Horner Ex Rel. Horner v. Kentucky High School Athletic Ass'n

unusuаl definition know of Brown-Graves’s Furthermore, after

of “casual drivers.” prob- became aware of the Central States lem, it of its claim notified Brown-Graves contributions. The elements laches result, estoppel

and are met. As these doctrines do bar Central States’s pension claims for contributions behalf employees classified as “casual drivers.” AFFIRMED. by HORNER, through Lorrie Ann and Horner; her father nfr Haskel Jenni- Baker, by through fer and her father Douglas Baker; Brown, nfr Juliana by through and her father nfr Michael

Brown; Chaffin, by Angella and Chaffin;

through her father nfr Dale Tracy by Dotson, through and her fa- Dotson; Jacqueline nfr ther Sherman by Elston, through her and father Jo- seph Elston; Amy by Hacker, and through Hacker; her father nfr Chris Hartlage, adult;

Elizabeth Suzanne an Kelly Johnson, through her Johnson; Mary nfr father Charles Whitelock, adult, Christine Plain- tiffs-Appellants, Burgett, through Leslie her fa- Billy Burgett; ther nfr Barrie Wa- gers, by through her father nfr Lyde Plaintiffs, Wagers, KENTUCKY ATHLET- HIGH SCHOOL Kentucky ASSOCIATION;

IC State Elementary Secondary Board for Education, Defendants-Appellees.

No. 97-6264. United Court of Appeals, States

Sixth Circuit. Argued Feb. Decided March E, (argued),

Gregory W. Butrum Donald Louisville, (briefed), KY, Armstrong Plaintiffs-Appellants. . briefed),

Danny (argued C. Reeves (briefed), Greenebaum, Roger G. Wright McDonald, KY, Lexington, Doll & Robert briefed), (argued Boehl, E. Stopher and Graves, KY, Louisville, Stopher for De- & fendants-Appellees. JONES, NORRIS,

Before: and SUHRHEINRICH, Judges. Circuit J., SUHRHEINRICH, delivered court, opinion of the in which ALAN E. NORRIS, J., joined. NATHANIEL R. JONES, 698-706), (pp. J. delivered separate dissenting opinion.

OPINION

SUHRHEINRICH, Judge. Circuit Plaintiffs, a group of female student ath- schools, attending Kentucky high letes ap- peal follоwing from remand the district granting judgment court’s order summary Defendant state school board school claim athletic association on Plaintiffs’ sexual discrimination Education Amendments as amend- ed Rights the Civil Restoration Act (20 1681) (“Title IX”). § U.S.C. appeal Plaintiffs the denial post-judgment attorneys’ motion for fees. We AFFIRM.

I. BACKGROUND Plaintiffs sued Defendants Ken- tucky High Athletic School Association (“Association”) Kentucky and the State Elementary Secondary Board for Ed- (“Board”), claiming ucation Asso- fast-pitch ciation’s failure to sanction soft- Equal ball Clause violated Protection Amendment, 42 of the Fourteenth U.S.C. § 3 of Section the Constitu- Kentucky, tion Commonwealth XXVII, and Title Labor and Human Rights, Chapter Rights (Ky.Rev. Civil 344.020(l)(b) (Banks-Baldwin Stat.Ann. 1997)). intentionally discriminated Specifically, alleged that Defendants them, against required Equal sponsor fast-pitch Defendants’ failure 276. The diminished the Protection Clause. See id. at softball for female students alleged court held that Plaintiffs of female student athletes com- ability adopted or adhered to the college fast-pitch softball athletic Defendants pete for percent male 25 rule because of rather than scholarships compared disparate impact played high spite of its on females student athletes who impact college disparate then that sheer insuffi- competed baseball and equal protection scholarshiрs. Plaintiffs cient to demonstrate baseball athletic panel requested declaratory injunctive relief violation. The Homer reversed sanctioning fast-pitch girls, judgment for Defendants on Plaintiffs’ softball however, claim, a Title IX that compensatory finding certification issues damages, as “abound[edj.” class, fees, costs. of fact See id. at 275. attorneys’ and appeal The Board and Association defended on While first was pend- Plaintiffs’ rule, whereby Court, percent” ing Kentucky the this the basis its “25 General sport un- the Assembly regulating a new would be sanctioned amended statute sports. percent high Ky.Rev.Stat. less at least 25 of the member school 156.070(2) (Banks-Baldwin 1995) (effec- partici- § indicated a to willingness schools filed, 15, 1994). pate. July At the time the lawsuit was tive a of- Where surveys, in and respectively, sports,- two fered one of two similar the revealed the member schools indicat- amended statute directed the Board and (1988) only percent regulations ed a 9 and a 17 the percent promulgate Association to (1992) in fast-pitch sport interest for to offer for the softball the which National (“NCAA”) girls. Athletic Collegiate Association athletic In scholarships. response offers granted district court The Defendants’ 156.070(2), § to passage the the Associ- summary holding for judgment, motions Bylaw ation amended its to state: (1) that: had complied Defendants with If sponsors a member sсhool or intends Title IX because equal had offered sponsor activity athletic in accordance the inter opportunities sport similar to a for which NCAA mem- students; (2) ests and abilities of and De an athletic scholarship, bers offer complied Equal fendants had with the sponsor activity school shall the athletic they permitted Protection Clause because or sport scholarships for which the are participate students sanctioned offered. The athletic activities which sports gender without restriction. Plain to sports are similar for which NCAA appealed, tiffs and this affirmed in Court scholarships offer are: members Girls’ part part. and reversed See Horner v. as pitch compared fast softball slow Ass’n, Kentucky High School Athletic pitch. Cir.1994) (Horner (6th I). F.3d 265 IV, Bylaw Bylaws, KHSAA Div. 40.1 the judgment Homer affirmed for De- remand, on Plaintiffs’ equal protection fendants On again district court claim prove granted summary judgment failed to for Defen- following language places added to to determine the level of interest in bylaw, year: effective sport(s). for 1995-96 school (2) survey If said reveals sufficient having interest qualify "sponsored” sport, To squad required play to field the for normal school must be able to demonstrate the particular sport any if following: and version of (1) sport played, particular be the school shall sport If similar versions of facilities, stаff, and make and other allowances exist there are differences in the schol- arship properly opportunities at the level in field a team in the version of NCAA sport, survey sport for offer must taken of the which NCAA members population scholarships. student and reasonable times (1) defined, held dants. The district court that: is the qua compensa- sine non to certification, tory claims for class in- Plaintiffs’ relief for type IX viola- relief, declaratory tion. junctive history relief under A brief key Title IX Title IX moot because of the amend- cases makes that In were clear. all of the rele- (2) 156.070; cases, Ky.Rev.Stat. Supreme Ann. vant ment has consis- Court tently Title IX of Plaintiffs who had claims invoked “contract” rationale: (3) moot; under graduated Spending legislation, Plain- Clause the re- monetary lationship damages government tiffs’ claims between the funding pre- failed because Plaintiffs had recipient is consensual. A recipient subject sented no evidence intentional discrimi- should therefore not be to money damages nation. unless has notice that it will be liable the conduct issue. judgment Plaintiffs moved to alter for attorneys’ also moved fees. The dis- Court first con Regard- trict court denied both motions. implied private right strued an of action fees, attorneys’ the district court found ing under Title IX. See Cannon University that Plaintiffs had no received relief on the Chicago, claim, merits and that there was L.Ed.2d 560 The Court reasoned no that Plaintiffs had cata- proof been the that patterned because Title IX was after lyst policy for change. Defendants’ Plain- 1964, Title VI of the Civil Rights Act appeal. tiffs which has been containing construed as implied* right action, private draft “[t]he

II. DISCUSSION .ers explicitly of Title IX assumed that it interpreted would be applied and as Title appeal, challenge On Plaintiffs the dis- VI had been [interpreted applied].” and to grant money trict court’s refusal dam- Id. at 1946. also Guard ages under Title IX and its denial of then- ians Ass’n Civil Serv. New Comm’n request attorneys’ for fees. City, York 463 U.S. (1983) Compensatory 77 L.Ed.2d Damages A. (plurality) major (noting part analysis that a of the argue Plaintiffs that the district court Cannon was “that Title IX been had de granting summary judgment erred be- VI, Congress rived from Title that under Homer I cause the did not hold that panel private stood that remedies were available there was no evidence of intentional dis- VI, Congress under Title and that intend crimination regarding Defendants Title ed similar remedies to be available under IX. Plaintiffs further that contend Title IX”). not require does intentional discrimination damages. Finally, to recover relationship The monetary between argue monetary damages that if are prem- damages proof emerged of intent upon finding ised a of intentional discrimi- Guardians, Thére, a Title VI case. Black nation, gender-based Defendants’ classifi- police Hispanic officers sued dam- cation meets that standard. We address VI, ages under Title that alleging then- first. argument Plaintiffs’ second layoffs police department’s under the last- hired, policy first-fired were discriminato- Requirement 1. Intent ry. plaintiff that The officers claimed Plaintiffs contend that a lack of policy disproportionately affected them be- always intentional discrimination does not cause lower on qualifying had scores preclude a from plaintiff recovering money applicants examinations than White damages accordingly higher under Title IX. claim later than Plaintiffs’ were hired intent, Thus, notwithstanding, scoring applicants. however White 2(1), (2). Bylaw §40 KHSAA conditions attached to comply with the officers were laid-off layoffs, Black

came receipt.... had hired White officers who been before higher of their plaintiffs J.). before (White, Id. S.Ct. district The qualifying examinations. ‍‌‌‌‌‌​​‌‌‌​​‌‌‌​​‌‌​‌‌‌​​​‌​‌‌​​‌​​‌‌‌‌​‌​‌‌​‌​‌‍County Public In Franklin v. Gwinnett discriminatory im- acknowledged the court Schools., 74, 112 S.Ct. nevertheless, but, found pact policy (1992), 117 L.Ed.2d 208 prove failed to that the the plaintiffs that the im- explicitly established Court had defendant acted Title IX in plied right of action under intent. remedy. damages provides Cannon Franklin, district a student sued the issue of plaintiffs appealed The alleging the school requires proof of discrim- whether Title VI sexually district knew that she bеen 584, inatory id. at intent. See teacher, nothing. but did harassed a ma- Although ruling, a fractured damages were not Court held that sup- held that Title VI jority the Court IX violations from the available for Title ports private right providing of action unless the discrimination school district injunctive relief for limited declarative Significantly, intentional. Franklin violations. See id. unintentional holding characterized the Guardians majority of the A different 103 S.Ct. 3221. following way: plaintiffs’ argument rejected Court Though multiple opinions Guard- monetary damages were available suggest difficulty ians of infer- Although unintentional discrimination.2 ground among ring the common ruling gain did not rationale for this his case, in that a clear Justices majority, explained that: Justice White damages expressed view indicated that “make We have also Title in an action available under VI ordinarily are ap remedies not whole” for seeking remedies an intentional vio- private seeking re propriate actions lation, challenged and no tra- Justice passed lief for violations statutes favor ditional feder- presumption Congress pursuant “power to its under power court’s to award appropriate al Spending place conditions Clause in a cause cognizable relief of action. on the of federal funds.” Penn grant Id. at S.Ct. 1028. Halderman, v. hurst State School White, writing for the Justice this time 1, 15, S.Ct. U.S. majority, appliеd Spending the same L.Ed.2d 694 This is because the analysis Title IX that he Clause used receipt typical of federal funds under under Title Guardians VI: legislation Clause is a consen Spending grantee Hospi- sual matter: the State or other In Pennhurst State School and Halderman, weighs and burdens before ... Court ob- the benefits tal that remedies were limited un- accepting agreeing funds served IV, post, supra; II 103 S.Ct. explained Justice White the fractured votes See Parts (cid:127) (REHNQUIST, J., concurring as follows: at 3237 in the POWELL, joined by judgment). Justice opinions, Despite the numerous the views JUSTICE, post THE CHIEF of at least five Justices on two issues are private no believe that relief should dissenters, identifiable. BRENNAN, MARSHALL, BLACKMUN, The Justices granted under ever be under Title VI O’CONNOR, post, circumstances. Justice STEVENS, join AND with me to form a hold all 103 S.Ct. at would relief validity upholding for should be denied unless in- regulations incorporating disparate-im- proven. tent It follows from the views of n.2, pact supra. standard. See A different however, compen- Justices that these latter three no majority, would allow com- satory be awarded if discrimi- relief should pensatory relief in the absence of discriminatory QUIST natory animus is not shown. intent. Justice REHN- (White, J.). directly. at 607 n. 103 S.Ct. 3221 and I reach this conclusion Id. again Spending der such Clause statutes once that Title was modeled after VI, Connor, alleged violation was unintentional. Title O’ writing Justice for the and the United Respondents States mаjority, invoked the “contract” rationale presumption maintain that should of Guardians: apply to violations. equally intentional Title IX’s contractual has im nature disagree. point not permit- We The plications our for construction damages ting monetary uninten- for scope of available remedies. When Con receiving tional is that the en- violation gress attaches conditions the award of notice it tity lacks of federal funds under spending power, funds its monetary will be liable award.... for VI, in Title has IX and Title we problem This notice does not arise in closely private examine the propriety of this, in case such as which intentional holding actions recipient liable in alleged. discrimination is monetary damages noncompliance for Franklin, S.Ct. with the condition. Our central concern (citation omitted) added). (emphasis in that regard ensuring is with “that the not, however, did Franklin define con- receiving entity of federal funds [has] liability tours of the school district’s will notice that it be liable for a mone such a situation. tary opinion award.” Justice White’s Lago Independent Gebser Vista announcing the Court’s judgment District, School Guardians Assn. v Civil Serv. Comm’n (1998) up 141 L.Ed.2d took instance, City, New York conclud task. id. 118 at 1995. There the ed that in an the relief action under Title Court may held a school district alleging VI unintentional discrimination damages held liable but only, should be prospective if only the district had “actual notice” and unintentional, where discrimination is “it “deliberately indifferent” to the under- surely grantee obvious lying violation. See id. at 1999. In Geb- administering was aware that it was ser, a her high parents student and program in violation of [condition].” damages sued a school district for under We confront similar concerns If here. IX, alleging sexually that a teacher liability school district’s for a teacher’s reject- her. Court harassed sexual on principles harassment rests ed of or agency negligence princi- the use respondeat notice supe constructive or ples to render the school district liable for rior, it likewise will case that the monetary damages under Title IX. See id. recipient of funds of was unaware (“we at 1997 conclude that it would ‘frus- It discrimination. is sensible to assume permit trate IX to purposes’ Title did Congress recipi not envision a against damages recovery a school district liability damages ent’s in that situa for a on teacher’s sexual harassment based tion. principles respondeat superior or con- (citations Gebser, notice, i.e., actual at structive without notice 118 S.Ct. 1998 omit- official”). ted).3 Observing to a school district omitted). VII, explained quotation

3. The Gebser court also the distinc- nal moreover, marks persons tion between Title IX and VII: seeks to "make whole through injuries past for suffered discrimi- distinguishes That contractual framework Ibid, (internal VII, quotation nation.” marks Title IX from Title is which framed Thus, omitted). whereas Title VII aims outright of a of an terms not condition but centrally compensate victims of discrimi- prohibition. applies employ- VII to all nation, "protect- more regard Title IX focuses funding ers without federal ing” prac- broadly individuals from aims to "eradicat[e] discrimination recipients economy.” out throughout Landgraf tices carried of federal v. USI Cannon, S.Ct., Products, 244, 254, 704, at supra, 99 at Film 511 U.S. 114 S.Ct. funds. 1491, 1483, (1994) (inter- might explain why, 128 L.Ed.2d 1961-62. That course, can, knowing be no v. recently, “[t]here in Davis Monroe Most Education, putative the terms of the County acceptance [of 526 U.S. Board of (1999), 143 L.Ed.2d 839 if a is unaware of the contract] State S.Ct. a dam- legislation] Court considered whether Supreme [imposed conditions lie ages against action under Title will expect- what is unable to ascertain is ’” Ibid; id., 24-25, board student-on-student at ed of it.” see its earlier harassment. Consistent S.Ct. cases, that private the Davis held Court 639-40, at Davis Id. at 1669-70. only where damages actions are available the rule of to stu- thus extended Gebser with “delib- funding recipients act federal sexual harassment when dent-on-student to “known” acts erate indifference” the mis- the school officials are aware of Again, the reasoned:

harassment. Court it, despite nothing stop conduct but do recognized has This Court indeed ability to сontrol the situ- its exercise over Ti- right of action under implied private ation. University Chi- tle see Cannon sum, although mon- cago, supra, and we have held that yet expressly has not ruled on the Court suits, are in such ey damages available likely we think that it would hold point, County v. Gwinnett Public Franklin discrimination intentional is Schools, S.Ct. Ti money damages prerequisite have L.Ed.2d 208 Because we facially policy tle IX when a neutral Title IX as repeatedly legislation treated challenged disparate impact under a theo authority pursuant Congress’ enacted discussion illus ry. preceding As however, Clause, Spending under the trates, consistently the Supreme Court has see, Lago e.g., Indepen- Vista Gebser applied Spending Justice White’s Clause School, supra, dent analysis as first articulated in Guardians (Title IX); v. Gwinnett Franklin in its Title IX the con decisions. Given Schools, 74-75, County supra, Public relationship agen federal sensual between (Title IX), 8,n. see 112 S.Ct. 1028 cy recipient, recipient must be Assn. v. Civil also Guardians Serv. aware of the conditions attached to the New City, Comm’n York As receipt those funds. Justice White 77 L.Ed.2d 866 Franklin, point remarked “The of not J.) (Title VI), (1983) White, (opinion of monetary damages for an unin permitting damages are available private actions the receiving tentional violation en recipients funding only where tity of federal funds lacks notice it will adequate notice that cоuld be monetary be liable for a award.” Frank for the issue. liable conduct at When lin, 503 U.S. at 112 S.Ct. 1028. The pursuant Congress spending acts to its dissent, in suggesting ignoring that we are legislation “much in power, generates completely purposes, Title IX’s remedial of a in return for the nature contract: interest, countervailing this ignores which funds, agree the States to com- accommo requirement the intent seeks to ply federally imposed with conditions.” Thus, compensato date. we conclude that Hospital Pennhurst State School and ry Title IX available damages under are Halderman, 17, 1, facially policy challenged when neutral a is In inter- L.Ed.2d only if an intentional violation is shown. spending legislation, preting language question what Congress speak thus This leaves stan- “insistt]

we voice, a to a ‘recognizing apply clear dard to determine intent when 1962, 710, 711, S.Ct., 44, recognized implied right n. n. at and Court first 44, 1965, Cannon, opinion damages re- but to a IX in n. not remedy. injunctive equitable in a ferred to or relief action, Gebser, U.S., at private see 441 at and n. 1997-98. challenged. is be facially policy private neutral Cur- awarded to Title VI plaintiffs”); (same). rently, only test in the clear id. at 607 n. 103 S.Ct. 3221 Court is that of “deliberate indifference.” The dissent nonetheless advocates the “de- However, the from which that cases test Franklin, Gebser, liberate indifference” of arose, Franklin, Gebser, Davis, all Davis; and criticizes disсriminato- to address deliberate indifference sexual ry animus “overdemanding,” standard as harassment, readily not analogous and are insurmountable,” “near[ly] and “anti- present to the situation. See Pederson thetical the remedial purposes of Title Univ., 388, 412- Louisiana State 201 F.3d IX.” (5th Cir.2000). In those cases the We can envision various scenarios school district was sued for its failure discriminatory which the animus and sexually harassing prevent agents its from deliberate might help indifference tests es (or a other engaging student some form tablish “intent” under Title IX when misconduct). Thus, “intent” that con- facially policy challenged.4 neutral is by text means “actual notice” of the abuse However, Plaintiffs’ fundamen stop third failure to it. party tal failure to establish a violation of Title equivalent IX This ease is the Title violation,5 let alone an intentional we Guardians, Guardians. the district need not adopt test at this time. This court acknowledged disparate impact us to brings Plaintiffs’ second contention. of the police department’s defendant em- ployment impose did policies but not liabil- 2. Plaintiffs’ Proofs ity damages for policies because the In holding that Plaintiffs’s claim intentionally discriminatory. not Howev- compensatory damages failed for lack er, notes, as dissent only Justice White discrimination, proof of intentional advocated a for intentional standard dis- district court held that: facially policy crimination when a neutral “discriminatory clear, that of challenged, ani- It is as matter the law the Guardians, case; mus.” that there was no intentional dis J.) (“I (White, 103 S.Ct. 3221 conclude that crimination defendants in this case. Ass’n., ... proof High the absence of of discriminato- Kentucky Horner v. School (6th Cir.1994).3 ry animus, compensatory not relief should 43 F.3d Pederson, example, 4. According For a deliberate proper indifference test test “[t]he might appropriate be when Plaintiffs claim [the district] whether school knew or is that defendant school officials actual others, responsible actions of but knowledge disparate impact of their [the district] whether intended treat policies, either at time of enactment differently women basis of sex subsequently brought to their attention providing unequal opportunity.” them athletic post-enactment, eye. turn a blind We observed, Id. As the Pederson court classifica- perceive can adopting school officials assumptions tions based on "archaic” are fa- bias, policy simply gender because of without cially discriminating, resulting and "actions empirical disparate evidence of effect. In this application from of these consti- attitudes situation, we do think that the deliberate tutes intentional discrimination.” Id. 411- works, indifference test because it would However, discussed, offers case prove difficult edge for Plaintiffs actual knowl- no of intentional discrimination. disparate impact. test, standard, might animus stricter albeit a reason, disagree 5. For this we with the dis- help requisite Plaintiffs establish the intent. sent’s contention that answer "[a]n [the] Recently, the Circuit Fifth held that the question the district court cor- [of whether applied deliberate indifference test in Title IX rectly plaintiffs produced concluded that the sexual harassment cases little rele- “ha[s] no evidence of ‘intentional discrimination'] determining vance” an in whether academic depend entirely will on of 'in- the definition intentionally institution discriminated on the meaning tentional discrimination’ within the by failing basis of sex to accommodate female of Title IX." athletes. Pederson v. Louisiana State Univ., Cir.2000). (5th 201 F.3d 412-13 analy- Initially, Homer I discussed the determined Sixth Circuit The [FN]3 De- determining to offer sufficient be whether failed sis to used plaintiffs that the intentional on issue of IX’s complied evidence had with Title fendants defeat defendants’ to discrimination opportunity mandate.7 The Homer equal summary on the judgment motion for regulations imple- I that the panel noted Claim. Plaintiffs Equal Protection nondiscriminatory menting the statute’s any evi- not offered additional have impose indepen- “do ‍‌‌‌‌‌​​‌‌‌​​‌‌‌​​‌‌​‌‌‌​​​‌​‌‌​​‌​​‌‌‌‌​‌​‌‌​‌​‌‍an requirements not intentional discrimi- regarding dence al- requirement that an institution dent the case was remanded natiоn since for each sponsor separate teams ways Circuit. from the Sixth (citing Id. at 273 sport sanctions.” (J.A. 340.)6 contend that this Plaintiffs 106.41(b)). § noted panel also C.F.R. I pan- the Homer ruling wrong insti- regulations require that “the do that pertained only Equal their ruling el’s provide equality of gender-blind tutions furthermore, Claim; and that Protection Id. to its students.” opportunity athletic explicitly that Plain- Circuit held Sixth 106.41(c)). § re- (citing 34 C.F.R. This prima case tiffs made their facie under had factors, in- an evaluation of several quires “ IX. ‘[wjhether cluding sports the selection of effectively are correct that rul ac- competition Plaintiffs and levels regarding ing I intentional dis in Homer the interests and abilities commodate ” only pertained equal crimination Id. (quoting sexes[.]’ of both members Thus, the court protection 106.41(c)(1)). claim. district § 34 C.F.R. holding technically

was incorrect assessment, this making In the Homer original panel’s decision was “law panel Department deferred to the case” as to Plaintiffs’ Title claim. Health, Education, Policy and Welfare’s I panel’s holding that Given the Homer Interpretation satisfy id. 1979. See To issues of fact genuine regard there were requirement effective accommodation place, in the ing a Title IX violation first 106.41(c)(1), § of 34 C.F.R. “an institution was no ruling that there evidence inten effectively accommodate the interests must under Title IX tional discrimination would of both sexes both seleсtion of however, This, premature. have been to the sports competition, and the levels brings us Plaintiffs’ contention our necessary provide equal extent athletic previous they decision found that stat (citing Policy Id. opportunity.” Interpre- case under IX. That prima ed a facie tation, VII.C.l., Fed.Reg. at correct, Section as an examination of our added). 71,417) original (emphasis reveals. decision case, Court, rule, circumstantially appeal ground of this this or a In first Feeney, relying sequence on Administrator v. suspicious leading up Personnel of events short, 60 L.Ed.2d 870 only plaintiffs the rule. claimed (1979), recognized discriminatory intent disparate impact that sheer was sufficient showing challenged policy requires a equal protection viola- demonstrate of, adopted merely spite "because enough simply tion. This was not to defeat of, impact persons in its adverse the ... summary judg- motion for defendants' Horner, (citing Feeney, class." 43 F.3d at ment. 2282) (emphasis 442 U.S. at (internal omitted). Id. citation added). rule, panel Applying the Homer I ruled provides person 7. Title IX “[n]o that: sex, shall, United States on the basis allege did not that defendants in, participation excluded from be denied percent adopted to the or adhered rule of, subjected benefits or be to discrimination spite dispa- because of rather than in of its program activity re- education impact Nor rate on females. did come ceiving assistance!.]” Federal financial forward with evidence of in- 1681(a). U.S.C. tent, such as tainted historical back- students, were, are, of girls the interests the nities for Regarding more limit- Policy boys. I that than Interpre- respect Homer noted “the ed those for With (2), methods chosen the tation instructs the subsection level interest all of girls high fast-pitch in by the institution must be nondiscriminato- is softball respect unknown. With ry disadvantage must not members of to subsection (3), the record reflects underrepresented (citing only girls an Id. Pol- sex.” VII.C.3., are not from the icy Interpretation, prohibited playing Section 71,417). boys’ Fed.Reg. at The court held: baseball teams. The record does not disclose whether and to what extent plaintiffs court The district found that girls actually play. opportunity have an unrestricted compete upon based the interests of the added). Thus, (emphasis Id. at 274 con- n However, member schools. the interests trary to Plaintiffs’ on appeal, assertions necessarily is not the member schools this court did not I hold Homer students, a identical met their initial burden. question on which the record com- panel The forth set factors best, At pletely silent. the record re- Policy Interpretation assess insti- percent flects that 17 of the member tution’s effective accommodation having schools were interеsted fast- students’ interest in the selection of pitch softball The sanctioned. interest of competition: levels of female at other schools is students (1) intercollegiate Whether level unknown, there is no informa- participation opportunities for males and regarding tion whether the member provided female students are num- polled their schools students before re- substantially proportionate bers to their sponding, failing respond, or enrollments; respective survey. KHSAA’s (2) Where the numbers of one sex have added). (emphasis Id. underrepresented among been and are Regarding sports, the selection of athletes, intercollegiate in- whether the I panel Homer noted that IX Plain- stitution can history show a and continu- tiffs must establish that: ing practice of program expansion which

(1) opportunities The demonstrably members of responsive to devel- sex historically the excluded have oping been interest and abilities of the mem- limited; sex; bers of that (2) (3) There is sufficient interest and abili- Where members one sex are ty among the members the excluded underrepresented among intercollegiate sex to athletes, sustain viable team and rea- and the cannot institution show expectation intercollegiate sonable continuing practice of program expan- team; above, for that competition sion suсh as that cited whether can be that the demonstrated interests (3) Members the excluded sex do not and abilities of the of that members sex possess sufficient skill to be selected for fully effectively have been accommo- team, single integrated compete or to present program. dated actively on such team if selected. (quoting Policy Interpretation, Id. Section Policy Interpretation,

Id. at 274 (quoting VII.C.5.a, 71,418). Fed.Reg. at VII.C.4.b., 71,418). Fed.Reg. Section factors, factors, origi Regarding Regarding these the Homer these panel held that there nal that: panel was record evidence noted the first but support requirement, plaintiffs bear burden the second or third: (1), showing on subsection statis- (1), Roberts, respect to there is tical 998 F.2d disparity.[FN8]

With subsection 828; Cohen, opportu- evidence the record that the 991 F.2d at Sub- 696 reg implementing read a safe provides proportionality

stantial policy interpretation, of ulation and the recipients harbor proving of statistical the burden dispar- places plaintiffs prove If funds.... on squarely interest disparity and unmet must show that institution ity, then the 277 plaintiffs.” of the Id. at the shoulders If it fails it subsection satisfies (Batchelder, .J., (citing dissenting) Roberts sus- prevail by here, plaintiffs may F.2d Agric., Bd. 998 v. Colorado State sub- proof of their burden taining of (10th Cir.1993); n. 5 Cohen 829 (3) demonstrating unmet an section (1st Univ., F.2d 901-01 991 Brown underrepre- part on the of interest Cir.1993)). Roberts, F.2d at 830- 998 sented sеx. Cohen, 31; F.2d at 901. Subsection sum, I not panel In the Homer did “ (3) high standard: demands ‘sets facie prima Plaintiffs made out a hold that accommodation, merely but some violation, merely but case of a Title IX If full and effective accommodation. had established held that Plaintiffs ability sufficient interest and there is their facie case. requirement prima first un- statistically of the among members I panel specifically the Homer Notably, by gender, slaked derrepresented proof necessary advised Plaintiffs of an institution neces- existing programs, claim, their prevail grant on ” test.’ sarily prong fails this development further ed remand for Roberts, (quoting F.2d at 831-32 Notwithstanding, upon re record. Cohen, 898). 991 F.2d at summary judgment newed motions for Defendants, proof other than of statistical Although the record silent on FN8. disparity, Plaintiffs still failed offer point, the court was informed at this (65 33,891 boys equal that Title IX’s per- additional evidence argument oral violated, cent) let sports opportunity sanctioned mandate been participate (34.8) 18,860 only girls intentionally alone violated. Absent Kentucky, while violation, it predicate is axiomatic percent participate. there can be no intentional violation added). (emphasis Id. at 275 We therefore Thus, in the language Title IX. that: concluded dissent, there can be no “actual notice” that genuine It evident issues of indifference” Plaintiffs’ “deliberate case, fact abound in this material unmet interest. We therefore affirm preclude any determination that defen- summary judg court’s grant district complied have with Title IX’s dants ment, although slightly on different there- opportunity mandate. We equal grounds. entry the district fore reverse court’s summary judgment plaintiffs’ on Nevertheless, if as even we IX claims. sumed that Plaintiffs had established their case, panel prima Id. the Homer I did not hold facie we would still hold Again, that Plaintiffs had met their burden under failed establish intentional viola record, Certainly, Pro- is no Rule Federal Rules of tion. on there Civil fact, specifically discriminatory we noted that evidence animus. See cedure. dispari- Bray on Women’s Health Clin the record was silent statistical v. Alexandria ic, ty. only on proof offered U.S. (1993) (defining that of in L.Ed.2d 34 disparity,

remand was statistical support argu- at towards women in an action under of their statements oral animus 1885(3) having re- 42 “a purpose ment. no on Plaintiffs offered U.S.C. being upon were not focuses women reason mand their interests met, specifically ... despite policy allowing them to sex directed class”); Feeney, play boys’ fast-pitch women as softball teams. As (stating equal in the “Title S.Ct. 2282 dissent Homer observed: “ ‘discriminatory area”); Roberts, context that or other protection 998 F.2d at 829 ... as purpose’ implies Further, more than intent instances, n. sepa 5. certain of volition or intent as awareness conse- rate teams for males and al females are quences”). Plaintiffs no evidence offered 106.41(b) (1998) § lowed. See 34 C.F.R. any discriminatory of intent.8 Nor is there (permitting separate sports teams for proposed under the dissent’s stan- and males females where selection for the Plaintiffs not simply dard. have estab- team is competitive based on skill is a or lished that Defendants had actual knowl- sport). As pointed contact we out in Hor- edge effect of their I, regulations ner themselves do not rule, facially yet remedy neutral failed independent an impose requirement event, any In the violation. and Plaintiffs’ always an institution sponsor separate position really the dissent’s is “construc- for all sports. teams sanctioned Hor See argument tive” guise notice under I, ner (citing F.3d 34 C.F.R. the deliberate indifference test: Because 106.41(b)). Thus, § it would impossible be a boys’ fast-pitch there was softball team for Defendants to be on they notice that team, girls’ fast-pitch softball were violation Title IX simply be they must have Defendants known they sponsored only boys’ fast-pitch cause treating girls than differently boys; it Finally, undisputed softball. is that De Defendants, funding as recipients, permit try fendants female athletes to out law, charged are with notice of Title IX sports, for traditional male including con discrimination; prohibits gender which tact sports. any Absent evidence that this knowing Defendants were therefore in vio- opportunity not adequately girls’ did meet lation of Title IX. abilities, finding needs there can be no reasoning is flawed because knowingly

This Defendants violated Plain reads Title IX requiring perfect parity. as rights. tiffs’ Title IX However, discussed, just all the statute implementing regulations require 3. Gender Classification equality opportunity. of athletic The stat For appeal, the first time on require ute itself does not gender balance. argue Defendants violated 1681(b)(West 1990) §

See 20 (pro U.S.C.A. classifies its KHSAA “[njothing viding that contained subsec stated, sports gender. For the reasons (a) tion interpreted of this shall section gender classification is not a se per any to require educational institution to event, violation of Title IX. In grant preferential disparate or treatment claim is forfeited. to the members of one sex account of on an may which with respect imbalance exist Attorneys’ B. Fees percentage the total number or per Plaintiffs also claim that are sons of that sex in or participating receiv prevailing parties purposes awarding ing the federally supported pro benefits of attorneys’ gram activity, fees. This Court reviews the comparison percentage persons party total number or factual determination that a is a State, section, any community, sex in prevailing party for clear error. See equаl protection pattern, unexplainable grounds As we noted in the context clear on race, I: Horner emerges than from other the effect though governing the state action even the' Determining whether invidious discrimina- legislation appears neutral on its fact. The tory purpose motivating awas factor de- evidentiary inquiry easy. relatively inquiry then mands sensitive into such circum- are may But such cases rare. stantial direct evidence of intent as I, Village impact (quoting be available. Horner 43 F.3d official Arlington Heights v. Dev. heavily Metropolitan action—whether it "bears Hous. more 252, 266, another,” may provide Corp., one race than — (1977)). important point. starting Sometimes L.Ed.2d 450 156,070.However, Plaintiffs did not Educ., City Stat. Cleveland Payne Board of Cir.1996). (6th it is into record and Schools, enter this affidavit 88 F.3d of a motion denial before Court. USA properly reviews the This Court Richfield, discre attorneys’ for an abuse of fees Co. v. Atlantic Petroleum Cir.1994). (9th Corp., 1276, 1284 Jones Continental tion. See F.3d (6th Cir.1986). F.2d short, not shown that Plaintiffs have attorneys’ To fees .they recover parties because they prevailing are pre § must a party a be judgment,.an U.S.C. did not obtain an enforceable party, a party. prevailing To be a vailing a injunction, declaratory judgment, a or relief on must receive least some party altering legal the relation- consent decree a judgment, of his claim such as the merits Fur- ship and Defendants. between them a See injunction, consent decree. ther, record, Plaintiffs have based the 755, 760-61, Helms, Hewitt their lawsuit was an not demonstrated that 2672, 96 L.Ed.2d 654 necessary chang- factor in important ing law. the claim that Defendants practices be changed policies their Court, District of their lawsuit. The III.

cause CONCLUSION however, found no evidence for this claim. the Accordingly, judgment the district The record reflects Defendants court AFFIRMED. after Ken changed policies only their Ky.Rev. Assembly amended tucky General JONES, NATHANIEL R. Circuit 156.070, § directing Defendants to Stat. Judge, dissenting. provide fast- promulgate regulations record pitch softball. Plaintiffs offered no unnecessary majority The finds to re- evidence that lawsuit caused the despite magistrate mand this case Ky. Kentucky Assembly to amend General in this applying court’s clear error Court’s § district Rev.Stat. 156.070. The court’s majority in Horner I. The holding finding prevailing Plaintiffs were in we a discrimina- suggests dicta that use is, therefore, parties clearly erroneous. standard, tory animus rather than a delib- standard, assessing in erate indifference Nevertheless, plaintiff who is deprivation opportuni- of educational 1988, may prevailing party not a Kentucky’s high ties female school soft- attorneys’ if lawsuit also recover fees view, players. my ball Court causing primary “catalyst” that we precedent clearly dictatеs use change favorably defendant its conduct in assess- deliberate indifference standard Payne, F.3d plaintiff. toward I ing Plaintiffs’ claim. also believe that catalyst theory applies The a two- 397. opportuni- Plaintiffs should afforded the First, part plaintiffs test. lawsuit ty to meet this deliberate indifference necessary important must be factor opportunity standard below—an which Second, in achieving sought. the relief deprived magistrate con plaintiff prove changed must that the misreading court’s Court’s decision of a required duct was violation Accordingly, respectfully I Homer the law. See id: at 397-98. dissent. Plaintiffs have not demonstrat necessary ed that their lawsuit was a I. changing twenty- important factor already an affi We have delineated contours percent five rule. Plaintiffs offer Kentucky Al- previous davit from a member of the of this lawsuit in a decision. though Kentucky High Assembly stating General Plaintiffs’ defendant School (“Association”) sane- amending Ky.Rev. counsel her on Athletic Association advised baseball, recognize comply mandates, it did not laws to with Title boys’ tions IX’s practical equiva “fast-pitch” softball—the then they “intentionally” violated Title IX. prior lent of baseball for female Defendants counter that “intentional dis- athletes — filing to the of this lawsuit. See Horner v. crimination” under Title IX requires a Ass’n, High Athletic Kentucky Sch. 43 finding “discriminatory against animus” (6th Cir.1994). F.3d The essence Plаintiffs’ gender. complaint of Plaintiffs’ was that because of suggests dicta that De recognize fast-pitch failure Defendants’ likely fendants are correct in their choice schools, Kentucky competition high standard, but holds Plaintiffs lose Kentucky’s high female school softball as a matter law in either case. dis players disadvantage compet were at a agree First, with both conclusions. ing collegiate opportu for the benefits and Supreme Court has determined that a “de enjoyed by Kentucky’s nities male high liberate governs indifference” standard players. example, For baseball Title IX intentionally whether violated. significant colleges number of finan offer Ed., See v. Davis Monroe Co. Bd. 526 cial in form of assistance the athletic schol 629, 1661, 1675, 143 U.S. 119 S.Ct. L.Ed.2d players. arships for softball See id. (1999). Further, 839 magis because the Moreover, it a given many seems that trate clearly holding court misread the college improve applicant’s coaches can I, Homer I major and because believe the college’s standing with the admissions de ity essentially rewrites that decision . partment by designating applicant as a case, through ‍‌‌‌‌‌​​‌‌‌​​‌‌‌​​‌‌​‌‌‌​​​‌​‌‌​​‌​​‌‌‌‌​‌​‌‌​‌​‌‍reasoning in its ma college “recruit.” Plaintiffs theorized that has, in jority my judgment, wrongly con softball coaches were reluctant to allocate cluded that Defendants are entitled to monies, valuable or scholarship otherwise judgment summary monetary damages. on recruiting Kentucky devote to high efforts To contrary, Plaintiffs must be afford prospects, softball because Ken an opportunity ed to meet the Davis stan- tucky’s players softball were untested and n dard below. in unproven fast-pitch game. Ken high tucky’s players, school baseball

course, impediments. faced no such II. a district court Recently, observed starting point analysis The for our girls’ similar that too long, “[f]or case should be the seminal decision Bell v. op softball team has been denied athletic Hood, 773, U.S. S.Ct. 327 66 90 L.Ed. portunity equal boys’ to baseball (1946) 939 which the Court team.” Daniels v. School Bd. Brevard oft-repeated principle stated the (M.D.Fla. Co., Fla., F.Supp. 985 federally protected rights where have 1997). primary appeal The issue in this invaded, been it has been the rule from correctly court whether the district con alert beginning that courts will be to cluded produced that Plaintiffs no evidence adjust grant their remedies so as to a predi “intentional discrimination” as necessary relief. And it is also well compensatory cate for an award of dam legal rights where settled that have been ages. question An answer to this will invaded, and a federal provides statute depend entirely on the definition of “inten general for a to sue for inva- right such tional discrimination” under Title IX. sion, may any courts use avail- federal urge apply “knowledge” us to remedy good wrong able to make or a indifference” standard for “deliberate done. “intentional” violations of Title IX. Plain (footnotes Id. at 773 omit long tiffs S.Ct. contend so as Defendants ted); Coun see also Franklin Gwinnett were aware of the effect of Schs., softball, fast-pitch ty their failure to Pub. 112 S.Ct. sanction (1992) (“[Ajbsent but to modify by- nevertheless failed 117 L.Ed.2d 208 impact Title IX’s that would have limited contrary Con- direction clear see also C.F.R. power programs); have the athletic the federal courts on gress, 106.41(c) cogniza- (recipients relief of federal funds any appropriate § award pursuant to brought athletic provide equality cause of action generally ble must statute”); sexes); v. Pendleton Justice federal of both to students opportunity (6th F.3d Apartments, Place High Bd. Ed. Ohio Springs Yellow Cir.1994) (stating the burden is on Ass’n, F.2d 660-61 Athletic School Congress demonstrate that defendant Cir.1981) (Jones, (6th J., concurring part relief). requested did not intend Finally, dissenting part). the Su- Title IX recognized has preme Court ref- opinion replete The Congress’s spend- pursuant does was enacted nowhere erences to but Davis, at 1669- provisions. closely ing power. statute’s See examine analysis, Franklin, engage proper 70; in a submit that perti- funds, to the Act itself. accept we must look federal By agreeing per- “No of Title states: language nent with the еssentially contracted Defendants shall, the basis in the States son United government would in, sex, participation from be excluded gender in ath- on the basis of discriminate of, subjected or the benefits be denied Gebser, at 1997. letics. See pro- education to discrimination under implied An cause of action exists activity receiving finan- Federal gram Davis, 1669; IX. 119 S.Ct. at 1681(a). 20 U.S.C. assistance!!]” cial Gebser, 1996; Cannon, 441 at 118 S.Ct. 1972, in IX was When Title enacted 717, at As noted su- 99 S.Ct. 1946. U.S. Rights of patterned after Title VI Civil generally free “make are to pra, courts 1964, 42 seq., Act of 2000d et U.S.C. wrong when on the done” good in fed- racial discrimination which banned subject only infringed, to rights have been v. erally programs. See Cannon funded are in 677, 696, constraints. Courts limited two 441 University Chicago, U.S. of (1) (1979) (“The in- 1946, Congressional granting 60 560 relief S.Ct. L.Ed.2d 99 (2) IX explicitly contrary, purposes drafters of Title assumed is to the or tent as interpreted applied it would be frus- carrying out the statute would be of during preceding Gebser, Title VI had been at It trated. See has years.”). Supreme Court eight in- well-accepted Congress did not is Ti- primary purposes of observed that to remedies in Title tend limit available (1) tle IX “to avoid use of federal 72, Franklin, 503 IX cases. See U.S. support discriminatory prac- to resources 1986, Indeed, Congress' in 112 S.Ct. 1028. (2) tices;” “to citi- provide individual abrogated states’ Eleventh even against these protection zens effective in Title IX cases. immunity Amendment Lago Indep. practices.” v. Vista Gebser Thus, remaining question id. See 274, 1989, Dist., 118 Sch. S.Ct. to Plaintiffs damages whether award of 1997, (1998); 141 L.Ed.2d 277 see the purposes would frustrate in case Univ., Temple F.Supp. v. 524 Haffer Title IX. of (E.D.Pa.1981) (Title IX 533 was intended dicta, agree to appears guarantees “the of provide essential argument the “dis- with Defendants’ men equal in education for opportunity criminatory appropri- animus” women”) standard (quoting Cong. 118 Rec. 5808 (1972) (remarks ate here. The Court has defined' Bayh)). of Sen. Birch animus towards women fully that Congress There no doubt is also focuses wom- having purpose upon “a gender equi- IX mandate intended Title ... by reason of their sex directed id. en ty programs. scholastic athletic See Bray specifically at women as class.” legislative history (recounting 534-36 Clinic, Health 506 Alexandria Women’s subsequent defeat of various measures

701 college 113 sports programs grew en’s only U.S. (1993). that, I believe 89 percent, compared percent L.Ed.2d 34 short to 139 men, in actually defying representing percent a court 23 only a defendant junction, operating expenses. the “animus” standard will almost total athletic-equity be met in a Title never Education, Department United States Ass’n v. Serv. case. Guardians Civil Cf. Progress, Title IX: 25 Years Part 6 City, New York Comm’n (1997). study Another conducted on Title (1983) L.Ed.2d 866 IX’s Anniversary Silver concluded that (Marshall, J., dissenting). while there had “significant gains” been opportunities athletic college for female maintaining gender The excuses for not students, athletic equity programs scholastic are gains girls

all too familiar. School administrators these still leave and women usually justify op opportunities differences athletic without fair share of compete. of a portunities Only between sexes because percent Division ability I misperceived colleges provide lack interest or athletic opportunities athletes, among or of a female within percentage points women status altering quo belief in athlet women’s share of enrollment. Even programs among ic is not worth inconvenience Division schools that do not football, expense. generally Colgate sponsor only percent Cook even Univ., (N.D.N.Y. F.Supp. 746-50 close to providing come women with ath- 1992) col (addressing various defenses for letic opportunities proportion wom- failure lege’s grant varsity body. status to en’s enrollment in the student team), moot, hockey women’s vacated as Center, National Women’s Law Title IX at (2d Cir.1993); 992 F.2d 17 Daniels v. 25: Report Equity Card on Gender Co., Fla., Bd. School Brevard study gave This educational institutions an (M.D.Fla.1997) (school F.Supp. grade overall for Title IX compli- “C” argued board that it was too expensive programs. ance in athletic Id. remedy existing inequities between softball statistics, these recent I am Despite nоt programs); and baseball Pederson v. Lou IX athletic-equality aware of Title case Univ., 892, isiana State 912 F.Supp. 918 in the plaintiff which could have met the (M.D.La.1996) (Title IX violations were overdemanding standard of in- “animus” ignorance, of arrogant “result confusion explained tentional As discrimination. regarding practical requirements the of above, gender inequities in athletic oppor- law, remarkably and a view outdated always are more not tunities often-if of women and athletics which created misperceptions, ignorance, result of or an of to by-product change”). resistance quo status unwillingness alter the rath- Yet, purported “unintentional” violations er than a conscious to treat wom- decision of Title IX are in pervasive our educational differently they en are women. institutions even a after quarter-century Because the “animus” standard ensures statute’s enactment. While much has will virtually Title defendants be changed pas- for female athletes since the judgment, impervious money to a IX, sage of Title much remains the same. rectify any inequi- have little incentive to According Department Edu- of judi- in until programs ties their athletic cation, 1997, in Instead, cially directed. the “animus” level, still high

[a]t there are standard allows defendants to remain 24,000 boys’ varsity blissfully ignorant about more teams of their Title IX obli- girls’ teams; in college, than re- gatiоns having pay women little fear of only of damages depriving ceive one-third all athletic schol- for their students of and, 1997, arships; equal opportunities. 1992 For rea- between athletic son, operating expenditures overall for wom- I believe the standard is antithetical 702 case, only filed opinions en in Justice Title frus- purposes of the remedial a opinion suggested standard White’s the Act’s promoting, than

trating, rather at discrimination.” See id. “intentional Gebser, 118 S.Ct. at 2005 goals central See (“I 584, 103 ... 3221 conclude S.Ct. J., (Stevens, dissenting). discriminatory ani proof absence mus, relief compensatory should III. plaintiffs”) private VI awarded Moreover, I believe the standard itself 27, (White, J.); n. 3221 id. at 607 legal sole flimsy ground. on rests (same). Only justice joined Jus one other “discriminatory animus” for the source tice on this issue. See id. White opin- plurality standard is Justice White’s J., concurring (Rehnquist, 103 S.Ct. 3221 Guardians, 463 103 ion in Indeed, has judgment). this Court J.). (White, Guardians, 3221 expansive declined to take an already minority employees civil in New class opinion of Justice White’s reading City brought an action under York very that it did for the reason Guardians Rights Act of con- Civil VI majority command of the Court. hired, city’s first tending that “last Canton, Action Coalition v. Neighborhood disparate mi- had a effect on policy fired” (6th Cir.1989); Ohio, F.2d nority workers. York Bd. see also Bartlett v. New State Exam’rs, 1094, 1148-49 F.Supp. Law was “whether The issue Guardians (S.D.N.Y.1997), part, in relevant intent re- [was] aff'd. (2d Cir.1998), othеr vacated on F.3d of Title violation quired establish — U.S. -, grounds, (Marshall, Id. at 103 S.Ct. 3221 VI[.]” (1999);2 v. Texas L.Ed.2d 790 Moreno J.; opinions Seven were filed dissenting). Univ., F.Supp. Southern case, in the Guardians in which consen- (S.D.Tex.1983) (recognizing that Justice First, emerged majority sus twice. damages not the opinion White’s injunctive and de- agreed the Court Court); opinion Tyler City claratory relief were available so-called (10th Manhattan, 118 F.3d Cir. Title VI. “unintentional” violations of Sec- 1997) (Jenkins, J., dissenting). ond, a different of the Court re- jected argument My position opinion workers’ mone- that Justice White’s kept proper within its bounds is tary damages were recoverable cases must be supported by subsequent Supreme Of further unintentional discrimination.1 the sev- would hold that all should be Justice White summarized various votes relief discriminatory as follows: intent denied unless Despite proved. It of these opinions, the views follows from views numerous of at five Justices on two issues are compensatory least no three latter Justices dissenters, identifiable. BRENNAN, MARSHALL, JUSTICES discriminatory should awarded if relief be BLACKMUN, is not animus shown. STEVENS, join a with me form 27, U.S. at S.Ct. 3221 Id. 463 607 n. 103 validity upholding majority for (White, J.). regulations incorporating disparate-im- 2, pact ‍‌‌‌‌‌​​‌‌‌​​‌‌‌​​‌‌​‌‌‌​​​‌​‌‌​​‌​​‌‌‌‌​‌​‌‌​‌​‌‍supra. A See n. different standard. light 2. was vacated in Bartlett of however, majority, would not com- allow scope limiting recent Court's decisions pensatory relief in the absence "disability” the ADA. Sutton v. under See discriminatory intent. JUSTICE REHN- Lines, 471, Inc., Air 527 U.S. 119 S.Ct. United QUIST directly. I rеach this conclusion 2139, (1999); Murphy 450 v. 144 L.Ed.2d 612, IV, supra; post, See III and at Parts Inc., 516, Serv., 119 United Parcel 527 U.S. J„ (REHNQUIST, 103 S.Ct. 3221 concur- 2133, (1999); 144 484 Albert S.Ct. L.Ed.2d POWELL, ring judgment). in JUSTICE 555, sons, Kirkingburg, v. 527 119 Inc. U.S. JUSTICE, joined by post, at THE CHIEF 2162, (1999). 144 Never L.Ed.2d 518 S.Ct. 3221, believes that no theless, I still find Bartlett’s discussion of granted private be relief should ever damages be a of the law. correct statement Title VI under circumstances. JUS- O'CONNOR, 615, post, TICE

703 A Court requisite Court decisions. unanimous ex standard as a for monetary re in holding an plained opin the Guardians covery under Title but instead ruled “A following ion issued the term: that a “deliberate indifference” standard agreed Court ret [Guardians] would support finding of intentional dis plain private roactive relief available to Davis, crimination. plaintiff discrimination, tiffs for all whether inten brought IX a Title action her after com unintentional, tional or is actionable plaints by sexual harassment a fellow under Title Rail Corp. VI.” Consolidated ignored classmate were school officials. Darrone, 624, 9, v. 465 n. 670 104 Davis, See 119 S.Ct. at 1666-67. The 1248, S.Ct. L.Edüd It 79 568 Court noted that the split circuits were seems to that if me the Guardians Court the standard of intentional discrimination did compensatory indeed limit relief to eases, in Title IX sexual harassment cases of discrimination intentional involv that one circuit endorsed the “animus” animus, ing discriminatory such limita monetary standard for recovery Title IX tion acknowledged would have been (citing cases. See id. at 1668-69 Rowinsky Corporation’s explana Consolidated Rail Dist., Bryan v. Indep. Sch. F.3d 80 Bartlett, tion of Guardians. 970 (5th Cir.1996) (allowing recovery only Additionally, F.Supp. 1148-49. another upon showing responded that school limited explicitly unanimous Court Guard harassment differently claims on the basis involving pecu ians to situations “factors gender)). Rejecting Rowinsky and the liar to when it Title VI” refused read an very § requirement intent the Reha “animus” standard urged Defen dants, § bilitation Act of 701 et U.S.C. IX Court held that Title “makes seq., which was another Spending Clause clear that ... students must denied antidiscrimination statute. See Alexander access to opportu educational benefits and Choate, v. n. 294-95 105 nities on of gender,” the basis and that (1985).3 L.Ed.2d such denial of benefits is to be measured from a “deliberate indifference” an

Finally, and most significantly, and/or knowledge” “actual recently Court was standard. Id. 119 presented Davis with opportunity apply animus S.Ct. at 1675. Rather, Incidentally, very courts have been hesitant class these cases. these defendants § plaintiffs to hold to the "animus” stan obligations were "indifferent” their federal requisite compensatory dard as a relief. very much like defendants in Title athletic See, Bartlett, 330-31; e.g., 156 F.3d at Greater Nonetheless, statutory cases. violations Zolin, Angeles Los Council on Deafness were still "intentional” because defen- (9th 1987) F.2d (allowing 1106-09 Cir. knowledge dants had full of their own dis- monetary action for relief for criminatory conduct. As the Second Cirсuit provide interpreters plain refusal to tiffs); to deaf explained: Missouri, Miener State 673 F.2d may be [I]ntentional discrimination in Cir.1982) (8th (compensatory 978-79 re "policymaker ferred acted with at plaintiff; complaint lief available for strong least deliberate to the indifference gave adequate defendants notice that federally that a likelihood violation charged violating federal antidis- protected rights will the result from im mandates); McBride, crimination Love v. 896 [challenged] plementation policy of the (N.D.Ind.1995) F.Supp. (refusing 810 to Ferguson City ... [or] custom.” plaintiff repeated despite accommodate re Phoenix, (D.Ariz.1996), F.Supp. 697 discrimination), quests for access amounted to intentional and remanded F.3d 668 [157 (7th d, aff 103 F.3d 558 Cir. 'd aff' ...; (9th 1998)] Cir. see also Canton 1996). Harris, 378, 385, U.S. cases, funding In each of these the federal L.Ed.2d recipient equal opportunity denied to the Bartlett, Second 156 F.3d 331. The Cir- plaintiff by refusing provide to an ac- understanding cuit's discrimi- "intentional plaintiff's for disability. commodation the perfect nation” is the Surely against accordance with Su- there was no "animus” the plaintiff individually preme disabled either or as a Court's decision in Davis. Furthermore, I can view, abundantly significance. discern

In makes my Davis determining the Defen- practical clear that crucial factor no difference between intentionally vio- university’s whether a defendant has a policy” dants’ “neutral Besides, Davis lated Title IX is notice. the affirmatively gauge failure interest opinion. a Rath- hardly revolutionary was among its fast-pitch for softball student er, marks the third time that decision the liability body. incongruent I find it in- has a the articulated “deliberate Court by measured under the former should be liability difference” standard for Title IX by the latter a an “animus” standard while and Franklin this decade. Both Gebser “deliberate indifference” standard even against IX filed involved a Title lawsuit though both arise under violations sexually district after teacher had school same statute. Franklin, student-plaintiff. abused that such a also believe distinction dam- compensatory authorized Court Davis, support finds as Court no time, ages IX the first under Title for that Title IX again protects reminded us point of reasoning permit- not “[t]he students, not schools: ting monetary damages an unintention- for entity al receiving violation is that Consider, example, for a case in which lacks notice that it will be for a liable physically male threaten their students problem The does monetary award. notice every day, successfully peers female this, not in a such in which arise case preventing the female students from us- alleged.” intentional discrimination is ing particular school resource-an ath- Franklin, 503 lab, computer in- letic field 1028. Court ruled that the defendant- The well stance. District administrators are “intentionally” distriсt school had violated ritual, daily yet they aware of delib- Title IX because officials were ignore aid erately requests for from investigated “aware of and [the teacher’s] female to use the re- wishing students of Franklin other sexual harassment knowing source. The district’s refusal no to halt [but] female students took action response to take action to such discouraged Franklin from pressing fly behavior would the face of Title 64- charges against Id. at [the teacher].” IX’s principles, core and such deliberate Conversely, in a simi- may sub- appropriately indifference later, years lar situation six the Court held ject monetary damages. claims intentionally the defendant not Davis, violated Title it had no notice because why IX 119 S.Ct. at 1675. I fail to see Gebser, the sexual harassment. See rule apply the above does Defen- (noting plaintiffs S.Ct. at 1999-2000 dants in If a IX this case. defendant they prevail admitted that could intentionally edu- deprives student of standard). an “actual notice” opportunities cational when it fails to curb then parties, harassment caused third meaning majority suggests surely intentionally a defendant likewise and Davis unclear Gebser is deprives opportunities students of those readily analogous “are not rectify inequities when it fails athletic present at 692. situation.” Ante On policy.” caused a “neutral In each hand, concludes, оther situation, being the student denied Id. “equivalent.” Guardians this case’s her use school resources on the basis of Given that that Title IX’s Davis holds evil de- gender-precisely the regulations put funding recipients situation, duties, signed And in each prevent. on notice their contractual depri- the defendant is “well given regulations that the that Title aware” state opportunities. in IX is vation of It follows that poli- violated when school’s athletic situation, effect, monetary ma- each cies are in the relief should jority’s distinguishing of Davis is without available.

IV. effect, reading its this proper simply I, echoes the dissent in which Homer Finally, disagree majority’s with the I that reasoned because Plaintiffs “did not and decision to overlook the district court present prima below, facie case of a Title IX magistrate court’s error an error violation,” judgment I the deprived summary which believe Plaintiffs of should have opportunity satisfy the deliberate indif- been on granted the Title IX claim. 43 reviewing responsi- ference standard. Our (Batchelder, J., at 276 F.3d in dissenting error, bility is not rationalize it. to correct part). Similarly, the majori- current ty that majority magis- summary judgment now concludes concedes the “technically trate court was in incorrect” is warranted because Plaintiffs have I holding opinion that the Homer estab- “failed to offer additional evidence” lished that there was no intentional dis- violated, that Title IX had been it again purposes crimination for Title IX as a mat- roughshod I runs over the Homer conclu- majority ter of law. Ante at As the 694. dispute sion that there awas sufficient in acknowledges, original panel held “that summary the record to withstand judg- genuine regard- there were issues fact again, ment. Yet the majority’s conclusion IX ing a Title violation.” Id. Yet closely more I adheres the Homer dis- magistrate court improperly applied the sent, which found record “silent or summary I panel’s judgment Homer inadequate” on “upon otherwise the issues IX equal protection claim the Title plaintiffs’ which the depends,” case and claim, concluding, law, matter as a castigated which the Plaintiffs’ statistics there was un- no intentional discrimination showing disparity boys’ between and der Title J.A. at It IX. 340. further stated girls’ high in participation Kentucky that Plaintiffs had not offered additional (Batchelder, sports. J., F.3d at regarding evidence intentional discrimina- dissenting sum, in I part). do not remand, tion since the and thus declared this Court its stamp approv- believe should monetary damages Plaintiffs’ claim for al on the mishandling district court’s clear “not viable.” J.A. at Despite this remand, Homer I let alone rewrite I, misreading clear of Homer rather than majority the conclusion of Homer I’s for the remanding district court to assess the voice its dissent. whether Defendants in- deliberately different tо Plaintiffs’ IX rights, Title Second, I contrary majority, be- majority still finds for Defendants. certainly possible lieve it is that the stan- First, I find I unacceptable. this result of notice dards and deliberate indifference think majority’s discussion improperly could be met in this case. Defendants dispute already revisits and re-decides the were, all, after the sole could entities dissent, resolved Homer I. Over a sports sanction interscholastic Ken- majority Homer I that “genuine concluded implemented and tucky, pitch slow softball case, issues of material fact abound argue 1982. Nor can Defendants preclude any determination that De- unfairly by im- “surprised” would be complied fendants have IX’s Title award, position monetary of a as were the equal opportunity mandate.” 43 F.3d years defendants Guardians. Three basis, 275. On this reversed district slow-pitch before Defendants sanctioned entry summary judgment court’s softball, Health, Department Edu- Nevertheless, Defendants. Policy cation Welfare issued its Inter- now I states that Homer “did not hold of Title IX. See IX the pretation prima that Plaintiffs made out a facie case 1972; A Policy Education Amendments violation,” of a Title IX Ante at Intercollegi- proceeds grant Interpretation; I summary judgment. (Dec. Athletics, 71,413 Fed.Reg. believe rather giving than Homer ate 706

1979).4 attorney until after explicit- purposes fies” for fees Policy Interpretation or finding compliance ly the remand. states IX would be with Title noncompliance fund- the federal

based in on whether part V. programs “are dis- ing recipient’s athletic for the I believe that basis Because Id. criminatory language effecfi.]” majority’s contrary is to affirmance 71,417, 71,418; also 34 C.F.R. see of Title I dissent. (“[wjhether purposes remedial 106.41(c)(1) § selection effectively competition and levels of sports and abilities of interests

accommodate is to be consid- members of both sexes” reg- compliance). IX These ered for Title to defen- provided ulations clear notice obligations. IX See dants of their Title (Title Davis, IX 119 S.Ct. at recipi- regulations funding inform federal duties).5 Provid- of their contractual ents America, UNITED STATES from ing an free discriminato- environment Plaintiff-Appellee, IX. ry effect is a of Title requirement with charged Because Defendants are law, recog- but did not knowledge Jeffrey BEAVERS, Defendant- 1994, it follows nize softball until fast-pitch Appellant. determine appropriate remand No. 99-1829. deliberately in- whether Defendants were IX rights. different to Plaintiffs’ of Appeals, United States Court reasons, foregoing For I would re- Sixth Circuit. court’s of Plain-

verse the district dismissal Argued: 1999. Dec. monetary relief remand tiffs’ claims of for determination of whether Defendants and Filed: Feb. 2000. Decided deliberately indifferent to Plaintiffs’ Davis. rights Title IX accordance with judgment as to would rеserve par- “prevailing

whether Plaintiffs were interpreted programs Policy Interpretation 4. The cited tle VI to bar with has been was courts, Guardians, approval by including this discriminatory impact. with several See Horner, 273-74; J„ 629-30, (Marshall, one. See 43 F.3d at Cohen 103 S.Ct. 3221 Univ., (1st Cir. Brown F.3d Alexander, dissenting). the Court theorized 1996). Congress that because was well-aware of Title regulations prohibiting a VI reasoning respect Although similar effect, steps took no to restrict ‍‌‌‌‌‌​​‌‌‌​​‌‌‌​​‌‌​‌‌‌​​​‌​‌‌​​‌​​‌‌‌‌​‌​‌‌​‌​‌‍the reme- but garner regulations major- Title Vi’s failed (which § dies available under was based Guardians, ity view in see U.S. at VI), Congress implicitly rejected on then (Marshall, J., dissenting), there 103 S.Ct. 3221 § an "intentional” standard for 504 viola- now, every subse- reason fullness of Alexander, U.S. at n. tions. 294-95 quent developments, to accord much more enacted 105 S.Ct. 712. Because Title was convincing argu- force to Justice Marshall’s only year § before one seems safe regard ments with to Title IX. Another reason ap- suggest implicit assumption that the same why the Alexander Court limited Guardians Indeed, plies to Title IX. because Davis relies because, by was Title VI cases the time Department Title IX of Education’s enacted, Title VI had been in force for regulations providing adequate notice Alexander, nearly a decade. 469 U.S. at obligations, their Title IX Davis defendants of n. 105 S.Ct. 712. Title Vi’s en- 294-95 arguments is a of Justice Marshall's regulations validation incorporated a dis- forcement had Davis, standard, parate in the of Title IX cases. See impact nearly 40 federal context agencies adopted standards which Ti- 119 S.Ct. at 1671.

Case Details

Case Name: Horner Ex Rel. Horner v. Kentucky High School Athletic Ass'n

Court Name: Court of Appeals for the Sixth Circuit

Date Published: Mar 20, 2000

Citation: 206 F.3d 685

Docket Number: 97-6264

Court Abbreviation: 6th Cir.