IX by
failing to field a women’s varsity fast-pitch softball team does
not compel a conclusion that they likewise violated Title IX by
failing to field a women’s varsity soccer team. Upon remand, the
district court should determine, prior to proceeding to Stage II,
the merits of the Pederson Plaintiffs’ claim.
3. Unequal Treatment Claims
Appellants also challenge the district court’s determination
that they did not have standing to challenge LSU’s entire varsity
athletic program as it then existed, including the allocation of
scholarships and other benefits to varsity athletes. They argue
that the district court should not have dismissed their claims for
22
declaratory and injunctive relief with respect to women’s varsity
basketball, volleyball, track, tennis, golf, gymnastics, and
swimming because they have individually sustained the requisite
injury necessary to address the operation of LSU’s athletic program
as a whole, and because limiting the inquiry to specific teams
contradicts the policies of Title IX as well as traditional notions
of fairness.
The district court found that Appellants had standing to
challenge the lack of effective accommodation but not the denial of
equivalence in other athletic benefits. Appellees defend the
district court’s conclusion on the ground that persons who never
participated in intercollegiate athletics have no standing to
challenge the treatment of existing athletes.
We agree with the district court that Appellants lack standing
to challenge the alleged unequal treatment of varsity athletes at
LSU. At the time of trial, no named plaintiff was a member of a
varsity team.13 Moreover, the class that Appellants seek to
represent includes women injured by LSU’s failure to field teams
for certain sports. Standing to challenge effective accommodation
does not automatically translate into standing to challenge the
treatment of existing varsity athletes. See Boucher, 164 F.3d at
116 (“The [district] court held that since none of the named
13
We do not mean to imply that an equal treatment claim can
only be brought by an existing varsity athlete. Whether, for
example, a female student who was deterred from competing for a
spot on an existing varsity team because of perceived unequal
treatment of female varsity athletes would have standing to
challenge the existing varsity program is a question we leave for
another day.
23
plaintiffs were varsity athletes, they did not have standing to
assert the equal treatment claims. Its ruling on this issue was
proper and we affirm the dismissal of plaintiffs’ equal treatment
claims . . . .”). Because we agree substantially with the
reasoning set forth by the district court in its September 14,
1995, Memorandum Ruling, for further explanation we rely on the
district court’s discussion.14
14
The district court stated:
If she [plaintiffs] cannot show personal injury, then
no Article III case or controversy exists, and a
Federal Court is powerless to hear that grievance. The
individual injury requirement is not met by alleging
“that injury has been suffered by other, unidentified
members of the class to which [the plaintiff] belong[s]
and which she purports to represent.” Warth v. Seldin,
422 U.S. 490, 502, 95 S. Ct. 2197, 2207, 45 L. Ed. 2d 343
(1975). Accordingly, a named plaintiff in a class
action who cannot establish the requisite case or
controversy between him or herself and the defendants
simply cannot seek relief for anyone...not for herself,
and not for any other member of the class. O’Shea v.
Littleton, 414 U.S. 488, 494, 94 S. Ct. 669, 675, 38
L. Ed. 2d 674 (1974)...The treatment of participants in
female varsity athletics has not impacted plaintiffs as
they have not been female varsity athletes and
therefore have not been discriminated against by any
alleged treatment of LSU’s female varsity athletes;
therefore a change in said treatment would not impact
plaintiffs. Plaintiffs have personally suffered no
injury or threatened injury due to LSU’s allegedly
illegal treatment of its varsity athletes and as such
fail the initial prong of the standing inquiry as to
the claims for illegal treatment of athletes.
District Court Memorandum Ruling, September 14, 1995.
We note, additionally, that we would be unable to reach the
merits of this claim even were Appellants to have standing. We
determined, supra, that the putative class is not properly
certified, and we determine, infra, that the claims for
injunctive relief have been rendered moot as to the named
plaintiffs by reason of their graduation; because there is no
proper party before us to raise this issue, we would be unable to
reach the merits of it. See Geraghty, 445 U.S. at 400 n.7, 404.
24
C. Mootness
Appellees insist, at several points throughout their brief,
that issues presented are moot as to the named plaintiffs and the
class. Appellants seem to agree with this assertion, as least in
relation to the injunctive claims asserted by the named plaintiffs.
In their brief, Appellants state, “[The Pineda Plaintiffs’]
graduation would render the issue [of injunctive relief] moot and
thereby alleviate the requirement that LSU maintain a women’s
softball team . . . .” Appellants’ Brief at 45. As to the class,
Appellees assert that the district judge’s order was “essentially
class relief.” Appellees’ Brief at 76. They fault Appellants for
failing to “argue in their brief that the compliance plan ordered
by the District Court is deficient or that the plan does not bring
LSU into compliance with respect to Title IX’s effective
accommodation requirements for participatory opportunities.” Id.
at 77. The gist of Appellees’ argument is that the district court,
in effect, ordered class relief; Appellants do not contest that
relief; therefore, any class claims for injunctive relief are moot.
Appellees rely on Locke v. Board of Public Instruction, 499
F.2d 359 (5th Cir. 1974), for the proposition that the district
court’s acceptance of their Compliance Plan moots the class claims.
In that case, a teacher sued her school district for race and sex
discrimination surrounding her maternity leave. Before oral
argument on appeal, the maternity policy was changed and Locke was
transferred, at her own request, into a teaching position that she
found satisfactory.
25
We noted there that “in her original complaint the only relief
sought by Mrs. Locke other than money damages was an injunction
restraining the school system from implementing its present leave
policy against the plaintiff in a discriminatory manner.” Id. at
363 (emphasis added). We went on to explain:
It is clear from the facts before us . . . that the plaintiff
herein has now been satisfied as to her request for a job
complete with supplemental work and pay. The counsel for the
school board . . . has assured this court that the school
board always had, and still maintains, good will toward Mrs.
Locke. Furthermore, it is clear that the school board has
done everything within its power to comply with Mrs. Locke’s
wishes within the limitations placed upon the board by the
various federal orders and mandates. This court is aware
. . . that voluntary cessation of allegedly illegal conduct
does not deprive the tribunal of power to hear and determine
the cases, i.e., does not make the case moot. But, the
mootness in this case . . . depends not at all upon a
voluntary cessation of activity, but rather depends on the
simple fact that Mrs. Locke’s wishes have been complied with
and it is a matter of record that the school board is
complying with the various federal mandates and orders as to
integration of its school system. Even though . . . it could
be argued that this is a question that is capable of
repetition, here, . . . that is not possible. The maternity
leave policy allegedly forced on Mrs. Locke is no longer in
existence, a new one having taken its place on December 12,
1972. Mrs. Locke will never again be forced to comply with
that leave policy.
Id. at 364 (internal quotation marks and citations omitted).
Finally, we concluded that “although this matter has generated
public concern, the nature of the case itself we find is that of a
single individual alleging infringement of her rights. This does
not make the dispute one of ‘general public interest’ requiring a
decision even if many attributes of mootness exist.” Id. at 366.
Appellants here have consistently maintained that the alleged
Title IX violation impacts not only themselves, but many women at
LSU. Furthermore, the fact that the district court ordered a
26
Compliance Plan demonstrates that the issues here go far beyond the
impact of the alleged violations on the named plaintiffs. Finally,
Appellees have failed to show the same dedication to accommodating
the desires of Appellants that the school district in Locke
demonstrated. Locke was rightly decided, but, without intending to
put too fine a point on it, it is on all counts not the case before
us today.
This appeal raises three merit-based questions. Appellees
argue that the district court erred in its conclusion that LSU
violated Title IX. Appellants argue that the district court erred
in finding that Appellees did not discriminate intentionally.
Finally, Appellees argue that the district court’s Compliance Plan
requirements were overly broad. The Title IX violation question is
necessarily antecedent to the issue of intentional discrimination,
and the intentional discrimination issue, as discussed infra,
implicates Appellants’ damages claim. The Compliance Plan question
deals with the injunctive relief prayed for by Appellants.
“Justiciability must be analyzed separately on the issues of money
damages and the propriety of equitable relief.” Henschen v. City
of Houston, 959 F.2d 584, 587 (5th Cir. 1992). We, therefore,
analyze separately the mootness of the injunctive claims and the
damages claims. Furthermore, we examine mootness as to the named
plaintiffs and the putative class. “The starting point for
analysis is the familiar proposition that ‘federal courts are
without power to decide questions that cannot affect the rights of
litigants in the case before them.’” DeFunis v. Odegaard, 416 U.S.
27
312, 316 (1974) (quoting North Carolina v. Rice, 404 U.S. 244, 246
(1971)).
1. Injunctive Relief
In the present case, Appellants have all graduated from LSU.
Even assuming that any one of them retains any NCAA eligibility at
this point, they have not argued that there is any likelihood that
any of them will return to LSU and attempt to play varsity sports.
As is so often the case in suits for injunctive relief brought by
students, graduation or impending graduation renders their claims
for injunctive relief moot. See Id. at 319-20; Sapp v. Renfroe,
511 F.2d 172, 175 (5th Cir. 1975). Because the named plaintiffs
will not benefit from a favorable ruling on the question
implicating injunctive relief, we hold that this question is moot
as to them.
The issue of injunctive relief, however, is not moot as to the
putative class. Appellees argue that the district court’s
effective class relief and their compliance with Title IX, based
upon a plan entered into before this litigation began, renders the
issue of injunctive relief moot as to the putative class as well.
Contrary to Appellees’ assertions, it is well established that the
voluntary cessation of allegedly illegal conduct does not
deprive the tribunal of power to hear and determine the case,
i.e., does not make the case moot. But jurisdiction, properly
acquired, may abate if he case becomes moot because (1) it can
be said with assurance that there is no reasonable expectation
. . . that the alleged violation will recur, and (2) interim
relief or events have completely and irrevocably eradicated
the effects of the alleged violation.
When both conditions are satisfied it may be said that
the case is moot because neither party has a legally
cognizable interest in the final determination of the
underlying questions of fact and law.
28
The burden of demonstrating mootness is a heavy one.
County of Los Angeles v. Davis, 440 U.S. 625, 631 (1979) (internal
citations and quotation marks omitted). In this case, Appellees
bear the burden of demonstrating that “‘there is no reasonable
expectation that the wrong will be repeated.’” ACLU v. Finch, 638
F.2d 1336, 1346 (5th Cir. 1981) (quoting United States v. W.T.
Grant, 345 U.S. 629, 633 (1953)). Appellees have failed to meet
this burden. They have made no representation to this court that
they are dedicated to ensuring equal opportunities and fair
accommodation for both their female and male athletes in the long
run. They simply state that they have instituted varsity women’s
fast-pitch softball and soccer and that they have, as required,
submitted a Compliance Plan to the district court. Appellees have
given no assurance that they will not disband these programs, as
they have with varsity fast-pitch softball in the past. In its May
9, 1997, order, the district court, although speaking highly of
LSU’s turnaround in the area of effective accommodation,
nonetheless required periodic reporting for several years. We will
not secondguess the district court’s reasoned judgment by declaring
this issue moot when Appellees have failed to demonstrate that
their Title IX effective accommodation violations will not recur.
We do not think, however, that the voluntary cessation
exception applies equally to the individual Appellants. Even were
LSU to resume its illegal activity, Appellants, because of their
graduation, would be unaffected. The question of injunctive relief
29
is therefore, as stated supra, rendered moot as to the named
plaintiffs.
2. Monetary Relief
Finally, Appellants’ damages claim is not moot. The district
court held that, with regard to the Pineda Plaintiffs, and we have
remanded for a determination whether, with regard to the Pederson
Plaintiffs, LSU violated the individual rights of each named
plaintiff by failing to accommodate effectively the interests and
abilities of female students. Appellees contest the district
court’s holding. Appellants assert that LSU intentionally
discriminated against women. If these questions on appeal are
answered in Appellants’ favor, then to the extent that LSU’s
violations caused a named plaintiff’s actual damages, that person
is entitled to be compensated for those damages. A live
controversy, therefore, exists with regard to the damages claim,
and the legal questions underlying that claim are not moot. See
Henschen, 959 F.2d at 588.
D. Sovereign Immunity
Appellees contend that the district court lacked subject
matter jurisdiction to consider Appellants’ claims because
Appellees are immune from suit pursuant to the Eleventh Amendment.
Appellants, and the United States as Intervenor, counter that the
Eleventh Amendment does not bar Appellants’ suit because (1)
Congress validly abrogated the States’ Eleventh Amendment immunity
for purposes of Title IX, (2) LSU waived its Eleventh Amendment
immunity when it accepted federal funding for its educational
30
institutions, or (3) jurisdiction properly lies under the doctrine
of Ex Parte Young.15 The district court held that Eleventh
Amendment immunity did not deprive the court of subject matter
jurisdiction.16 See 912 F. Supp. at 901. The district court’s
ruling on Appellees’ Eleventh Amendment immunity is subject to de
novo review. See Seminole Tribe v. Florida, 11 F.3d 1016, 1021
(11th Cir. 1994), aff’d, 517 U.S. 44 (1996).
In order to abrogate a State’s sovereign immunity, Congress
must (1) have “unequivocally expresse[d] its intent to abrogate the
immunity,” and (2) have “acted pursuant to a valid exercise of
power.” Seminole Tribe, 517 U.S. at 55 (internal quotations
omitted).
There is no dispute that Congress unequivocally has expressed
its intent to abrogate the States’ sovereign immunity in the
context of Title IX. In response to Atascadero State Hosp. v.
Scanlon, 473 U.S. 234 (1985), Congress enacted the Civil Rights
Remedies Equalization Act (“CRREA”) as part of the Rehabilitation
15
The United States did not join in Appellants’ argument
that jurisdiction lies under the doctrine of Ex Parte Young.
Because we determine that Congress validly abrogated state
sovereign immunity in this context, we need not, and will not,
address the two alternative arguments.
16
The district court reasoned that Congress can validly
abrogate Eleventh Amendment immunity pursuant to its Article I
spending power. See 912 F. Supp. at 901. This reasoning cannot
stand in light of Seminole Tribe. Nevertheless, the district
court’s ultimate conclusion is correct, as we will discuss infra.
31
Act Amendments of 1986, § 1003, Pub. L. No. 99-506, 100 Stat. 1845
(codified at 42 U.S.C. § 2000d-7).17 Section 2000d-7 provides:
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 section 504 of the
Rehabilitation Act of 1973, Title IX of the Education
Amendments of 1972, the Age Discrimination Act of 1975,
42 U.S.C. § 6101 et seq., Title VII of the Civil Rights
Act of 1964, 42 U.S.C. § 2000d et seq., or the provisions
of any other Federal statute prohibiting discrimination
by recipients of Federal financial assistance.
42 U.S.C. § 2000d-7(a)(1) (some internal citations omitted).
Thus, the only issue is whether Congress acted pursuant to a
valid exercise of power when abrogating the States’ immunity. See
Seminole Tribe, 517 U.S. at 59 (“Was the Act in question passed
pursuant to a constitutional provision granting Congress the power
to abrogate?”). The Fourteenth Amendment is recognized to be such
a power. See id.; Fitzpatrick v. Bitzer, 427 U.S. 445, 452-56
(1976) (finding that, because the Fourteenth Amendment expanded
federal power at the expense of state power, the Fourteenth
Amendment extended federal power into the province of the Eleventh
Amendment and, therefore, § 5 of the Fourteenth Amendment allows
Congress to abrogate the immunity of the Eleventh Amendment).
Formerly, the Interstate Commerce Clause, see U.S. CONST. art I, §
17
Atascadero held that § 504 of the Rehabilitation Act of
1973, 29 U.S.C. § 794, which prohibits discrimination on the
basis of disability by programs receiving federal funds, did not
unequivocally demonstrate Congress’s intent to abrogate the
States’ Eleventh Amendment immunity in order to authorize private
damage actions against State entities. See 473 U.S. at 245-46.
Section 2000d-7 was a response to this decision; the provision
explicitly abrogates the States’ Eleventh Amendment immunity in
the context of § 504 of the Rehabilitation Act and other similar
federal statutes, including Title IX.
32
8, cl. 3, was also recognized to be such a power. See Pennsylvania
v. Union Gas Co., 491 U.S. 1, 19-20 (1989) (plurality opinion)
(holding that the power to regulate interstate commerce would be
“incomplete without the authority to render States liable in
damages”). Seminole Tribe, which involved the Indian Commerce
Clause, overruled Union Gas. See Seminole Tribe, 517 U.S. at 63,
72-73 (finding “no principled distinction . . . to be drawn between
the Indian Commerce Clause and the Interstate Commerce Clause,” and
holding that the Eleventh Amendment restricts judicial power under
Article III, and Article I powers cannot be used to circumvent
constitutional limitations).
After Seminole Tribe, then, legislation passed pursuant to
Congress’s Article I powers cannot validly abrogate the States’
sovereign immunity. Appellees contend that Title IX is Spending
Clause legislation, and that therefore Congress does not have the
authority after Seminole Tribe to abrogate the States’ Eleventh
Amendment immunity when acting pursuant to the Spending Clause.
Appellants respond that Title IX can also be justified as an
exercise of Congress’s power pursuant to Section 5 of the
Fourteenth Amendment, and that Congress can, after Seminole Tribe,
abrogate the States’ Eleventh Amendment immunity when acting
pursuant to Section 5 of the Fourteenth Amendment.
We must first decide whether Title IX is merely Spending
Clause legislation, or whether it can also be supported by Section
5 of the Fourteenth Amendment. This court, in Lesage v. Texas, 158
F.3d 213 (5th Cir. 1998),rev’d on other grounds, 120 S.Ct 467
33
(1999), held that Congress validly abrogated the States’ Eleventh
Amendment immunity for purposes of Title VI of the Civil Rights Act
of 1964 by enacting CRREA, 42 U.S.C. § 2000d-7(a)(1).18 In response
to arguments that Title VI was enacted pursuant to the Spending
Clause rather than Section 5 of the Fourteenth Amendment and that
Congress therefore could not validly abrogate the States’ Eleventh
Amendment immunity for purposes of Title VI, we stated that the
subjective intent of the legislators in enacting legislation is
irrelevant:
In evaluating the constitutionality of a statute, we
simply ask if Congress sufficiently articulated an
abrogation of state sovereign immunity and if it had the
power to do so . . . . This is an entirely objective
inquiry, for “[t]he constitutionality of action taken by
Congress does not depend on recitals of the power which
it undertakes to exercise.”
Id. at 217 (quoting EEOC v. Wyoming, 460 U.S. 226, 243 n.18 (1983))
(citations and further internal quotations omitted).
Lesage supports the proposition that, even if Congress stated
that it was acting pursuant to the Spending Clause in enacting
Title IX,19 if Congress could have acted pursuant to Section 5 of
18
Appellants contend that this provision also abrogates the
States’ Eleventh Amendment immunity for purposes of Title IX.
19
As Appellees recognize, Congress did not explicitly state
upon which provision it relied for authority to pass Title IX.
Appellees argue that the statutory framework conclusively
demonstrates that Congress was acting pursuant to its Spending
Clause power. The Supreme Court has recently agreed. In a
series of sexual harassment cases over the last two terms, the
Court has made clear its belief that Title IX was enacted
pursuant to the Spending Clause. In Davis v. Monroe County Bd.
of Ed., 526 U.S. ___, 119 S. Ct. 1661, 1669 (1999), the Court
explained that “we have repeatedly treated Title IX as
legislation enacted pursuant to Congress’ authority under the
Spending Clause.” This conclusion follows the Court’s reasoning
34
the Fourteenth Amendment, Congress has the authority to abrogate
for purposes of Title IX. See id. at 217-18; see also Crawford v.
Davis, 109 F.3d 1281, 1283 (8th Cir. 1997) (“The resolution of
defendants’ contention therefore turns on whether Congress, as an
objective matter, could have enacted Title IX pursuant to § 5 of
the Fourteenth Amendment.”). Moreover, as the Lesage court
recognized, “it is the statute abrogating immunity, not the
particular substantive provision of the statute, which specifically
concerns us.” Lesage, 158 F.3d at 218. Because § 2000d-7, the
provision which abrogated the States’ Eleventh Amendment immunity
for purposes of both Title VI and Title IX, was enacted pursuant to
Section 5 of the Fourteenth Amendment, the Lesage court found that
Congress had validly abrogated the States’ Eleventh Amendment
immunity. See id. at 218-19.
This reasoning supports the conclusion that Congress had the
authority to abrogate the States’ Eleventh Amendment immunity for
purposes of Title IX—either because Title IX could have been
enacted pursuant to Section 5 of the Fourteenth Amendment, see
Crawford, 109 F.3d at 1283 (“[W]e are unable to understand how a
statute enacted specifically to combat [gender] discrimination
could fall outside the authority granted to Congress by § 5.”), or
because the legislation actually abrogating the States’ immunity,
§ 2000d-7, was enacted pursuant to Section 5, see Lesage, 158 F.3d
at 218-19.
in Gebser v. Lago Vista Indep. Sch. Dist., 524 U.S. 274, 287
(1998) and Franklin v. Gwinnett County Pub. Schs., 503 U.S. 60,
74-75 (1992).
35
Other circuits have similarly concluded that Congress validly
abrogated the States’ Eleventh Amendment immunity for purposes of
Title IX. In Crawford v. Davis, 109 F.3d 1281 (8th Cir. 1997), the
court held that Title IX could be justified by Section 5 of the
Fourteenth Amendment, even if Congress did not explicitly state
that it was acting pursuant to its Section 5 authority, and
therefore Title IX validly abrogated the States’ immunity. See id.
at 1283. In Doe v. University of Illinois, 138 F.3d 653 (7th Cir.
1998), the court similarly found that Title IX could be justified
by Section 5 of the Fourteenth Amendment, and that Congress’s
abrogation of the States’ Eleventh Amendment immunity was therefore
valid. See id. at 660; accord Franks v. Kentucky Sch. for the
Deaf, 142 F.3d 360, 363 (6th Cir. 1998) (holding that Congress
validly abrogated Eleventh Amendment immunity for purposes of Title
IX because Congress had authority pursuant to Section 5 of the
Fourteenth Amendment to enact Title IX); cf. Timmer v. Michigan
Dep’t of Commerce, 104 F.3d 833, 838-39 (6th Cir. 1997) (stating
that it is not necessary for Congress to say explicitly which
constitutional provision it is relying upon, and concluding that
the Equal Pay Act was enacted pursuant to Section 5 of the
Fourteenth Amendment).
Notwithstanding our conclusion that Title IX validly abrogates
the States’ sovereign immunity, we pause to address two recent
decisions of the Supreme Court, handed down after oral argument in
this case, which speak to abrogation issues in the area of Eleventh
Amendment sovereign immunity. Appellees have submitted them to us
36
as support for their contention that the instant suit be dismissed
under the Eleventh Amendment. In the first, College Savings Bank
v. Florida Prepaid Postsecondary Ed. Expense Bd., 527 U.S. ___, 119
S. Ct. 2219, 1999 WL 412639 (1999), the Court held that legislation
under § 5 of the Fourteenth Amendment must be confined to
enforcement of the Amendment’s other provisions by legislation that
remedies or prevents constitutional violations. In College Savings
Bank, Petitioner argued that the Trademark Remedy Clarification Act
(“TRCA”) was designed to remedy and to prevent state deprivations
of two property interests without due process of law, but the Court
held that the asserted property interests—the right to be free from
a business competitor’s false advertising about its own product and
the right to be secure in one’s business interests—did not qualify
as protected property rights.
In Florida Prepaid Postsecondary Ed. Expense Bd. v. College
Savings Bank, 527 U.S. ___, 119 S. Ct. 2199, 1999 WL 412723 (1999),
the Court both reaffirmed its holding in Seminole Tribe that
Congress may not rely on Article I powers—here, the Commerce Clause
and the Patent Clause—to abrogate sovereign immunity and extended
the principle of College Savings Bank to cover actions against
states under the Patent and Plant Variety Protection Remedy
Clarification Act. Specifically, the Court in Florida Prepaid held
that abrogation under § 5 is invalid where it cannot be sustained
as legislation enacted to enforce the guarantees of the Fourteenth
Amendment’s Due Process Clause. In order to enact “appropriate”
legislation under the remedial power of § 5, see City of Boerne v.
37
Flores, 521 U.S. 507, 519 (1997), Congress must identify conduct
transgressing the Fourteenth Amendment’s substantive provisions and
must tailor its legislative scheme to remedy or to prevent such
conduct; unremedied patent infringement by the States did not meet
the test of City of Boerne and could not, therefore, validly
abrogate immunity.
We believe it beyond peradventure that Title IX meets the test
first explained in Seminole Tribe and recently clarified by College
Savings Bank and Florida Prepaid. Congress expressed a clear
intent to abrogate immunity with CRREA, and that Act was
appropriately passed under Congress’s § 5 power to remedy past
discrimination. As such, it was appropriate legislation itself and
its goal—protecting the reach of Title IX and other similar
statutes—was, by extension, also appropriate.
III. Title IX
We now turn to the merits of this dispute, and we will address
the underlying issues in Parts III and IV of this opinion. In this
Part, we affirm the district court’s judgment that LSU violated
Title IX and reverse the district court’s judgment that LSU did not
intentionally discriminate against women in the provision of
athletics.
A. Background
Title IX proscribes gender discrimination in education
programs or other activities receiving federal financial
assistance. See North Haven Bd. of Educ. v. Bell, 456 U.S. 512,
514 (1982). Patterned after Title VI of the Civil Rights Act of
38
1964, Pub. L. No. 88-352, 78 Stat. 252, 42 U.S.C. § 2000d (1994),
Title IX, as amended, contains two core provisions. The first is
a “program-specific” prohibition of gender discrimination:
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 . . . .
§ 901(a), 20 U.S.C. § 1681(a). The second core provision relates
to enforcement. Section 902 of Title IX authorizes each agency
awarding federal financial assistance to any education program to
promulgate regulations “ensuring that aid recipients adhere to §
901(a)’s mandate.” North Haven, 456 U.S. at 514. The “ultimate
sanction” for noncompliance is termination of federal funding or
the denial of future federal grants to the offending institution.
Id. Like § 901, § 902 is program-specific:
[S]uch termination or refusal shall be limited to the
particular political entity, or part thereof, or other
recipient as to whom such a finding [of noncompliance]
has been made, and shall be limited in its effect to the
particular program, or part thereof, in which such
noncompliance has been so found . . . .
§ 902, 20 U.S.C. § 1682.
Beginning in the mid-1970’s, the Department of Health,
Education and Welfare, and its successor, the Department of
Education, have relied on their § 902 power to promulgate
regulations governing the operation of federally-funded education
programs. These regulations encompass not only athletics policies,
but also actions by funding recipients in the areas of, inter alia,
39
admissions, textbooks, and employment.20 See, e.g., 34 C.F.R. §§
106.21 (admissions), 106.42 (textbooks), 106.51 (employment)
(1999). The regulation most pertinent to the instant controversy
requires that
No person shall, on the basis of sex, be excluded from
participation in, be denied the benefits of, be treated
differently from another person or otherwise be
discriminated against in any interscholastic,
intercollegiate, club or intramural athletics offered by
a recipient, and no recipient shall provide any such
athletics separately on such basis.
34 C.F.R. § 106.41(a) (1999). The regulations further provide that
A recipient which operates or sponsors interscholastic,
intercollegiate, club or intramural athletics shall
provide equal athletic opportunity for members of both
sexes. In determining whether equal opportunities are
available the Director will consider, among other
factors:
(1) Whether the selection of sports and levels
of competition effectively accommodate the
interests and abilities of members of both
sexes;
(2) The provision of equipment and supplies;
20
The regulations accompanying Title IX define a
“recipient” as
any State or political subdivision thereof, or any
instrumentality of a State or political subdivision thereof,
any public or private agency, institution, or organization,
or other entity, or any person, to whom Federal financial
assistance is extended directly or through another recipient
and which operates an education program or activity which
receives or benefits from such assistance, including any
subunit, successor, assignee, or transferee thereof.
34 C.F.R. § 106.2(h) (1999). The Supreme Court recently
clarified, in holding that the National Collegiate Athletic
Association (“NCCA”) is not a Title IX recipient, that
“[e]ntities that receive federal assistance, whether directly or
through an intermediary, are recipients within the meaning of
Title IX; entities that only benefit economically from federal
assistance are not.” National Collegiate Athletic Ass’n v.
Smith, ___ U.S. ___, ___, 119 S. Ct. 924, 929 (1999).
40
(3) Scheduling of games and practice time;
(4) Travel and per diem allowance;
(5) Opportunity to receive coaching and
academic tutoring;
(6) Assignment and compensation of coaches and
tutors;
(7) Provision of locker rooms, practice and
competitive facilities;
(8) Provision of medical and training
facilities and services;
(9) Provision of housing and dining facilities
and services;
(10) Publicity.
Unequal aggregate expenditures for members of each sex or
unequal expenditures for male and female teams if a
recipient operates or sponsors separate teams will not
constitute noncompliance with this section, but the
Assistant Secretary may consider the failure to provide
necessary funds for teams for one sex in assessing
equality of opportunity for members of each sex.
34 C.F.R. § 106.41(c).
B. Title IX Violation
Appellees argue brazenly that the evidence did not demonstrate
sufficient interest and ability in fast-pitch softball at LSU and
that, therefore, they cannot be liable under Title IX. The heart
of this contention is that an institution with no coach, no
facilities, no varsity team, no scholarships, and no recruiting in
a given sport must have on campus enough national-caliber athletes
to field a competitive varsity team in that sport before a court
can find sufficient interest and abilities to exist. It should go
without saying that adopting this criteria would eliminate an
effective accommodation claim by any plaintiff, at any time. In
any event, the district court’s finding that the requisite level of
interest existed is a finding of fact subject to review for clear
error. Having reviewed the record, we determine that the district
41
court did not clearly err because there was ample indication of an
interest by women in fast-pitch softball.
Appellees argue that the district court applied the wrong
legal framework to assess Appellees’ liability by placing the
evidentiary burden upon them to explain the reason for their 1983
decision to disband the women’s fast-pitch softball team. They
argue for de novo review of that decision, but we agree with
Appellants and the record supports that the district court
considered all the evidence of interest and ability at LSU before
concluding that Appellees were in violation of Title IX, not merely
the fact that LSU disbanded its team in 1983.
Appellees would have us hold that, although the student
population of LSU is 51% male and 49% female, the population
participating in athletics is 71% male and 29% female. Given this
breakdown, they argue that it is improper to consider
proportionality, because to do so would be to impose quotas, and
that the evidence shows that female students are less interested in
participating in sports than male students. The law suggests
otherwise. Title IX provides that the district court may consider
disproportionality when finding a Title IX violation:
This subsection shall not be construed to prevent the
consideration in any hearing or proceeding under this
chapter of statistical evidence tending to show that such
an imbalance exists with respect to the participation in
or receipt of the benefits of, any such program or
activity by the members of one sex.
20 U.S.C. § 1681(b). LSU’s hubris in advancing this argument is
remarkable, since of course fewer women participate in sports,
given the voluminous evidence that LSU has discriminated against
42
women in refusing to offer them comparable athletic opportunities
to those it offers its male students.
Nevertheless, Appellees persist in their argument by
suggesting that the district court’s reliance on the fact that LSU
fields a men’s baseball team as evidence of discrimination was
improper because there is no requirement that the same sports be
offered for both men and women and because LSU offers nine sports
for women and only seven for men. We find that it was indeed
proper for the district court to consider the fact that LSU fields
a men’s baseball team while declining to field a comparable team
for women despite evidence of interest and ability in fast-pitch
softball at LSU.
Appellees finally contest the district court’s determination
that LSU’s decision to add fast-pitch softball and soccer was not
for the purpose of encouraging women’s athletics. They challenge
the district court’s finding that LSU did not attempt to determine
the interest and ability level of its female student population,
contending that there is evidence in the record that shows that LSU
does analyze the interest level of its female student athletes.
Our review of the record demonstrates no such analysis on the part
of LSU. The proper analytical framework for assessing a Title IX
claim can be found in the Policy Interpretations to Title IX, which
require an analysis of the disproportionality between the
university’s male and female participation, the university’s
history of expanding opportunities for women, and whether the
university effectively accommodates the interests of its female
43
students. See Title IX of the Education Amendments of 1972, Policy
Interpretation, 44 Fed. Reg. 71,413, 71,414 (1979). Specifically,
the Policy Interpretation explains that Title IX’s application to
athletic programs covers three general subject areas: scholarships,
equivalent treatment, and equal accommodation. See id. at 71,415,
71, 417. As a matter of law, a Title IX violation “may be shown by
proof of a substantial violation in any one of the three major
areas of investigation set out in the Policy Interpretation.”
Roberts v. Colorado St. Univ., 814 F. Supp. 1507, 1511 (D. Colo.)
(emphasis added), aff’d in part & rev’d in part sub nom. Roberts v.
Colorado St. Bd. of Agric., 998 F.2d 824 (10th Cir. 1993). Credible
evidence supports the conclusion that LSU failed all three prongs.
Nevertheless, addressing merely the accommodation prong,
regulations adopted by the Department of Education in 1997 also
support the district court’s conclusions. See 34 C.F.R. §
106.37(c)(1) (providing that recipients that award athletic
scholarships must do so with a view toward reasonable opportunities
for such awards to members of both sexes); id. § 106.41(c)(1)
(declaring that “[a] recipient which operates or sponsors
interscholastic, intercollegiate, club or intramural athletics
shall provide equal athletic opportunity for members of both
sexes”); 45 C.F.R. § 86.41(c)(1) (requiring the consideration of
“[w]hether the selection of sports and levels of competition
effectively accommodate the interests and abilities of members of
both sexes”). Applying this framework, as the Supreme Court has
indicated that we should, see Martin v. Occupational Safety &
44
Health Review Comm’n, 449 U.S. 144, 150 (1991), the district court
correctly found that LSU did not have a history of expanding
women’s athletic programs and had not presented credible evidence
regarding the interests and abilities of its student body. These
findings were not clearly erroneous. See Anderson v. City of
Bessemer City, 470 U.S. 564, 575 (1985). Regardless, our
independent review of the record supports the district court’s
conclusion that Appellees failed to accommodate effectively its
female students. Proper evaluation of the district court’s
conclusion that Appellees violated Title IX required a careful
consideration of the evidence presented at trial. Based on that
review, we believe that the district court did not commit clear
error in its factual conclusions or legal error in the standards
that it applied.
C. Intentional Discrimination
The district court found that LSU had violated and continued
to violate the prescriptions of Title IX. The trial judge further
concluded that, notwithstanding this threshold finding, a Title IX
claimant must additionally prove intentional discrimination on the
part of a recipient before she may recover monetary damages.21 With
respect to the claims at issue in this case, the district court
considered the question to be a “very close one” but eventually
21
The district court held that damages could not be
recovered under Title IX unless the plaintiff proves that the
institution intentionally discriminated. Appellants do not argue
on appeal that damages should be available for unintentional
discrimination. We, therefore, need not and do not address the
accuracy of the district court’s holding in this regard.
45
held that LSU did not intentionally violate Title IX. 912 F. Supp.
at 918. Having carefully reviewed the trial record we hold that
the district court erred in its legal conclusion. We find that LSU
did intentionally violate Title IX, thus we reverse that ruling.
The district court stated that Appellees’ actions were not a
result of intentional discrimination but rather of “arrogant
ignorance, confusion regarding the practical requirements of the
law, and a remarkably outdated view of women and athletics which
created the byproduct of resistance to change.” Id. The district
court reasoned, inter alia, that, because Athletic Director Dean
testified that he believes that his “women’s athletics” program is
“wonderful” and because he was ignorant of the program’s state of
compliance with Title IX, Appellees did not intentionally
discriminate against women. See id. at 919.
The district court’s decision finding LSU to have
unintentionally violated Title IX by not effectively accommodating
their female student-athletes simply does not withstand scrutiny.
The district court stated that
Rather than taking notice of the enormous social change
which has taken place in the past 25 years, LSU has
continued to assume athletics is as it once was, a
traditionally male domain, and its women students did not
want to participate in athletics in the same manner and
to the same extent as its mean, and acted accordingly.
912 F. Supp. at 920 (emphasis added). If an institution makes a
decision not to provide equal athletic opportunities for its female
students because of paternalism and stereotypical assumptions about
their interests and abilities, that institution intended to treat
women differently because of their sex. Moreover, Appellees’
46
ignorance about whether they are violating Title IX does not excuse
their intentional decision not to accommodate effectively the
interests of their female students by not providing sufficient
athletic opportunities.
Apparently, Dean “believed his program to be so wonderful that
he invited an investigator from the Department of Education’s
Office of Civil Rights to visit LSU to evaluate the athletics
program’s compliance with Title IX.” Id. That representative’s
findings confirmed Dean's ignorance of the actual state of
compliance with Title IX by his athletic program, see id., but the
district court nonetheless reasoned that Dean’s testimony was
“credible” because “otherwise he would not have invited OCR to LSU
to assess the program.” Id. This conclusion ignores the fact
that, already on notice of potential violations, Dean and others
continued to adhere to deprecatory nomenclature when referring to
female athletes, refused to authorize additional sports for women,
and instead seemed content that the “women’s teams fielded [by LSU]
during the relevant time frame performed well in competition.” Id.
This assessment of the athletics program is not merely “arrogance,”
as the district court concluded, see id.; it belies an intent to
treat women differently in violation of the law.
It bears noting that the provisions of Title IX and its
attendant regulations are not merely hortatory; they exist, as does
any law, to sculpt the relevant playing field. Consequently,
Appellees’ alleged ignorance of the law does not preclude our
finding that LSU acted intentionally. Appellees need not have
47
intended to violate Title IX, but need only have intended to treat
women differently. Cf. Local 189, United Papermakers and
Paperworkers v. United States, 416 F.2d 980, 996 (5th Cir. 1969)
(holding that “intent” under Title VII requires only that “the
defendant meant to do what he did” and did not behave
“accident[ally]”); United States v. Koon, 34 F.3d 1416, 1449 (9th
Cir. 1994) (applying the same test to constitutional violations),
aff’d in part and rev’d in part on other grounds, 518 U.S. 81
(1996); United States v. Balistrieri, 981 F.2d 916, 936 (7th Cir.
1992) (holding that a defendant need not actually know that he is
violating the Fair Housing Act in order to be found to have
discriminated). Appellees’ outdated attitudes about women amply
demonstrate this intention to discriminate, and the district court
squarely found that LSU’s treatment of women athletes was
“remarkably outdated,” “archaic,” and “outmoded.” 912 F. Supp. at
918-20. Well-established Supreme Court precedent demonstrates that
archaic assumptions such as those firmly held by LSU constitute
intentional gender discrimination. See, e.g., United States v.
Virginia, 518 U.S. 515, 533 (1996) (holding that an institution’s
refusal to admit women is intentional gender discrimination in
violation of the Equal Protection Clause because, inter alia, of
“overbroad generalizations about the different talents, capacities,
or preferences of males and females”); Roberts v. United States
Jaycees, 468 U.S. 609, 625 (1984) (warning of the dangers posed by
gender discrimination based on “archaic and overbroad
assumptions”). We conclude that, because classifications based on
48
“archaic” assumptions are facially discriminatory, actions
resulting from an application of these attitudes constitutes
intentional discrimination.
In addition to the district court’s evaluation of LSU’s
attitudes as “archaic,” our independent evaluation of the record
and the evidence adduced at trial supports the conclusion that
Appellees persisted in a systematic, intentional, differential
treatment of women. For instance, in meetings to discuss the
possibility of a varsity women’s soccer team, Dean referred to Lisa
Ollar repeatedly as “honey,” “sweetie,” and “cutie” and negotiated
with her by stating that “I’d love to help a cute little girl like
you.” Dean also opined that soccer, a “more feminine sport,”
deserved consideration for varsity status because female soccer
players “would look cute running around in their soccer shorts.”
Dean, charismatically defending LSU’s chivalry, later told the
coach of the women’s club soccer team that he would not voluntarily
add more women’s sports at LSU but would “if forced to.” Among
many other examples, Karla Pineda testified that, when she met with
representatives of the Sports and Leisure Department to request the
implementation of an intramural fast-pitch softball team, she was
told that LSU would not sponsor fast-pitch softball because “the
women might get hurt.”
LSU perpetuated antiquated stereotypes and fashioned a grossly
discriminatory athletics system in many other ways. For example,
LSU appointed a low-level male athletics department staff member to
the position of “Senior Women’s Athletic Administrator,” which the
49
NCAA defines as the most senior women in an athletic department.
LSU consistently approved larger budgets for travel, personnel, and
training facilities for men’s teams versus women’s teams. The
university consistently compensated coaches of women’s team’s at a
rate far below that of its male team coaches.
Appellees have not even attempted to offer a legitimate,
nondiscriminatory explanation for this blatantly differential
treatment of male and female athletes, and men’s and women’s
athletics in general; they merely urge that “archaic” values do not
equate to intentional discrimination. Instead, LSU makes its
mantra the contention that it was either ignorant of or confused by
Title IX and thus cannot be held intentionally to have
discriminated. To support this dubious argument, LSU turns for
support to cases that deal with the standard for school liability
for sexual harassment under Title IX. A series of cases, crowned
by Supreme Court pronouncements in the last two terms, hold that
schools sued for harassment under Title IX must have actual
knowledge of the harassment and cannot be liable on a theory of
strict liability. See Gebser v. Lago Vista Indep. Sch. Dist., 524
U.S. 274, ___, 118 S. Ct. 1989, 1997 (1998); Rosa H. v. San Elizard
Indep. Sch. Dist., 106 F.3d 648, 652-53 (5th Cir. 1997); Canutillo
Indep. Sch. Dist. v. Leija, 101 F.3d 393, 398-400 (5th Cir. 1997).
Where the school has control over the harasser but acts with
deliberate indifference to the harassment or otherwise fails to
remedy it, liability will lie under Title IX. See Davis v. Monroe
County Bd. of Educ., 526 U.S. ___, ___, 119 S. Ct. 1661, 1671
50
(1999). LSU seeks to apply these holdings to the case at bar,
arguing that, before a finding of intentional discrimination is
warranted, Appellees must have been aware that they were
discriminating on the basis of sex by not effectively accommodating
the interests and abilities of its female student-athletes.
We conclude that the Title IX sexual harassment cases
discussed above have little relevance in determining whether LSU
intentionally discriminated here. Indeed, the most significant of
the sexual harassment holdings actually supports Appellants’
argument: LSU arguably acted with deliberate indifference to the
condition of its female athletics program. Cf. Davis, 526 U.S. at
___, 119 S. Ct. at 1671 (holding that deliberate indifference to
differential treatment between the genders can itself cause
discrimination to occur). In any event, the requirement in the
sexual harassment cases—that the academic institution have actual
knowledge of the sexual harassment—is not applicable for purposes
of determining whether an academic institution intentionally
discriminated on the basis of sex by denying females equal athletic
opportunity. In the sexual harassment cases, the issue was whether
the school district should be liable for the discriminatory acts of
harassment committed by its employees. These cases hold that
school districts must themselves have actual discriminatory intent
before they will be liable for the discriminatory acts of their
employees. In the instant case, it is the institution itself that
is discriminating. The proper test is not whether it knew of or is
responsible for the actions of others, but is whether Appellees
51
intended to treat women differently on the basis of their sex by
providing them unequal athletic opportunity, and, as we noted
above, we are convinced that they did. Our review of the record
convinces us that an intent to discriminate, albeit one motivated
by chauvinist notions as opposed to one fueled by enmity, drove
LSU’s decisions regarding athletic opportunities for its female
students.
The judgment of the district court is REVERSED and the case
REMANDED with instruction to proceed to Stage II.
IV. Compliance Plan
Appellees challenge the district court’s Compliance Plan
requirements, as they pertain to soccer. LSU argues that, because
the plaintiffs who played soccer lacked eligibility by the time of
trial, making their claims moot, the Compliance Plan requirements
only should have pertained to fast-pitch softball. Appellees also
challenge the requirement that they gauge the athletic interests of
incoming students through surveys and like materials.
Appellants argue that the relief granted by the district court
was not overbroad because the injury suffered by them was not
merely the absence of a women’s varsity fast-pitch softball team
but Appellees’ failure to provide equal athletic opportunity to its
female students. They also argue that the requirement that
Appellees implement procedures to gauge the interest levels of
their students is necessary to promote effective accommodation
because, in order effectively to accommodate student interests, the
university must know what those interests are. They argue that the
52
purpose of Title IX is to provide broad-based equality in
federally-funded educational programs and not merely to provide
relief to individual plaintiffs.
We find this issue nonjusticiable at this time. In Part
II.A., we determined that the district court abused its discretion
in decertifying the provisionally certified class. We remanded
with instructions to consider further final certification of the
putative class. In part II.C., we determined that the issue of
injunctive relief is moot as to the named plaintiffs. A named
plaintiff whose claim has become moot cannot press the merits of an
issue on behalf of a class when that class has not properly been
certified. See Geraghty, 445 U.S. at 400 n.7, 404.22
To maintain the status quo by leaving the district court’s
injunctive order in place would work an injustice to Appellees,
who, through no fault of their own, would be forced to comply with
an order the merits of which they are powerless to contest. “A
party who seeks review of the merits of an adverse ruling, but is
frustrated by the vagaries of circumstance, ought not in fairness
be forced to acquiesce in the judgment. The same is true when
mootness results from unilateral action of the party who prevailed
22
We note that, although we do not reach the merits of the
district court’s Compliance Plan requirements, we do not, at
first blush, find that portion of the Compliance Plan dealing
with the evaluation and assessment of student interests and
abilities problematic. However, while we have not studied the
matter closely, we are unclear how the district court justified
granting relief with regard to women’s varsity soccer when it
determined that no plaintiff had standing to challenge LSU’s
failure to field such a team. Of course, this concern may
disappear after the district court reaches the merits of the
Pederson Plaintiffs’ issues on remand.
53
below.” U.S. Bancorp Mortgage Co. v. Bonner Mall Partnership, 513
U.S. 18, 25 (1994). It cannot reasonably be argued that Appellees
brought about mootness in this case by causing Appellants to be
graduated. They were, it seems, “frustrated by the vagaries of
circumstance.” In such instances it is the custom of appellate
courts to vacate the lower court’s injunctive order, and we follow
that custom here. See id. at 22-23, United States v. Munsingwear,
Inc., 340 U.S. 36, 39-40 (1950); Karcher v. May, 484 U.S. 72, 82-83
(1987). On remand, however, should the district court finally
certify a class, it is free to reinstate so much of its order and
subsequent rulings as is it deems necessary under the then-existing
circumstances.
VI
The numerous holdings and dispositions included in this
opinion warrant iteration:
1) We HOLD that this suit is not barred by the Eleventh
Amendment.
2) We HOLD that to establish standing under a Title IX
effective accommodation claim of the sort presented here, a party
need only demonstrate that she is able and ready to compete for a
position on the unfielded team.
3) With regard to Appellants, we REVERSE the district court’s
ruling that the Pederson Plaintiffs lacked standing to challenge
54
LSU’s failure to field a varsity soccer team and REVERSE its
subsequent judgment dismissing their claims with prejudice. We
AFFIRM the district court’s ruling that Appellants lacked standing
to challenge the entire LSU varsity program. We HOLD that
Appellants’ damages claims, and the questions of Title IX violation
and intentional discrimination underlying them, are not moot as to
the named Appellants. We further HOLD that the issue of injunctive
relief is moot as to the named Appellants. We REMAND to the
district court to determine the merits of the Pederson Plaintiffs’
claims before proceeding to Stage II of trial, the damages phase.
4) With regard to the putative class, we HOLD that the
numerosity prong of Rule 23(a) was satisfied and a class was
necessary, if any such requirement exists. Accordingly, we VACATE
the district court’s decertification order, REVERSE the district
court’s judgment dismissing the claims for class relief, and REMAND
with instructions to consider further the certification of the
putative class in light of this opinion. We HOLD that the issue of
injunctive relief is not moot as to the putative class.
5) With regard to the merit issues, we AFFIRM the district
court’s judgment that Appellees violated Title IX. We REVERSE the
district court’s finding that Appellees did not intentionally
discriminate, VACATE its subsequent judgment denying the Pineda
Plaintiffs’ damages claims, and REMAND to the district court with
instructions to proceed to Stage II of trial. We HOLD that we lack
55
jurisdiction to address the district court’s injunctive relief
order and VACATE that order, leaving the district court free to
reinstate so much of the order and subsequent rulings as it deems
necessary, if and when a class is finally certified.
Appellants do not argue any points of error regarding the
orders appealed from in Nos. 94-30680 and 95-30777; therefore, Nos.
94-30680 and 95-30777 are DISMISSED. We AFFIRM the order appealed
from in No. 97-30427. With regard to Nos. 97-30719 and 97-30722,
we VACATE the order approving LSU’s Compliance Plan with
instructions. With regard to the final judgment appealed from in
97-30744 and 97-30781, and the opinion appealed from in 96-30310,
we AFFIRM in part, REVERSE in part, VACATE in part, and REMAND in
part with instructions. All motions carried with the case are
DENIED. Each party shall bear its own costs.
56