ON PETITION FOR REHEARING AND SUGGESTION FOR REHEARING EN BANC
(Opinion Jan. 27, 2000, 5th Cir., 201 F.3d 388)
Before KING, Chief Judge, STEWART, Circuit Judge, and LITTLE, District Judge.
CARL E. STEWART, Circuit Judge:
The original opinion in this matter was issued by the panel on January 27, 2000. A petition for panel rehearing and a petition for rehearing en banc are currently pending before the court. No active judge of this court having requested a poll, the petition for en banc rehearing is DENIED. The petition for panel rehearing is GRANTED to the extent that we VACATE our previous opinion and replace it with this one. In all other respects, the petition for rehearing is DENIED.
We must today determine whether the largest public university in Louisiana has discriminated against women under Title IX in the 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.
Subsequently, plaintiffs Cindy and Karla Pineda ("Pineda Plaintiffs" and, together with Pederson Plaintiffs, "Appellants") sought to intervene in the original action.
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
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 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, 116 S.Ct. 1114, 134 L.Ed.2d 252 (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
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.
A. Class Decertification
We review a district court's class certification decisions for abuse of discretion.
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 this litigation and who seek or have sought to participate and or were deterred from participating in varsity intercollegiate athletics funded by 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."
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.
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
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 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.
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
It has been over four years since the district court provisionally certified the class at issue. While we have 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.
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 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:
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, 100 S.Ct. 1202, 63 L.Ed.2d 479 (1980) (quoting Monaghan, Constitutional Adjudication: The Who and When, 82 YALE L.J. 1363, 1384 (1973)).
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 has no bearing on the particular litigant's standing at the time the suit was filed.
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 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
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:
Northeastern Florida, 508 U.S. at 666, 113 S.Ct. 2297 (citations omitted). Violating Title IX by failing to field women's varsity teams that 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
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.
Appellees insist, at several points throughout their brief, that issues presented
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.
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:
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 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
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. 312, 316, 94 S.Ct. 1704, 40 L.Ed.2d 164 (1974) (quoting North Carolina v. Rice, 404 U.S. 244, 246, 92 S.Ct. 402, 30 L.Ed.2d 413 (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, 94 S.Ct. 1704; 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
County of Los Angeles v. Davis, 440 U.S. 625, 631, 99 S.Ct. 1379, 59 L.Ed.2d 642 (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, 73 S.Ct. 894, 97 L.Ed. 1303 (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
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 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 Intervener, 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 institutions, or (3) jurisdiction properly lies under the doctrine of Ex Parte Young. We find that LSU waived its Eleventh Amendment sovereign immunity by accepting federal funds under Title IX.
42 U.S.C. § 2000d-7(a)(1) provides that: "[a] State shall not be immune under the Eleventh Amendment of the Constitution of the United States from suit in Federal court for a violation of . . . title IX of the Education Amendments of 1972." In Litman v. George Mason University, 186 F.3d 544 (4th Cir.1999), cert. denied, ___ U.S. ___, 120 S.Ct. 1220, 145 L.Ed.2d 1120 (2000), the Court of Appeals for the Fourth Circuit concluded that, in enacting § 2000d-7 Congress "permissibly conditioned [a state university's] receipt of Title IX funds on an unambiguous waiver of [the university's] Eleventh Amendment immunity, and that, in accepting such funding, [the university] has consented to litigate [private suits] in federal court." Id. at 555. The test for finding such waiver "is a stringent one," College Sav. Bank v. Florida Prepaid Postsecondary Educ. Expense Bd., 527 U.S. 666, 119 S.Ct. 2219, 2226, 144 L.Ed.2d 605 (1999) (quoting Atascadero State Hosp. v. Scanlon, 473 U.S. 234, 241, 105 S.Ct. 3142, 87 L.Ed.2d 171(1985)), and the Fourth Circuit in Litman conducted a careful analysis under the relevant inquiry. We cannot improve on the work done by
LSU makes several arguments, similar to the arguments put forth by the defendants in Litman, as to why it did not waive their Eleventh Amendment immunity by accepting Title IX funding. LSU argues: (1) that 42 U.S.C. § 2000d-7(a)(1) does not contain the word "waiver", and that the state may have logically disregarded the language of this statute as an attempt to abrogate its sovereign immunity; and (2) that the Supreme Court's decision in Seminole Tribe v. Florida, 517 U.S. 44, 116 S.Ct. 1114, 134 L.Ed.2d 252 (1996), rejected the idea of a state "constructively waiving" its Eleventh Amendment immunity. We will address each of these arguments in turn.
First, we will consider whether 42 U.S.C. § 2000d-7(a)(1), although it does not use the words "waiver" or "condition", unambiguously provides that a State by agreeing to receive federal educational funds under Title IX has waived sovereign immunity. A state may "waive its immunity by voluntarily participating in federal spending programs when Congress expresses `a clear intent to condition participation in the programs . . . on a State's consent to waive its constitutional immunity.'" Litman, 186 F.3d at 550 (quoting Atascadero State Hosp., 473 U.S. at 247, 105 S.Ct. 3142). Title IX as a federal spending program "operates much in the nature of a contract: in return for federal funds, the States agree to comply with federally imposed conditions." Id. at 551; see also Rosa H. v. San Elizario Independent School District, 106 F.3d 648, 654 (5th Cir.1997) (stating that Title IX is Spending Clause legislation, and as a statute enacted under the Spending Clause, Title IX generates liability when the recipient of federal funds agrees to assume liability) The Supreme Court has noted that Congress in enacting Title IX "condition[ed] an offer of federal funding on a promise by the recipient not to discriminate, in what amounts essentially to a contract between the Government and the recipient of funds." Gebser v. Lago Vista Indep. School Dist., 524 U.S. 274, 286, 118 S.Ct. 1989, 1997, 141 L.Ed.2d 277 (1998); Litman, 186 F.3d at 551-552. Thus, based on the above reasoning we find that in 42 U.S.C. § 2000d-7(a)(a) Congress has successfully codified a statute which clearly, unambiguously, and unequivocally conditions receipt of federal funds under Title IX on the State's waiver of Eleventh Amendment Immunity. See Litman, 186 F.3d at 554.
LSU argues that even if 42 U.S.C. § 2000d-7(a)(1) is intended to cause waiver of sovereign immunity, this type of "conditional waiver" argument is at odds with the Supreme Court's decision in Seminole Tribe. We do not find this argument persuasive. As the Fourth Circuit reasoned in Litman:
Id. at 556 (quoting Seminole Tribe, 517 U.S. at 65, 116 S.Ct. 1114). We conclude that in accepting federal funds under Title IX LSU waived its Eleventh Amendment sovereign immunity.
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.
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, 102 S.Ct. 1912, 72 L.Ed.2d 299 (1982). Patterned after Title VI of the Civil Rights Act of 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:
§ 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, 102 S.Ct. 1912. 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:
§ 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, admissions, textbooks, and employment.
34 C.F.R. § 106.41(a) (1999). The regulations further provide that
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 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:
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 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
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 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 & Health Review Comm'n, 499 U.S. 144, 150, 111 S.Ct. 1171, 113 L.Ed.2d 117 (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, 105 S.Ct. 1504, 84 L.Ed.2d 518 (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
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 by-product 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
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' 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 indicates 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
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 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
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, 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 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
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, 100 S.Ct. 1202.
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 below." U.S. Bancorp Mortgage Co. v. Bonner Mall Partnership, 513 U.S. 18, 25, 115 S.Ct. 386, 130 L.Ed.2d 233 (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, 115 S.Ct. 386, United States v. Munsingwear, Inc., 340 U.S. 36, 39-40, 71 S.Ct. 104, 95 L.Ed. 36 (1950); Karcher v. May, 484 U.S. 72, 82-83, 108 S.Ct. 388, 98 L.Ed.2d 327 (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.
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 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.
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 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.
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.
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.
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, 100 S.Ct. 1202.
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, 525 U.S. 459, 119 S.Ct. 924, 929, 142 L.Ed.2d 929 (1999).