AMY COHEN, ET AL., Plaintiffs - Appellees, v. BROWN UNIVERSITY, ET AL.,
Defendants - Appellants.
No. 95-2205
UNITED STATES COURT OF APPEALS FOR THE FIRST CIRCUIT
101 F.3d 155; 1996 U.S. App. LEXIS 30192; 45 Fed. R. Evid. Serv. (Callaghan) 1369
November 21, 1996, Decided
SUBSEQUENT HISTORY:
As Amended. Certiorari Denied April 21, 1997, Reported at: 1997 U.S. LEXIS 2554.
PRIOR HISTORY: APPEAL FROM THE UNITED STATES DISTRICT COURT FOR
THE DISTRICT OF RHODE ISLAND. Hon. Raymond J. Pettine, Senior U.S. District Judge.
JUDGES: Before Torruella, Chief Judge, Bownes, Senior Circuit Judge, and Stahl, Circuit
Judge. TORRUELLA, Chief Judge Dissents.
OPINIONBY: BOWNES
This is a class action lawsuit charging Brown University, its president, and its athletics director
(collectively "Brown") with discrimination against women in the operation of its intercollegiate
athletics program, in violation of Title IX of the Education Amendments of 1972, 20 U.S.C. §§
1681-1688 ("Title IX"), and its implementing regulations, 34 C.F.R. §§ 106.1-106.71. The
plaintiff class comprises all present, future, and potential Brown University women students
who participate, seek to participate, and/or are deterred from participating in intercollegiate
athletics funded by Brown.
This suit was initiated in response to the demotion in May 1991 of Brown's women's
gymnastics and volleyball teams from university-funded varsity status to donor-funded varsity
status. Contemporaneously, Brown demoted two men's teams, water polo and golf, from
university-funded to donor-funded varsity status. As a consequence of these demotions, all four
teams lost, not only their university funding, but most of the support and privileges that
accompany university-funded varsity status at Brown.
Prior to the trial on the merits that gave rise to this appeal, the district court granted plaintiffs'
motion for class certification and denied defendants' motion to dismiss. Subsequently, after
hearing fourteen days of testimony, the district court granted plaintiffs' motion for a
preliminary injunction, ordering, inter alia, that the women's gymnastics and volleyball teams
be reinstated to university-funded varsity status, and prohibiting Brown from eliminating or
reducing the status or funding of any existing women's intercollegiate varsity team until the
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case was resolved on the merits... A panel of this court affirmed the district court's decision
granting a preliminary injunction to the plaintiffs. Cohen v. Brown Univ., 991 F.2d 888, 907
(1st Cir. 1993) ("Cohen II"). In so doing, we upheld the district court's analysis and ruled that
an institution violates Title IX if it ineffectively accommodates its students' interests and
abilities in athletics under 34 C.F.R. § 106.41(c)(1) (1995), regardless of its performance with
respect to other Title IX areas.
On remand, the district court determined after a lengthy bench trial that Brown's intercollegiate
athletics program violates Title IX and its supporting regulations. Cohen v. Brown Univ., 879
F. Supp. 185, 214 (D.R.I. 1995) ("Cohen III"). The district court ordered Brown to submit
within 120 days a comprehensive plan for complying with Title IX, but stayed that portion of
the order pending appeal. The district court subsequently issued a modified order, requiring
Brown to submit a compliance plan within 60 days. Modified Order of May 4, 1995. This
action was taken to ensure that the Order was "final" for purposes of this court's jurisdiction,
and to expedite the appeal process. Id. Finding that Brown's proposed compliance plan was not
comprehensive and that it failed to comply with the opinion and order of Cohen III, the district
court rejected the plan and ordered in its place specific relief consistent with Brown's stated
objectives in formulating the plan... The court's remedial order required Brown to elevate and
maintain at university-funded varsity status the women's gymnastics, fencing, skiing, and water
polo teams. The district court's decision to fashion specific relief was made, in part, to avoid
protracted litigation over the compliance plan and to expedite the appeal on the issue of
liability.. The district court entered final judgment on September 1, 1995, and on September 27,
1995, denied Brown's motion for additional findings of fact and to amend the judgment. This
appeal followed...
We find no error in the district court's factual findings or in its interpretation and application of
the law in determining that Brown violated Title IX in the operation of its intercollegiate
athletics program. We therefore affirm in all respects the district court's analysis and rulings on
the issue of liability. We do, however, find error in the district court's award of specific relief
and therefore remand the case to the district court for reconsideration of the remedy in light of
this opinion.
I.
....As a Division I institution within the National Collegiate Athletic Association ("NCAA")
with respect to all sports but football, Brown participates at the highest level of NCAA
competition. Brown operates a two-tiered intercollegiate athletics program with respect to
funding: although Brown provides the financial resources required to maintain its universityfunded varsity teams, donor-funded varsity athletes must themselves raise the funds necessary
to support their teams through private donations. The district court noted that the four
demoted teams were eligible for NCAA competition, provided that they were able to raise the
funds necessary to maintain a sufficient level of competitiveness, and provided that they
continued to comply with NCAA requirements. The court found, however, that it is difficult
for donor-funded varsity athletes to maintain a level of competitiveness commensurate with
their abilities and that these athletes operate at a competitive disadvantage in comparison to
university-funded varsity athletes. For example, the district court found that some schools are
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reluctant to include donor-funded teams in their varsity schedules and that donor-funded teams
are unable to obtain varsity-level coaching, recruits, and funds for travel, equipment, and postseason competition.
Brown's decision to demote the women's volleyball and gymnastics teams and the men's water
polo and golf teams from university-funded varsity status was apparently made in response to a
university-wide cost-cutting directive. The district court found that Brown saved $ 62,028 by
demoting the women's teams and $ 15,795 by demoting the men's teams, but that the demotions
"did not appreciably affect the athletic participation gender ratio."
Plaintiffs alleged that, at the time of the demotions, the men students at Brown already enjoyed
the benefits of a disproportionately large share of both the university resources allocated to
athletics and the intercollegiate participation opportunities afforded to student athletes. Thus,
plaintiffs contended, what appeared to be the even-handed demotions of two men's and two
women's teams, in fact, perpetuated Brown's discriminatory treatment of women in the
administration of its intercollegiate athletics program. In the course of the preliminary
injunction hearing, the district court found that, in the academic year 1990-91, Brown funded
31 intercollegiate varsity teams, 16 men's teams and 15 women's teams, , and that, of the 894
undergraduate students competing on these teams, 63.3% (566) were men and 36.7% (328)
were women. During the same academic year, Brown's undergraduate enrollment comprised
52.4% (2,951) men and 47.6% (2,683) women. Id. The district court also summarized the
history of athletics at Brown, finding, inter alia, that, while nearly all of the men's varsity teams
were established before 1927, virtually all of the women's varsity teams were created between
1971 and 1977, after Brown's merger with Pembroke College. The only women's varsity team
created after this period was winter track, in 1982.
In the course of the trial on the merits, the district court found that, in 1993-94, there were 897
students participating in intercollegiate varsity athletics, of which 61.87% (555) were men and
38.13% (342) were women. During the same period, Brown's undergraduate enrollment
comprised 5,722 students, of which 48.86% (2,796) were men and 51.14% (2,926) were
women. The district court found that, in 1993-94, Brown's intercollegiate athletics program
consisted of 32 teams, 16 men's teams and 16 women's teams. Id. Of the university-funded
teams, 12 were men's teams and 13 were women's teams; of the donor-funded teams, three
were women's teams and four were men's teams. Id. At the time of trial, Brown offered 479
university-funded varsity positions for men, as compared to 312 for women; and 76 donorfunded varsity positions for men, as compared to 30 for women. In 1993-94, then, Brown's
varsity program -- including both university- and donor-funded sports-- afforded over 200 more
positions for men than for women. Accordingly, the district court found that Brown maintained
a 13.01% disparity between female participation in intercollegiate athletics and female student
enrollment, and that "although the number of varsity sports offered to men and women are
equal, the selection of sports offered to each gender generates far more individual positions for
male athletes than for female athletes,"
In computing these figures, the district court counted as participants in intercollegiate athletics
for purposes of Title IX analysis those athletes who were members of varsity teams for the
majority of the last complete season. Brown argued at trial that "there is no consistent measure
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of actual participation rates because team size varies throughout the athletic season," and that
"there is no consistent measure of actual participation rates because there are alternative
definitions of 'participant' that yield very different participation totals." Reasoning that "where
both the athlete and coach determine that there is a place on the team for a student, it is not for
this Court to second-guess their judgment and impose its own, or anyone else's, definition of a
valuable or genuine varsity experience," the district court concluded that "every varsity team
member is therefore a varsity 'participant.'" Thus, the district court held that
the "participation opportunities" offered by an institution are measured by
counting the actual participants on intercollegiate teams. The number of
participants in Brown's varsity athletic program accurately reflects the number
of participation opportunities Brown offers because the University, through its
practices "predetermines" the number of athletic positions available to each
gender.
The district court found from extensive testimony that the donor-funded women's gymnastics,
women's fencing and women's ski teams, as well as at least one women's club team, the water
polo team, had demonstrated the interest and ability to compete at the top varsity level and
would benefit from university funding.
The district court did not find that full and effective accommodation of the athletics interests
and abilities of Brown's female students would disadvantage Brown's male students.
II.
Title IX provides that "no person in the United States shall, on the basis of sex, be excluded
from participation in, be denied the benefits of, or be subjected to discrimination under any
education program or activity receiving Federal financial assistance." 20 U.S.C.A. § 1681(a)
(West 1990). As a private institution that receives federal financial assistance, Brown is
required to comply with Title IX.
Title IX also specifies that its prohibition against gender discrimination shall not "be interpreted
to require any educational institution to grant preferential or disparate treatment to the members
of one sex on account of an imbalance which may exist" between the total number or
percentage of persons of that sex participating in any federally supported program or activity,
and "the total number or percentage of persons of that sex in any community, State, section, or
other area." 20 U.S.C.A. § 1681(b) (West 1990). Subsection (b) also provides, however, that it
"shall not be construed to prevent the consideration in any . . . 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."
Applying § 1681(b), the prior panel held that Title IX "does not mandate strict numerical
equality between the gender balance of a college's athletic program and the gender balance of
its student body." Cohen II, 991 F.2d at 894. The panel explained that, while evidence of a
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gender-based disparity in an institution's athletics program is relevant to a determination of
noncompliance, "a court assessing Title IX compliance may not find a violation solely because
there is a disparity between the gender composition of an educational institution's student
constituency, on the one hand, and its athletic programs, on the other hand....".
In the first appeal, this court held that an institution's failure effectively to accommodate both
genders under § 106.41(c)(1) is sufficient to establish a violation of Title IX...
In 1978, several years after the promulgation of the regulations, OCR published a proposed
"Policy Interpretation," the purpose of which was to clarify the obligations of federal aid
recipients under Title IX to provide equal opportunities in athletics programs.... At issue in this
appeal is the proper interpretation of the first of these, the so-called three-part test, which
inquires as follows:
(1) Whether intercollegiate level participation opportunities for male and female
students are provided in numbers substantially proportionate to their respective
enrollments; or
(2) Where the members of one sex have been and are underrepresented among
intercollegiate athletes, whether the institution can show a history and
continuing practice of program expansion which is demonstrably responsive to
the developing interest and abilities of the members of that sex; or
(3) Where the members of one sex are underrepresented among intercollegiate
athletes, and the institution cannot show a continuing practice of program
expansion such as that cited above, whether it can be demonstrated that the
interests and abilities of the members of that sex have been fully and effectively
accommodated by the present program.
The district court held that, "because Brown maintains a 13.01% disparity between female
participation in intercollegiate athletics and female student enrollment, it cannot gain the
protection of prong one." Nor did Brown satisfy prong two. While acknowledging that Brown
"has an impressive history of program expansion," the district court found that Brown failed to
demonstrate that it has "maintained a continuing practice of intercollegiate program expansion
for women, the underrepresented sex.". The court noted further that, because merely reducing
program offerings to the overrepresented gender does not constitute program expansion for the
underrepresented gender, the fact that Brown has eliminated or demoted several men's teams
does not amount to a continuing practice of program expansion for women. As to prong three,
the district court found that Brown had not "fully and effectively accommodated the interest
and ability of the underrepresented sex 'to the extent necessary to provide equal opportunity in
the selection of sports and levels of competition available to members of both sexes...'
III.
In Cohen II, a panel of this court squarely rejected Brown's constitutional and statutory
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challenges to the Policy Interpretation's three-part test, upholding the district court's
interpretation of the Title IX framework applicable to intercollegiate athletics,, as well as its
grant of a preliminary injunction in favor of the plaintiffs, Despite the fact that it presents
substantially the same legal arguments in this appeal as were raised and decided in the prior
appeal, Brown asserts that there is "no impediment" to this court's plenary review of these
decided issues. We disagree..
[Discussion of Brown’s request that the court reconsider its decision in Cohen II.]
Finding Brown's bare assertions to be unpersuasive, we decline the invitation to this court to
"change its mind." The precedent established by the prior panel is not clearly erroneous; it is
the law of this case and the law of this circuit.
IV.
Brown contends that the district court misconstrued and misapplied the three-part test.
Specifically, Brown argues that the district court's interpretation and application of the test is
irreconcilable with the statute, the regulation, and the agency's interpretation of the law, and
effectively renders Title IX an "affirmative action statute" that mandates preferential treatment
for women by imposing quotas in excess of women's relative interests and abilities in athletics.
Brown asserts, in the alternative, that if the district court properly construed the test, then the
test itself violates Title IX and the United States Constitution.
We emphasize two points at the outset. First, notwithstanding Brown's persistent invocation of
the inflammatory terms "affirmative action," "preference," and "quota," this is not an
affirmative action case. Second, Brown's efforts to evade the controlling authority of Cohen II
by recasting its core legal arguments as challenges to the "district court's interpretation" of the
law are unavailing; the primary arguments raised here have already been litigated and decided
adversely to Brown in the prior appeal.
A.
Brown's talismanic incantation of "affirmative action" has no legal application to this case and
is not helpful to Brown's cause. While "affirmative action" may have different connotations as
a matter of politics, as a matter of law, its meaning is more circumscribed. True affirmative
action cases have historically involved a voluntary undertaking to remedy discrimination (as in
a program implemented by a governmental body, or by a private employer or institution), by
means of specific group-based preferences or numerical goals, and a specific timetable for
achieving those goals...
Title IX is not an affirmative action statute; it is an anti-discrimination statute, modeled
explicitly after another anti-discrimination statute, Title VI. No aspect of the Title IX regime at
issue in this case -- inclusive of the statute, the relevant regulation, and the pertinent agency
documents -- mandates gender-based preferences or quotas, or specific timetables for
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implementing numerical goals.
Like other anti-discrimination statutory schemes, the Title IX regime permits affirmative
action...
From the mere fact that a remedy flowing from a judicial determination of discrimination is
gender-conscious, it does not follow that the remedy constitutes "affirmative action." Nor does
a "reverse discrimination" claim arise every time an anti-discrimination statute is enforced.
While some gender-conscious relief may adversely impact one gender -- a fact that has not
been demonstrated in this case -- that alone would not make the relief "affirmative action" or
the consequence of that relief "reverse discrimination." To the contrary, race- and genderconscious remedies are both appropriate and constitutionally permissible under a federal antidiscrimination regime, although such remedial measures are still subject to equal protection
review...
B.
[Additional discussion of the three-part test.]
C.
As previously noted, the district court held that, for purposes of the three-part test, the
intercollegiate athletics participation opportunities offered by an institution are properly
measured by counting the number of actual participants on intercollegiate teams. The Policy
Interpretation was designed specifically for intercollegiate athletics. Because the athletics
regulation distinguishes between club sports and intercollegiate sports, under the Policy
Interpretation, "club teams will not be considered to be intercollegiate teams except in those
instances where they regularly participate at the varsity level." Accordingly, the district court
excluded club varsity teams from the definition of "intercollegiate teams" and, therefore, from
the calculation of participation opportunities, because the evidence was inadequate to show that
the club teams regularly participated in varsity competition...
D.
Brown contends that an athletics program equally accommodates both genders and complies
with Title IX if it accommodates the relative interests and abilities of its male and female
students. This "relative interests" approach posits that an institution satisfies prong three of the
three-part test by meeting the interests and abilities of the underrepresented gender only to the
extent that it meets the interests and abilities of the overrepresented gender
Brown maintains that the district court's decision imposes upon universities the obligation to
engage in preferential treatment by requiring quotas in excess of women's relative interests and
abilities. With respect to prong three, Brown asserts that the district court's interpretation of the
word "fully" "requires universities to favor women's teams and treat them better than men's
[teams]. . . . forces them to eliminate or cap men's teams. . . . [and] forces universities to impose
athletic quotas in excess of relative interests and abilities."
The prior panel considered and rejected Brown's approach, observing that "Brown reads the
'full' out of the duty to accommodate 'fully and effectively.'" Under Cohen II's controlling
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interpretation, prong three "demands not merely some accommodation, but full and effective
accommodation. If there is sufficient interest and ability among members of the statistically
underrepresented gender, not slaked by existing programs, an institution necessarily fails this
prong of the test."
Brown's interpretation of full and effective accommodation is "simply not the law." We agree
with the prior panel and the district court that Brown's relative interests approach "cannot
withstand scrutiny on either legal or policy grounds," because it "disadvantages women and
undermines the remedial purposes of Title IX by limiting required program expansion for the
underrepresented sex to the status quo level of relative interests." After Cohen II, it cannot be
maintained that the relative interests approach is compatible with Title IX's equal
accommodation principle as it has been interpreted by this circuit.
...Brown simply ignores the fact that it is required to accommodate fully the interests and
abilities of the underrepresented gender, not because the three-part test mandates preferential
treatment for women ab initio, but because Brown has been found (under prong one) to have
allocated its athletics participation opportunities so as to create a significant gender-based
disparity with respect to these opportunities, and has failed (under prong two) to show a history
and continuing practice of expansion of opportunities for the underrepresented gender. Brown's
interpretation conflates prongs one and three and distorts the three-part test by reducing it to an
abstract, mechanical determination of strict numerical proportionality. In short, Brown treats
the three-part test for compliance as a one-part test for strict liability.
Brown also fails to recognize that Title IX's remedial focus is, quite properly, not on the
overrepresented gender, but on the underrepresented gender; in this case, women. Title IX and
its implementing regulations protect the class for whose special benefit the statute was enacted.
It is women and not men who have historically and who continue to be underrepresented in
sports, not only at Brown, but at universities nationwide...
The prior panel held that "the fact that the overrepresented gender is less than fully
accommodated will not, in and of itself, excuse a shortfall in the provision of opportunities for
the underrepresented gender." Instead, the law requires that, absent a demonstration of
continuing program expansion for the underrepresented gender under prong two of the threepart test, an institution must either provide opportunities in proportion to the gender
composition of the student body so as to satisfy prong one, or fully accommodate the interests
and abilities of athletes of the underrepresented gender under prong three. Id. In other words,
If a school, like Brown, eschews the first two benchmarks of the
accommodation test, electing to stray from substantial proportionality and
failing to march uninterruptedly in the direction of equal athletic opportunity, it
must comply with the third benchmark. To do so, the school must fully and
effectively accommodate the underrepresented gender's interests and abilities,
even if that requires it to give the underrepresented gender (in this case, women)
what amounts to a larger slice of a shrinking athletic-opportunity pie.
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We think it clear that neither the Title IX framework nor the district court's interpretation of it
mandates a gender-based quota scheme. In our view, it is Brown's relative interests approach to
the three-part test, rather than the district court's interpretation, that contravenes the language
and purpose of the test and of the statute itself. To adopt the relative interests approach would
be, not only to overrule Cohen II, but to rewrite the enforcing agency's interpretation of its own
regulation so as to incorporate an entirely different standard for Title IX compliance. This
relative interests standard would entrench and fix by law the significant gender-based disparity
in athletics opportunities found by the district court to exist at Brown, a finding we have held to
be not clearly erroneous. According to Brown's relative interests interpretation of the equal
accommodation principle, the gender-based disparity in athletics participation opportunities at
Brown is due to a lack of interest on the part of its female students, rather than to
discrimination, and any attempt to remedy the disparity is, by definition, an unlawful quota.
This approach is entirely contrary to "Congress's unmistakably clear mandate that educational
institutions not use federal monies to perpetuate gender-based discrimination," and makes it
virtually impossible to effectuate Congress's intent to eliminate sex discrimination in
intercollegiate athletics.
E.
[Discussion of whether the district court’s application of the three-part test creates a genderbased quota system.]
F.
Brown has contended throughout this litigation that the significant disparity in athletics
opportunities for men and women at Brown is the result of a gender-based differential in the
level of interest in sports and that the district court's application of the three-part test requires
universities to provide athletics opportunities for women to an extent that exceeds their relative
interests and abilities in sports. Thus, at the heart of this litigation is the question whether Title
IX permits Brown to deny its female students equal opportunity to participate in sports, based
upon its unproven assertion that the district court's finding of a significant disparity in athletics
opportunities for male and female students reflects, not discrimination in Brown's
intercollegiate athletics program, but a lack of interest on the part of its female students that is
unrelated to a lack of opportunities.
We view Brown's argument that women are less interested than men in participating in
intercollegiate athletics, as well as its conclusion that institutions should be required to
accommodate the interests and abilities of its female students only to the extent that it
accommodates the interests and abilities of its male students, with great suspicion. To assert
that Title IX permits institutions to provide fewer athletics participation opportunities for
women than for men, based upon the premise that women are less interested in sports than are
men, is (among other things) to ignore the fact that Title IX was enacted in order to remedy
discrimination that results from stereotyped notions of women's interests and abilities.
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Interest and ability rarely develop in a vacuum; they evolve as a function of opportunity and
experience. The Policy Interpretation recognizes that women's lower rate of participation in
athletics reflects women's historical lack of opportunities to participate in sports...
Moreover, the Supreme Court has repeatedly condemned gender-based discrimination based
upon "archaic and overbroad generalizations" about women... The Court has been especially
critical of the use of statistical evidence offered to prove generalized, stereotypical notions
about men and women. For example, in holding that Oklahoma's 3.2% beer statute invidiously
discriminated against males 18-20 years of age, the Court in Craig v. Boren, 429 U.S. 190, 208209, 50 L. Ed. 2d 397, 97 S. Ct. 451 (1976), stressed that "the principles embodied in the Equal
Protection Clause are not to be rendered inapplicable by statistically measured but loose-fitting
generalitiesBrown's relative interests approach is not a reasonable interpretation of the threepart test. This approach contravenes the purpose of the statute and the regulation because it
does not permit an institution or a district court to remedy a gender-based disparity in athletics
participation opportunities. Instead, this approach freezes that disparity by law, thereby
disadvantaging further the underrepresented gender. Had Congress intended to entrench, rather
than change, the status quo -- with its historical emphasis on men's participation opportunities
to the detriment of women's opportunities -- it need not have gone to all the trouble of enacting
Title IX.
V.
[Discussion of constitutional implications of Title IX’s favoring women.]
Of course, a remedy that requires an institution to cut, add, or elevate the status of athletes or
entire teams may impact the genders differently, but this will be so only if there is a genderbased disparity with respect to athletics opportunities to begin with, which is the only
circumstance in which prong three comes into play. Here, however, it has not been shown that
Brown's men students will be disadvantaged by the full and effective accommodation of the
athletics interests and abilities of its women students.
VI.
[Discussion of Brown’ being denied the right to present survey data showing a relative lack of
interest by female student-athletes.]
VII.
It does not follow from our statutory and constitutional analyses that we endorse the district
court's remedial order. Although we decline Brown's invitation to find that the district court's
remedy was an abuse of discretion, we do find that the district court erred in substituting its
own specific relief in place of Brown's statutorily permissible proposal to comply with Title IX
by cutting men's teams until substantial proportionality was achieved.
...The district court ordered Brown to "elevate and maintain women's gymnastics, women's
water polo, women's skiing, and women's fencing to university-funded varsity status." The
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court stayed this part of the order pending appeal and further ordered that, in the interim, the
preliminary injunction prohibiting Brown from eliminating or demoting any existing women's
varsity team would remain in effect.
We agree with the district court that Brown's proposed plan fell short of a good faith effort to
meet the requirements of Title IX as explicated by this court in Cohen II and as applied by the
district court on remand. Indeed, the plan is replete with argumentative statements more
appropriate for an appellate brief. It is obvious that Brown's plan was addressed to this court,
rather than to offering a workable solution to a difficult problem.
It is clear, nevertheless, that Brown's proposal to cut men's teams is a permissible means of
effectuating compliance with the statute. Thus, although we understand the district court's
reasons for substituting its own specific relief under the circumstances at the time, and although
the district court's remedy is within the statutory margins and constitutional, we think that the
district court was wrong to reject out-of-hand Brown's alternative plan to reduce the number of
men's varsity teams. After all, the district court itself stated that one of the compliance options
available to Brown under Title IX is to "demote or eliminate the requisite number of men's
positions." Our respect for academic freedom and reluctance to interject ourselves into the
conduct of university affairs counsels that we give universities as much freedom as possible in
conducting their operations consonant with constitutional and statutory limits.
Brown therefore should be afforded the opportunity to submit another plan for compliance with
Title IX...
VIII.
There can be no doubt that Title IX has changed the face of women's sports as well as our
society's interest in and attitude toward women athletes and women's sports... In addition, there
is ample evidence that increased athletics participation opportunities for women and young
girls, available as a result of Title IX enforcement, have had salutary effects in other areas of
societal concern...
One need look no further than the impressive performances of our country's women athletes in
the 1996 Olympic Summer Games to see that Title IX has had a dramatic and positive impact
on the capabilities of our women athletes, particularly in team sports. These Olympians
represent the first full generation of women to grow up under the aegis of Title IX. The
unprecedented success of these athletes is due, in no small measure, to Title IX's beneficent
effects on women's sports, as the athletes themselves have acknowledged time and again. What
stimulated this remarkable change in the quality of women's athletic competition was not a
sudden, anomalous upsurge in women's interest in sports, but the enforcement of Title IX's
mandate of gender equity in sports.
Affirmed in part, reversed in part, and remanded for further proceedings. No costs on
appeal to either party.
DISSENTBY: TORRUELLA
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JENNIFER L. BOUCHER, ALEXIS SNADER, CATHRYN M. UNGERMAN, REXANNE
JOHANNES, TALYA ANTER, CATHERINE S. BIUSO, MAGGIE ROZYCKI, MEGHAN
DELEHANTY, INDIVIDUALLY AND ON BEHALF OF ALL OTHERS SIMILARLY
SITUATED, Plaintiffs-Appellants, v. SYRACUSE UNIVERSITY, KENNETH SHAW,
CHANCELLOR OF SYRACUSE UNIVERSITY, AND JOHN J. CROUTHAMEL,
ATHLETIC DIRECTOR OF SYRACUSE UNIVERSITY, Defendants-Appellees.
Docket No. 98-7678
UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT
164 F.3d 113; 1999 U.S. App. LEXIS 90; 42 Fed. R. Serv. 3d (Callaghan) 659
December 15, 1998, Argued
January 6, 1999, Decided
PRIOR HISTORY: Appeal from class certification order, dismissal of plaintiffs' Title IX
equal treatment claims, and grant of summary judgment to defendants on plaintiffs' Title IX
accommodation claim by the United States District Court for the Northern District of New
York (Frederick J. Scullin, Jr., Judge).
JUDGES: Before: FEINBERG, CALABRESI, and SOTOMAYOR, Circuit Judges.
OPINIONBY: CALABRESI
OPINION:
Former female club athletes at Syracuse University ("Syracuse" or "the University") appeal
from an April 3, 1998 judgment of the United States District Court for the Northern District of
New York (Frederick J. Scullin, Jr., J.) granting summary judgment to Syracuse on a Title IX
accommodation claim. Plaintiffs also appeal two orders of June 12, 1996. The first such order
dismissed their Title IX equal treatment claims, and the second conditionally certified a class.
We affirm in part, dismiss the appeal in part, and vacate and remand in part.
FACTS AND PROCEDURAL HISTORY
Plaintiff students "individually and on behalf of all others similarly situated" filed suit in May
of 1995 against Syracuse University, alleging numerous violations of Title IX of the Education
Amendments of 1972, 20 U.S.C. §§ 1681-1688, and its governing regulations. Seven of the
eight named plaintiffs were at that time members of Syracuse's club lacrosse team and the
eighth was a member of the University's club softball team. All plaintiffs have since graduated
from the University.
The plaintiffs argued that Syracuse discriminated against female athletes in its allocation of
12
participation opportunities (which includes decisions regarding which varsity teams to field as
well as how many opportunities for participation by female varsity athletes are thereby created
as a result of those decisions). n1 Plaintiffs also alleged that Syracuse provided unequal
benefits to varsity female athletes as compared to varsity male athletes, and provided unequal
scholarship funding to varsity female athletes as compared to varsity male athletes. n2
- - - - - - - - - - - - - - - - - -Footnotes- - - - - - - - - - - - - - - - - n1 This kind of Title IX claim is commonly referred to as an "accommodation" claim because it
derives from the Title IX implementing regulations, which provide that in determining whether
equal athletic opportunities for members of both sexes are available...
n2 These types of Title IX claims are generally referred to as "equal treatment" claims because
they 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.
- - - - - - - - - - - - - - - - -End Footnotes- - - - - - - - - - - - - - - - Plaintiffs sought class certification in view of the fact that college students are a fluid group
and that without such certification, mootness issues would likely arise... In their equal
treatment claims, plaintiffs asked for declaratory and injunctive relief ordering the University to
provide equal benefits and scholarships to varsity male and female athletes. In their
accommodation claim, plaintiffs sought the establishment of varsity lacrosse and softball teams
for women.
Just over 50% of the Syracuse's student population is female, yet, when this complaint was
filed, women made up only 32.4% of its athletes. In its 1993-94 National Collegiate Athletic
Association submission, Syracuse stated that of its 681 varsity student-athletes, 217 were
women, while 464 were men. These numbers reflected a 19% disparity between the percentage
of varsity athletes who were female and the percentage of the University's students who were
female.
At the time that this suit was begun in May of 1995, the University funded eleven men's varsity
teams and nine women's varsity teams. Just prior to the filing of the complaint, Syracuse
announced a plan to add two new varsity women's teams to its athletic program - women's
varsity soccer and women's varsity lacrosse. These teams began to play, respectively, in the
1996-97 and the 1997-98 academic years, thus bringing the number of varsity teams funded by
the school to eleven men's and eleven women's. n4
- - - - - - - - - - - - - - - - - -Footnotes- - - - - - - - - - - - - - - - - n4 It is the case, however, that for Title IX accommodation purposes, it is the aggregate number
of opportunities provided for each sex, and not the number of teams funded for each sex, that
matters...
- - - - - - - - - - - - - - - - -End Footnotes- - - - - - - - - - - - - - - - -
13
The University established five of its nine women's varsity teams in 1971 n5 - when it first
funded women's varsity sports. It dropped one of these sports (fencing) in 1972, and replaced it
with field hockey. Crew was added as a women's varsity team in 1977. Three additional
women's sports were added to the varsity roster in 1981. After 1981, no new women's varsity
team was created by the University until the addition of the varsity soccer team in 1997. Thus,
until the filing of this complaint in 1995, fourteen years passed by without the University
creating any new women's varsity teams. In the course of this litigation, Syracuse announced
plans to institute a varsity women's softball team which, according to the University's
representations at oral argument, will begin play in the 1999-2000 academic year.
On June 12, 1996, the district court granted summary judgment to the University on plaintiffs'
equal treatment claims -- those that challenged the alleged unequal allocation of benefits and
scholarships between varsity men's and women's teams (brought under 34 C.F.R. §
106.41(c)(2)-(8), (10) and 34 C.F.R. § 106.37). The court held that since none of the named
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 substantially for the reasons the district court gave... At the same time, the court ruled
that plaintiffs could go forward with their accommodation claim and additionally deemed that
the plaintiffs could pursue an equal treatment claim challenging the allocation of funds between
male and female club teams -- an action that the plaintiffs had not brought and never litigated.
[Discussion of which female student-athletes were potentially members of an affected class in
this suit (e.g. “current” student athletes, “would-be student-athletes.”]
After a period of limited discovery, the district court granted summary judgment to the
University on plaintiffs' accommodation claim. It found that although opportunities to
participate in varsity athletics at Syracuse were not allocated equally between the sexes, the
University nevertheless fell within one of the safe harbors set forth in the governing regulations
of Title IX... Under the implementing regulations, there are three safe harbor defenses to a
claim of unequal accommodation of student interest in varsity athletics. See 34 C.F.R. §
106.41(c)(1); 44 Fed. Reg. 71413 (1979). The district court held that Syracuse met the
requirements of the second safe harbor because it had "continued a practice of program
expansion which is responsive to the abilities and interests of its student body." n8
- - - - - - - - - - - - - - - - - -Footnotes- - - - - - - - - - - - - - - - - n8 The court observed:
Where a university has a practice of expanding its athletic program, approaching
proportionality and meeting the needs of the under-represented gender; and
continues to expand in response to its student body's interest and abilities, as
well as that of secondary feeder schools; symmetry in athletic programs is not
required under Title IX, and liability may be avoided. Under this "safe harbor"
14
of a continuing practice of program expansion, courts look to the institution's
past and continuing remedial efforts to provide nondiscriminatory participation
opportunities through program expansion.
- - - - - - - - - - - - - - - - -End Footnotes- - - - - - - - - - - - - - - Specifically, the district court found that (1) Syracuse had a "strong history of adding women's
sports programs"; (2) although between 1982 and 1995, the University had added no new varsity
women's teams, it did fund additional scholarships and provide enhanced facilities, coaching, and
support services for its women varsity athletes; (3) between 1982 and 1995, the absolute number
of female participants in varsity sports had increased from 148 to 217; and (4) Syracuse had
established two new varsity women's teams since 1995 and planned to add a third in 1999-2000.
Finally, the district court noted that in conducting the safe harbor analysis, a court "may consider
whether there are any formal policies in place which might indicate that the institution is
monitoring the pulse of its students' interests in anticipation of expansion." Despite recognizing
that the school had not established that it had any formal policy to allow students to voice their
interests, the court concluded that "the best evidence of continued expansion is expansion itself."
Accordingly, it granted summary judgment to the University.
DISCUSSION
A. Lacrosse.
Syracuse argues that this appeal is moot because it has already implemented a varsity women's
lacrosse team and that there is, therefore, nothing left for the certified class to pursue. The
plaintiffs counter that the appeal is not moot for two reasons. First, they state that they sought to
amend their complaint in the district court to add a claim for damages and that the court
improperly denied their motion. Second, they argue that their suit did not merely seek class
certification of current and future students interested in playing varsity lacrosse, but that they
also sought class certification of current and numerous future students interested in playing
varsity softball, itself not yet a varsity sport.
It may well be that mootness would have been avoided had plaintiffs originally requested
damages in their complaint.. A request for damages, however, will not avoid mootness if it was
"inserted after the complaint was filed in an attempt to breathe life into a moribund dispute."
McCabe v. Nassau County Med. Ctr., 453 F.2d 698, 702 (2d Cir. 1971).
In the case before us, plaintiffs did not seek to amend their complaint to add a damages claim
until three months after the University filed its motion for summary judgment and six months
after the district court granted the University leave to file that motion. Moreover, in their papers
in opposition to the University's motion, plaintiffs' counsel represented that if the district court
were to enter an order binding the University to its promise to establish varsity women's lacrosse
and softball teams, then "plaintiffs shall submit an application for attorney's fees as there is no
15
longer a controversy between the parties" (emphasis added). And on appeal, plaintiffs' counsel,
despite being asked numerous times at oral argument to specify precisely what relief plaintiffs
sought, failed ever to mention damages... Under the circumstances, we are satisfied that the
district court did not err in denying plaintiffs leave to amend their complaint to add a damages
claimWe, therefore, hold that insofar as plaintiffs' complaint sought a varsity lacrosse team, the
claim is now moot, given that the team has been created... Accordingly, we take no position on
whether the safe harbor defense made by Syracuse and granted by the district court was valid.
B. Softball.
Plaintiffs also contest the district court's failure to certify a sub-class of current and future
women interested in playing varsity softball. They argue that this issue is not moot because such
a team has not yet begun play. We agree with both contentions.
District judges have broad discretion over class definition. n10 But under Rule 23(c)(1), courts
are "required to reassess their class rulings as the case develops..." We conclude that although
the district court correctly found potential conflicts between members of a class that included
both women interested in playing varsity lacrosse and women who wished to play varsity
softball, it should have certified two sub-classes -- one for each sport -- rather than certifying
only one class and excluding from that class members of the second.
That being said, the University represented both to the district court and to this Court that a
varsity women's softball team is in the process of being established, and that the team will begin
play during the 1999-2000 academic year. Because full implementation of a varsity women's
softball team would render the remaining live aspect of this case moot, we again choose not to
reach the merits of the University's safe harbor defense, and prefer instead to remand the case to
the district court with instructions to dismiss the case if the University completes its plan to
institute a varsity women's softball team by the date indicated. Should the University not live up
to its representations, the district court is ordered to certify a class of current and future women
students interested in playing varsity softball and to revisit the merits of the case at that time.
C. Club Athletes.
Although nowhere in their complaint did plaintiffs challenge the allocation of funding between
female and male club sports at Syracuse, the district court certified a class of female club athletes
to prosecute such a claim. The plaintiffs did not pursue discovery or take any action on this claim
-- which was essentially created by the district court. Nonetheless, the court granted summary
judgment to Syracuse. This was error. A court cannot create a cause of action that a party did not
raise (and has no intention of pursuing) and then decide the issue against that party. Beyond the
fact that the court is without the power to do so, any ruling on such unargued claims makes law
and may bind parties on issues not adequately presented. Such results are to be rigorously
avoided. We therefore vacate the district court's ruling on this claim.
D. A Broader Claim.
From time to time, appellants have suggested that their real claim in this suit is to represent all
women, present and future, who wish to be varsity athletes at Syracuse -- regardless of sport.
And in this respect they suggest that "interest and ability rarely develop in a vacuum; they evolve
16
as [**19] a function of opportunity and experience." Cohen v. Brown Univ., 101 F.3d 155, 179
(1st Cir. 1996) ("Cohen II"), cert. denied, 520 U.S. 1186, 117 S. Ct. 1469, 137 L. Ed. 2d 682
(1997). They add that it was to ensure such opportunities that Congress passed Title IX. For this
reason, they further contend that the importance of Title IX cannot be overstated. n12
- - - - - - - - - - - - - - - - - -Footnotes- - - - - - - - - - - - - - - - - n12 Statistics show that by 1992, in comparison to when Title IX was enacted, the number of
young women participating in sports had multiplied six times. See Grace-Marie Mowery,
Comment & Casenote, Creating Equal Opportunity for Female Coaches: Affirmative Action
Under Title IX, 66 U. Cin. L. Rev. 283, 283 (1997).
- - - - - - - - - - - - - - - - -End Footnotes- - - - - - - - - - - - - - - - We are inclined to agree. But just as the district court cannot establish a claim for equal treatment
for club athletes when that is not presented, so also we cannot create a class of those women who
are interested in varsity athletics at Syracuse generally when that issue was never clearly
presented in the complaint nor during the prosecution of this case. Too often, both in their briefs,
and at oral argument, plaintiffs in this case have made clear that their interests are more specific:
equal treatment among varsity athletes, and varsity status for women's lacrosse and softball.
Accordingly, we take no position on the merits of such a broader suit. Cf. Cohen II, 101 F.3d 155
(upholding suit brought by a similar class against Brown University); Cohen I, 991 F.2d 888. It,
and the applicability or not of the safe harbor provisions of Title IX as defenses to it, are simply
not before us.
We affirm the district court's dismissal of the plaintiffs' equal treatment claims with respect to
varsity athletes for lack of standing. We dismiss the plaintiffs' appeal as to varsity lacrosse as
moot. We vacate the district court's class certification order and its order granting summary
judgment to the defendant University on plaintiffs' equal treatment claim with respect to club
athletes. We remand the case to the district court for further proceedings consistent with this
opinion with respect to the plaintiffs' claim as to varsity softball.
AFFIRMED in part, DISMISSED in part, VACATED and REMANDED in part.
17
BETH PEDERSON; [et al.] versus LOUISIANA STATE UNIVERSITY; [et al.]
No. 94-30680, No. 95-30777, No. 96-30310, No. 97-30427, No. 97-30719
UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT
213 F.3d 858; 2000 U.S. App. LEXIS 12019; 46 Fed. R. Serv. 3d (Callaghan) 1254
June 1, 2000, Decided
PRIOR HISTORY: Appeals from the United States District Court for the Middle District of
Louisiana.
JUDGES: Before KING, Chief Judge, STEWART, Circuit Judge, and LITTLE, District
Judge. *
* District Judge of the Western District of Louisiana, sitting by designation.
OPINIONBY: CARL E. STEWART OPINION
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. The Pederson 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) [**4] ("Davis"), and the individual members of the LSU Board of
18
Supervisors (in their official capacities only) (collectively, "Appellees").
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. On the same date, the district court dismissed Appellants' 42
U.S.C. § 1983 claims against defendants Davis and Dean in their individual 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.
[Discussion of the plaintiff’s efforts to establish standing. Discussion of jurisdiction issues.
Discussion of whom should be a plaintiff party to the class action suit.]
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. 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 reasonable estimate of the number of purported
class members." 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...
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.
19
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.
B. Standing
........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")]."
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. 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."
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 "it 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
20
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 in fact is the "invasion of a legally protected interest...."
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, 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.
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 setaside 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.
21
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 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 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. 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
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...
22
[Discussion of the question of mootness, as plaintiffs have graduated and therefore cannot
participate in athletics at LSU.]
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.
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, 209 U.S. 123, 52 L. Ed. 714, 28
S. Ct. 441. We find that LSU waived its Eleventh Amendment sovereign immunity by
accepting federal funds under Title IX
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... 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 . .
..
23
§ 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:
Such 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, admissions, textbooks, and employment. n16 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;
24
(2) The provision of equipment and supplies;
(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 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
25
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. [**52]
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 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 fastpitch 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 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. 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
26
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 "whether 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... 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. 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. With respect to the claims at issue in this case, the district
court considered the question to be a "very close one" but eventually held that LSU did not
intentionally violate Title IX. 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 by-product of
resistance to change." 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.
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
27
athletics in the same manner and to the same extent as its mean, and acted
accordingly.
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." 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 intended to violate Title IX, but need only have intended
to treat women differently 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." Well-established Supreme
Court precedent demonstrates that archaic assumptions such as those firmly held by LSU
constitute intentional gender 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."
28
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 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...
The judgment of the district court is REVERSED and the case REMANDED with instruction...
[Subsequent History: According to the Chronicle of Higher Education, LSU agreed to pay $1.2
million to settle the above claims in October 2001 - $37,500 to five plaintiffs and $1 million in
attorney’s fees. According to the article, this settlement “closes off” the possibility of other
plaintiffs’ collecting in a class action suit.]
29
HEATHER SUE MERCER, Plaintiff-Appellant, v. DUKE UNIVERSITY; FRED
GOLDSMITH, Defendants-Appellees.
No. 99-1014
UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT
190 F.3d 643; 1999 U.S. App. LEXIS 15502
June 10, 1999, Argued
July 12, 1999, Decided
PRIOR HISTORY: Appeal from the United States District Court for the Middle District of
North Carolina, at Durham. N. Carlton Tilley, Jr., District Judge. (CA-97-959-1).
JUDGES: Before LUTTIG and KING, Circuit Judges, and BUTZNER, Senior Circuit Judge.
Judge Luttig wrote the opinion, in which Judge King and Senior Judge Butzner joined.
OPINIONBY: LUTTIG
OPINION: [*644] OPINION
Appellant Heather Sue Mercer challenges the federal district court's holding that Title IX
provides a blanket exemption for contact sports and the court's consequent dismissal of her
claim that Duke University discriminated against her during her participation in Duke's
intercollegiate football program. For the reasons that follow, we hold that where a university
has allowed a member of the opposite sex to try out for a single-sex team in a contact sport, the
university is, contrary to the holding of the district court, subject to Title IX and therefore
prohibited from discriminating against that individual on the basis of his or her sex.
I.
Appellee Duke University operates a Division I college football team. During the period
relevant to this appeal (1994-98), appellee Fred Goldsmith was head coach of the Duke football
team and appellant Heather Sue Mercer was a student at the school.
Before attending Duke, Mercer was an all-state kicker at Yorktown Heights High School in
Yorktown Heights, New York. Upon enrolling at Duke in the fall of 1994, Mercer tried out for
the Duke football team as a walk-on kicker. Mercer was the first -- and to date, only -- woman
to try out for the team. Mercer did not initially make the team, and instead served as a manager
during the 1994 season; however, she regularly attended practices in the fall of 1994 and
participated in conditioning drills the following spring.
In April 1995, the seniors on the team selected Mercer to participate in the Blue-White Game,
an intrasquad scrimmage played each spring. In that game, Mercer kicked the winning 28-yard
30
field goal, giving the Blue team a 24-22 victory. The kick was subsequently shown on ESPN,
the cable television sports network. Soon after the game, Goldsmith told the news media that
Mercer was on the Duke football team, and Fred Chatham, the Duke kicking coach, told
Mercer herself that she had made the team. Also, Mike Cragg, the Duke sports information
director, asked Mercer to participate in a number of interviews with newspaper, radio, and
television reporters, including one with representatives from "The Tonight Show."
Although Mercer did not play in any games during the 1995 season, she again regularly
attended practices in the fall and participated in conditioning drills the following spring. Mercer
was also officially listed by Duke as a member of the Duke football team on the team roster
filed with the NCAA and was pictured in the Duke football yearbook.
During this latter period, Mercer alleges that she was the subject of discriminatory treatment by
Duke. Specifically, she claims that Goldsmith did not permit her to attend summer camp,
refused to allow her to dress for games or sit on the sidelines during games, and gave her fewer
opportunities to participate in practices than other walk-on kickers. In addition, Mercer claims
that Goldsmith made a number of offensive comments to her, including asking her why she
was interested in football, wondering why she did not prefer to participate in beauty pageants
rather than football, and suggesting that she sit in the stands with her boyfriend rather than on
the sidelines.
At the beginning of the 1996 season, Goldsmith informed Mercer that he was dropping her
from the team. Mercer alleges that Goldsmith's decision to exclude her from the team was on
the basis of her sex because Goldsmith allowed other, less qualified walk-on kickers to remain
on the team. Mercer attempted to participate in conditioning drills the following spring, but
Goldsmith asked her to leave because the drills were only for members of the team. Goldsmith
told Mercer, however, that she could try out for the team again in the fall.
On September 16, 1997, rather than try out for the team again, Mercer filed suit against Duke
and Goldsmith, alleging sex discrimination in violation of Title IX of the Education
Amendments of 1972, 20 U.S.C. §§ 1681-1688, and negligent misrepresentation and breach of
contract in violation of North Carolina law. Duke and Goldsmith filed a motion to dismiss for
failure to state a claim under Title IX, and, after discovery was completed, Duke and Goldsmith
filed additional motions for summary judgment and a motion to dismiss for lack of subjectmatter jurisdiction. On November 9, 1998, the district court granted the motion to dismiss for
failure to state a claim under Title IX, and dismissed the state-law claims without prejudice,
refusing to exercise supplemental jurisdiction over those claims. The district court declined to
rule on any of the other outstanding motions. The district court subsequently denied Mercer's
motion to alter judgment.
From the district court's order dismissing her Title IX claim for failure to state a claim upon
which relief can be granted and its order denying the motion to alter judgment, Mercer appeals.
II.
Title IX prohibits discrimination on the basis of sex by educational institutions receiving
31
federal funding. See 20 U.S.C. § 1681(a) ("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 . .
. ."). Soon after enacting Title IX, Congress charged the Department of Health, Education, and
Welfare (HEW) with responsibility for developing regulations regarding the applicability of
Title IX to athletic programs. See Pub. L. No. 93-380, § 844, 88 Stat. 484 (1974). Acting upon
that charge, HEW duly promulgated 34 C.F.R. § 106.41, which reads in relevant part as
follows:
Athletics.
(a) General. 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.
(b) Separate teams. Notwithstanding the requirements of paragraph (a) of this
section, a recipient may operate or sponsor separate teams for members of each
sex where selection for such teams is based upon competitive skill or the activity
involved is a contact sport. However, where a recipient operates or sponsors a
team in a particular sport for members of one sex but operates or sponsors no
such team for members of the other sex, and athletic opportunities for members
of that sex have previously been limited, members of the excluded sex must be
allowed to try out for the team offered unless the sport involved is a contact
sport. For the purposes of this part, contact sports include boxing, wrestling,
rugby, ice hockey, football, basketball and other sports the purpose or major
activity of which involves bodily contact.
34 C.F.R. § 106.41(a)-(b). n1 The district court held, and appellees contend on appeal, that,
under this regulation, "contact sports, such as football, are specifically excluded from Title IX
coverage." We disagree. Subsections (a) and (b) of section 106.41 stand in a symbiotic
relationship to one another. Subsection (a) establishes a baseline prohibition against sex
discrimination in intercollegiate athletics, tracking almost identically the language in the parallel
statutory provision prohibiting discrimination by federally funded educational institutions. In
addition to generally barring discrimination on the basis of sex in intercollegiate athletics,
subsection (a) specifically prohibits any covered institution from "providing any such athletics
separately on such basis."
Standing alone, then, subsection (a) would require covered institutions to integrate all of their
sports teams. In order to avoid such a result -- which would have radically altered the face of
intercollegiate athletics -- HEW provided an explicit exception to the rule of subsection (a) in the
first sentence of subsection (b), allowing covered institutions to "operate or sponsor separate
teams for members of each sex where selection for such teams is based upon competitive skill or
32
the activity involved is a contact sport." By its terms, this sentence permits covered institutions to
operate separate teams for men and women in many sports, including contact sports such as
football, rather than integrating those teams.
The first sentence of subsection (b), however, leaves unanswered the question of what, if any,
restrictions apply to sports in which a covered institution operates a team for one sex, but
operates no corresponding team for the other sex. HEW addressed this question in the second
sentence of subsection (b).
This second sentence is applicable only when two predicate criteria are met: first, that the
institution in question "operates or sponsors a team in a particular sport for members of one sex
but operates or sponsors no such team for members of the other sex," and second, that "athletic
opportunities for members of that sex have previously been limited." In this case, appellees do
not dispute that athletic opportunities for women at Duke have previously been limited, and thus
we assume that the second condition has been met. Further, we assume, without deciding, that
Duke operated its football team "for members of one sex" -- that is, for only men-- but did not
operate a separate team "for members of the other sex," and therefore that the first condition has
also been satisfied. n2 Thus, insofar as the present appeal is concerned, we consider the predicate
conditions to application of the sentence to have been met. Provided that both of the conditions
in the protasis of the second sentence of subsection (b) have been met, the apodosis of the
sentence requires that "members of the excluded sex must be allowed to try out for the team
offered unless the sport involved is a contact sport." The text of this clause, on its face, is
incomplete: it affirmatively specifies that members of the excluded sex must be allowed to try
out for single-sex teams where no team is provided for their sex except in the case of contact
sports, but is silent regarding what requirements, if any, apply to single-sex teams in contact
sports. As to contact sports, this clause is susceptible of two interpretations. First, it could be read
to mean that "members of the excluded sex must be allowed to try out for the team offered unless
the sport involved is a contact sport, in which case the anti-discrimination provision of
subsection (a) does not apply at all." Second, it could be interpreted to mean that "members of
the excluded sex must be allowed to try out for the team offered unless the sport involved is a
contact sport, in which case members of the excluded sex need not be allowed to try out."
Appellees advocate the former reading, arguing that HEW intended through this clause to
exempt contact sports entirely from the coverage of Title IX. We believe, however, that the latter
reading is the more natural and intended meaning. The second sentence of subsection (b) does
not purport in any way to state an exemption, whether for contact sports or for any other
subcategory, from the general antidiscrimination rule stated in subsection (a). And HEW
certainly knew how to provide for a complete exemption had it wished, Congress itself having
provided a number of such exemptions in the very statute implemented by the regulation. Rather,
the sentence says, and says only, that covered institutions must allow members of an excluded
sex to try out for single-sex teams in non-contact sports. Therefore, the "unless" phrase at the end
of the second clause of the sentence cannot (logically or grammatically) do anything more than
except contact sports from the tryout requirement that the beginning of the second clause of the
sentence imposes on all other sports.
Contrary to appellees' assertion, this reading of the regulation is perfectly consistent with the
33
evident congressional intent not to require the sexual integration of intercollegiate contact sports.
If a university chooses not to permit members of the opposite sex to try out for a single-sex
contact-sports team, this interpretation respects that choice. At the same time, however, the
reading of the regulation we adopt today, unlike the one advanced by appellees, ensures that the
likewise indisputable congressional intent to prohibit discrimination in all circumstances where
such discrimination is unreasonable -- for example, where the university itself has voluntarily
opened the team in question to members of both sexes -- is not frustrated.
We therefore construe the second sentence of subsection (b) as providing that in non-contact
sports, but not in contact sports, covered institutions must allow members of an excluded sex to
try out for single-sex teams. Once an institution has allowed a member of one sex to try out for a
team operated by the institution for the other sex in a contact sport, subsection (b) is simply no
longer applicable, and the institution is subject to the general anti-discrimination provision of
subsection (a)...
Accordingly, because appellant has alleged that Duke allowed her to try out for its football team
(and actually made her a member of the team), then discriminated against her and ultimately
excluded her from participation in the sport on the basis of her sex, we conclude that she has
stated a claim under the applicable regulation, and therefore under Title IX. We take to heart
appellees' cautionary observation that, in so holding, we thereby become "the first Court in
United States history to recognize such a cause of action." Where, as here, however, the
university invites women into what appellees characterize as the "traditionally all-male bastion
of collegiate football," we are convinced that this reading of the regulation is the only one
permissible under law.
The district court's order granting appellees' motion to dismiss for failure to state a claim is
hereby reversed, and the case remanded for further proceedings.
REVERSED AND REMANDED
[Subsequent history: In 2000, a jury awarded Mercer $1 million in compensatory damages and
$2 million in punitive damages. Duke University appealed. The appeal of damages is pending.]
34