BETH PEDERSON; LISA OLLAR; SAMANTHA CLARK, Individually and on behalf of all others similarly situated, Plaintiffs-Appellants, versus LOUISIANA STATE UNIVERSITY; WILLIAM E. DAVIS, Individually and in his official capacity as Chancellor of Louisiana State University; JOE C. DEAN; ELAINE D. ABELL; CLARENCE L. BARNEY; MILTON C. CHAPMAN; ELENORA A. CAWTHON; DAVID CONROY; CHARLES V. CUSIMANO; GORDON E. DORE; JANICE M. FOSTER; JIMMY A. LALONDE, JR.; JOSEPH LESAGE, JR.; ROLFE MCCOLLISTER, JR.; ROGER H. OGDEN; NICHOLAS SMITH, JR.; JOSEPH L. WAITZ; CHARLES S. WEEMS, III; JOHN R. WILLIAMS; MILTON J. WOMACK; ALL DEFENDANTS Defendants-Appellees.
No. 94-30680
No. 95-30777
No. 96-30310
No. 97-30427
No. 97-30719
IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT
January 27, 2000
Before KING, Chief Judge, and STEWART, Circuit Judge, and LITTLE, District Judge.
Before KING, Chief Judge, and STEWART, Circuit Judge, and LITTLE, District Judge.*
CARL E. STEWART, Circuit Judge:
We must today determine whether the largest public university in Louisiana has discriminated against women under Title IX in the 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
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
Subsequently, plaintiffs Cindy and Karla Pineda (“Pineda Plaintiffs” and, together with Pederson Plaintiffs, “Appellants“) sought to intervene in the original action.
In the course of the litigation, the district court denied Appellants’ motions for preliminary injunctions. On September 14, 1995, it granted Appellees’ motion for partial summary judgment, dismissing for lack of standing Appellants’ claims for
Those female students enrolled at LSU since 1993 and any time thereafter who have sought or seek to participate in varsity intercollegiate athletics at LSU but who are or were not allowed such participation due to LSU‘s failure to field teams in said female varsity athletics.
The district court conducted trial on Appellants’ surviving claims from October 10, 1995, through November 8, 1995. On January 11, 1996, the district court entered an order decertifying the class because the numerosity requirement of Federal Rule of Civil Procedure 23(a) (“Rule 23(a)“) had not been met and because a class was not needed to obtain the requested relief. On January 12, 1996, the district court entered its opinion on the merits finding that Appellees were in violation of Title IX. See Pederson v. Louisiana State Univ., 912 F. Supp. 892, 917 (M.D. La. 1996). The district court ruled, however, that Appellees did not intentionally violate Title IX and therefore would not be liable for monetary damages. The district court also dismissed the claims of the Pederson Plaintiffs for lack of standing. As a result of its finding that Appellees were in violation of Title IX, the district court ordered Appellees to submit a plan for compliance with the statute (the “Compliance Plan“).
The Pederson Plaintiffs filed a notice of appeal on January 12, 1996 from the district court‘s order. The notice of appeal encompassed all prior district court orders. On June 9, 1997, the Pineda Plaintiffs filed a notice of appeal from the district court‘s May 9, 1997 order approving the Compliance Plan. The notice of the appeal encompassed all prior district court orders. On July 24, 1997, Appellants collectively filed a notice of appeal from the final judgment entered on July 1, 1997. In this consolidated appeal, Appellants challenge the district court‘s decision to decertify the class, the district court‘s conclusion that Appellees did not intentionally violate Title IX, the district court‘s decision to dismiss the Pederson Plaintiffs’ claims for lack of standing, and the district court‘s conclusion that Appellants lacked standing to pursue their claims alleging a lack of equal treatment in existing LSU varsity sports.
Prior to the entry of final judgment against Appellees, the Supreme Court decided Seminole Tribe v. Florida, 517 U.S. 44 (1996). In their answer to both complaints, Appellees had pled the affirmative defense of Eleventh Amendment immunity. In light of Seminole Tribe, Appellees filed a Rule 12(b)(1) motion to dismiss on May 14, 1996, contending that Eleventh Amendment sovereign immunity deprived the court of subject
II. Jurisdiction
We begin our analysis by determining our jurisdiction to entertain these appeals. We must address the jurisdictional issues of standing, mootness, state sovereign immunity, and class certification; we address these issues in no particular order.5 We proceed, first, by reviewing the district court‘s decision to decertify the class it provisionally certified on September 14, 1995. Next, with regard to standing, we determine whether the district court correctly determined that the Pederson Plaintiffs lacked standing to pursue their claims and whether it correctly determined that Appellants lacked standing to pursue their claims of unequal treatment in existing varsity sports at LSU. Third, we examine Appellees’ contentions regarding mootness. Finally, we determine whether the doctrine of sovereign immunity bars suit in this case.
A. Class Decertification
We review a district court‘s class certification decisions for abuse of discretion.6 See Shipes v. Trinity Indus., 987 F.2d 311, 316 (5th Cir. 1993); Merrill v. Southern Methodist Univ., 806 F.2d 600, 607 (5th Cir. 1986). “[T]he district court maintains great discretion in certifying and managing a class action. We will reverse a district court‘s decision to certify a class only upon a showing that the court abused its discretion, or that it applied incorrect legal standards in reaching its decision.” Mullen v. Treasure Chest Casino, LLC, 186 F.3d 620, 624 (5th Cir. 1999). The decision to decertify a provisionally certified class is a class certification decision and, as such, is reviewed for abuse of discretion. See Mooney v. Aramco Services Co., 54 F.3d 1207, 1212 (5th Cir. 1995); Briggs v. Anderson, 796 F.2d 1009, 1017 (8th Cir. 1986).
In the district court, Appellants sought to certify the class of “all LSU women students enrolled at any time since February, 1993 or who seek to enroll or become enrolled during the course of this litigation and who seek or have sought to participate and or were deterred from participating in varsity intercollegiate athletics funded by LSU.”7 Memorandum Ruling
provisional certification will require plaintiffs, before judgment is rendered, to further support their assertion that the joinder of potential class members is impracticable. . . . In particular this Court is concerned that plaintiffs cannot show that one major argument on numerosity is causally weak, i.e. whether women who participate in intermurals [sic] at LSU would have the ability or interests to compete at the varsity level at LSU.
Memorandum Ruling of Sept. 14, 1995, at 10-11. Following the close of evidence at trial, both sides briefed the issue of numerosity. Ultimately, the district court decertified the provisional class. See Memorandum Ruling of Jan. 12, 1996, at 8-9. It stated that it had “cautioned plaintiffs’ counsel in its original ruling that the evidence presented on numerosity was not sufficient to uphold a class certification and granted plaintiffs the opportunity to bolster that information. [It] remain[ed] unconvinced that such numerosity exists.”8 Id. at 4-5.
Appellants challenge the decertification of the putative class. It is important for our purposes to recognize that Appellants do not challenge the district court‘s redefinition of the putative class; they merely challenge the district court‘s decision to decertify the redefined class.9 The precise question before us, therefore, is whether the district court abused its discretion when it decertified, on the grounds of lack of numerosity and lack of necessity, the class of “[t]hose female students enrolled at LSU since 1993 and any time thereafter who have sought or seek to participate in varsity intercollegiate athletics at LSU but who are or were not allowed such participation due to LSU‘s failure to field teams in said female varsity athletics.” Memorandum Ruling of Jan. 12, 1996, at 4.
Appellants’ major contention appears to be that the evidence presented at trial clearly satisfied the numerosity requirement and that the district court‘s decertification order, therefore, erroneously assessed that evidence. Appellants also
The district court made clear that its decertification decision, in all aspects relevant to this discussion, rested on Appellants’ inability to satisfy the numerosity requirement. Moreover, in its September 14, 1995, Memorandum Ruling, the district court explained that Appellants had failed to provide evidence that members of the intramural and club teams had the desire or ability to compete at the varsity level. Appellants are correct, however, that the district court failed to identify specific findings of fact to support its conclusion that the numerosity requirement had not been met. Both parties briefed the numerosity issue following the close of evidence at trial. These briefs detailed the evidence in favor of and against a conclusion that the numerosity prong of Rule 23(a) had been satisfied. This same evidence is reiterated in the briefs prepared on appeal.
At trial, Appellants established that a number of current LSU female students had a desire to try out for varsity soccer or fast-pitch softball.10 Appellees admit that eight people showed up for varsity soccer tryouts. These eight, however, do not constitute the sum total of class members. The class consists of all “female students enrolled at LSU since 1993 and any time thereafter” who wish to participate. Plaintiffs established that, around the time of trial, well over 5,000 young women were playing soccer or fast-pitch softball at the high school level in Louisiana. They also established that many former members of a Baton Rouge soccer club received scholarships to play intercollegiate soccer. As Appellees point out, these women, because they are not students at LSU, are not members of the putative class. However, considering the talent pool in Louisiana established by these figures and the number of LSU students who come from Louisiana, Appellants have established that numerous future female LSU students will desire to try out for varsity soccer and fast-pitch softball. To satisfy the numerosity prong, “a plaintiff must ordinarily demonstrate some evidence or reasonable estimate of the number of purported class members.” Zeidman v. J. Ray McDermott & Co., Inc., 651 F.2d 1030, 1038 (5th Cir. 1981). The evidence presented brings Appellants’ assertions as to numerosity beyond the “mere allegation that the class is too numerous to make joinder practicable” which, by itself, is insufficient. Fleming v. Travenol Laboratories, Inc., 707 F.2d 829, 833 (5th Cir. 1983).11
Our independent review of the record satisfies us that the numerosity prong has been satisfied. Because the district court failed to identify specific findings that led it to conclude that the numerosity prong
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 ruled that the Pederson Plaintiffs lacked standing to bring suit for violations of Title IX and that all Appellants lacked standing to challenge LSU‘s existing varsity program. We review each ruling in turn.
1. Legal Principles
“Jurisdictional questions are questions of law, and thus reviewable de novo by this Court. . . . If the district court resolves any factual disputes in making its jurisdictional findings, the facts expressly or impliedly found by the district court are accepted on appeal unless the findings are clearly erroneous.” In the Matter of the Complaint of Tom-Mac, Inc., 76 F.3d 678, 682 (5th Cir. 1996) (internal citations omitted). “A question of standing raises the issue of whether the plaintiff is entitled to have the court decide the merits of the dispute or of particular issues. Standing is a jurisdictional requirement that focuses on the party seeking to get his complaint before a federal court and not on the issues he wishes to have adjudicated.” Cook v. Reno, 74 F.3d 97, 98-99 (5th Cir. 1996) (internal quotations and footnotes omitted).
To have standing, a plaintiff must establish three elements:
First, the plaintiff must show that it has suffered an injury in fact--a harm suffered by the plaintiff that is concrete and actual or imminent, not conjectural or hypothetical. Second, the plaintiff must establish causation–a fairly traceable connection between the plaintiff‘s injury and the complained-of conduct of the defendant. Lastly, there must be redressability--a likelihood that the requested relief will redress the alleged injury.
Sierra Club v. Peterson, 185 F.3d 349, 360 (5th Cir. 1999). Additionally, courts have refused to adjudicate cases that raise only generalized grievances. “A generalized grievance is a harm shared in substantially equal measure by all or a large class of citizens. The prudential principle barring adjudication of generalized grievances is closely related to the constitutional requirement of personal injury in fact, and the policies underlying both are similar.” Walker v. Mesquite, 169 F.3d 973, 979 n.16 (5th Cir. 1999) (internal citations and quotation marks omitted).
Finally, the doctrine of standing is distinguishable from that of mootness. The Supreme Court has acknowledged “mootness as ‘the doctrine of standing set in a time frame: The requisite personal interest that must exist at the commencement of the litigation (standing) must continue throughout its existence (mootness).‘” United States Parole Comm‘n v. Geraghty, 445 U.S. 388, 397 (1980) (quoting Monaghan, Constitutional Adjudication: The Who and When, 82 YALE L.J. 1363, 1384 (1973)).
The district court determined that the Pederson Plaintiffs--Pederson, Ollar, and Clark--lacked standing to bring claims for equitable or declaratory relief. With regard to Ollar and Clark, the court found that they “were ineligible to compete in intercollegiate athletics after May, 1995 under the regulations of the National Collegiate Athletic Association [(“NCAA“)].” Pederson, 912 F. Supp. at 907. The court found that Pederson retained NCAA eligibility and had made the team, but she quit the team for financial reasons and was, at the same time, cut from the team due to a lack of skill. Id. at 907 & n.34. The court further found that LSU had no men‘s varsity soccer team and that it provided men and women the same opportunity to participate in club soccer. Finally, the court found that the Pederson Plaintiffs did not establish the ability to play soccer above the club level and that they did not establish the interest or ability to play any sport other than soccer. The court therefore concluded that “LSU‘s alleged violation of Title IX by not providing additional athletic opportunity to its female students in no way personally impacted these three plaintiffs.” Id. at 907. Absent any personal impact, the court determined that the Pederson Plaintiffs lacked standing and dismissed their claims.
The district court failed appropriately to evaluate the Pederson Plaintiffs’ standing. First, the district court addresses each plaintiff‘s NCAA eligibility at the time of trial. Eligibility at the time of trial, however, implicates mootness; it has no bearing on the particular litigant‘s standing at the time the suit was filed.12
Second, the district court‘s conclusion that LSU provided men and women the same opportunities to play soccer and that, therefore, LSU‘s Title IX violation did not impact the Pederson Plaintiffs reaches the merits of the Pederson Plaintiffs’ effective accommodation claim. The Pederson Plaintiffs claim that LSU, by failing to field a women‘s varsity soccer team, ineffectively accommodated the interests and abilities of female students at the school. Whether or not the Pederson Plaintiffs produced evidence at trial sufficient to establish this alleged violation is the very heart of the matter in their case and does not implicate standing. Standing requires alleged misconduct, not proven misconduct. To the extent that the district court reached the merits of the Pederson Plaintiffs’ claims in its opinion, we remark only that “[i]t is inappropriate for the court to focus on the merits of the case when considering the issue of standing.” Hanson v. Veterans Admin., 800 F.2d 1381, 1385 (5th Cir. 1986).
Third, the district court misconceived the level of injury necessary to establish standing in this area. The district court‘s focus on the ability of each Pederson Plaintiff to secure a position on the varsity soccer team was misplaced. This inquiry will be appropriate in the determination of damages during Stage II. If the Pederson Plaintiffs have standing and succeed on their violation claims, then each plaintiff‘s ability to secure a 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
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
Second, we find the Supreme Court’s Equal Protection jurisprudence instructive. In the context of set-aside programs, the Court has stated:
When the government erects a barrier that makes it more difficult for members of one group to obtain a benefit than it is for members of another group, a member of the former group seeking to challenge the barrier need not allege that he would have obtained the benefit but for the barrier in order to establish standing. The “injury in fact” in an equal protection case of this variety is the denial of equal treatment resulting from the imposition of the barrier, not the ultimate inability to obtain the benefit. And in the context of a challenge to a set-aside program, the “injury in fact” is the inability to compete on an equal footing in the bidding process, not the loss of a contract. To establish standing, therefore, a party challenging a set-aside program . . . need only demonstrate that it is able and ready to bid on contracts and that a discriminatory policy prevents it from doing so on an equal basis.
Northeastern Florida, 508 U.S. at 666 (citations omitted). Violating
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
3. Unequal Treatment Claims
Appellants also challenge the district court’s determination that they did
The district court found that Appellants had standing to challenge the lack of effective accommodation but not the denial of equivalence in other athletic benefits. Appellees defend the district court’s conclusion on the ground that persons who never participated in intercollegiate athletics have no standing to challenge the treatment of existing athletes.
We agree with the district court that Appellants lack standing to challenge the alleged unequal treatment of varsity athletes at LSU. At the time of trial, no named plaintiff was a member of a varsity team.13 Moreover, the class that Appellants seek to represent includes women injured by LSU’s failure to field teams for certain sports. Standing to challenge effective accommodation does not automatically translate into standing to challenge the treatment of existing varsity athletes. See Boucher, 164 F.3d at 116 (“The [district] court held that since none of the named plaintiffs were varsity athletes, they did not have standing to assert the equal treatment claims. Its ruling on this issue was proper and we affirm the dismissal of plaintiffs’ equal treatment claims . . . .“). Because we agree substantially with the reasoning set forth by the district court in its September 14, 1995, Memorandum Ruling, for further explanation we rely on the district court’s discussion.14
We note, additionally, that we would be unable to reach the merits of this claim even were Appellants to have standing. We determined, supra, that the putative class is not properly certified, and we determine, infra, that the claims for injunctive relief have been rendered moot as to the named plaintiffs by reason of their graduation; because there is no proper party before us to raise this issue, we would be unable to reach the merits of it. See Geraghty, 445 U.S. at 400 n.7, 404.
C. Mootness
Appellees insist, at several points throughout their brief, that issues presented
Appellees rely on Locke v. Board of Public Instruction, 499 F.2d 359 (5th Cir. 1974), for the proposition that the district court’s acceptance of their Compliance Plan moots the class claims. In that case, a teacher sued her school district for race and sex discrimination surrounding her maternity leave. Before oral argument on appeal, the maternity policy was changed and Locke was transferred, at her own request, into a teaching position that she found satisfactory.
We noted there that “in her original complaint the only relief sought by Mrs. Locke other than money damages was an injunction restraining the school system from implementing its present leave policy against the plaintiff in a discriminatory manner.” Id. at 363 (emphasis added). We went on to explain:
It is clear from the facts before us . . . that the plaintiff herein has now been satisfied as to her request for a job complete with supplemental work and pay. The counsel for the school board . . . has assured this court that the school board always had, and still maintains, good will toward Mrs. Locke. Furthermore, it is clear that the school board has done everything within its power to comply with Mrs. Locke’s wishes within the limitations placed upon the board by the various federal orders and mandates. This court is aware . . . that voluntary cessation of allegedly illegal conduct does not deprive the tribunal of power to hear and determine the cases, i.e., does not make the case moot. But, the mootness in this case . . . depends not at all upon a voluntary cessation of activity, but rather depends on the simple fact that Mrs. Locke’s wishes have been complied with and it is a matter of record that the school board is complying with the various federal mandates and orders as to integration of its school system. Even though . . . it could be argued that this is a question that is capable of repetition, here, . . . that is not possible. The maternity leave policy allegedly forced on Mrs. Locke is no longer in existence, a new one having taken its place on December 12, 1972. Mrs. Locke will never again be forced to comply with that leave policy.
Id. at 364 (internal quotation marks and citations omitted). Finally, we concluded that “although this matter has generated public concern, the nature of the case itself we find is that of a single individual alleging infringement of her rights. This does not make the dispute one of ‘general public interest’ requiring a decision even if many attributes of mootness exist.” Id. at 366.
Appellants here have consistently maintained that the alleged
This appeal raises three merit-based questions. Appellees argue that the district court erred in its conclusion that LSU violated
1. Injunctive Relief
In the present case, Appellants have all graduated from LSU. Even assuming that any one of them retains any NCAA eligibility at this point, they have not argued that there is any likelihood that any of them will return to LSU and attempt to play varsity sports. As is so often the case in suits for injunctive relief brought by students, graduation or impending graduation renders their claims for injunctive relief moot. See Id. at 319-20; Sapp v. Renfroe, 511 F.2d 172, 175 (5th Cir. 1975). Because the named plaintiffs will not benefit from a favorable ruling on the question implicating injunctive relief, we hold that this question is moot as to them.
The issue of injunctive relief, however, is not moot as to the putative class. Appellees argue that the district court’s effective class relief and their compliance with
voluntary cessation of allegedly illegal conduct does not deprive the tribunal of power to hear and determine the case, i.e., does not make the case moot. But jurisdiction, properly acquired, may abate if he case becomes moot because (1) it can be said with assurance that there is no reasonable expectation . . . that the alleged violation will recur, and (2) interim relief or events have completely and irrevocably eradicated the effects of the alleged violation.
When both conditions are satisfied it may be said that the case is moot because neither party has a legally cognizable interest in the final determination of the underlying questions of fact and law.
The burden of demonstrating mootness is a heavy one. County of Los Angeles v. Davis, 440 U.S. 625, 631 (1979) (internal citations and quotation marks omitted). In this case, Appellees bear the burden of demonstrating that “‘there is no reasonable expectation that the wrong will be repeated.’” ACLU v. Finch, 638 F.2d 1336, 1346 (5th Cir. 1981) (quoting United States v. W.T. Grant, 345 U.S. 629, 633 (1953)). Appellees have failed to meet this burden. They have made no representation to this court that they are dedicated to ensuring equal opportunities and fair accommodation for both their female and male athletes in the long run. They simply state that they have instituted varsity women’s fast-pitch softball and soccer and
We do not think, however, that the voluntary cessation exception applies equally to the individual Appellants. Even were LSU to resume its illegal activity, Appellants, because of their graduation, would be unaffected. The question of injunctive relief is therefore, as stated supra, rendered moot as to the named plaintiffs.
2. Monetary Relief
Finally, Appellants’ damages claim is not moot. The district court held that, with regard to the Pineda Plaintiffs, and we have remanded for a determination whether, with regard to the Pederson Plaintiffs, LSU violated the individual rights of each named plaintiff by failing to accommodate effectively the interests and abilities of female students. Appellees contest the district court’s holding. Appellants assert that LSU intentionally discriminated against women. If these questions on appeal are answered in Appellants’ favor, then to the extent that LSU’s violations caused a named plaintiff’s actual damages, that person is entitled to be compensated for those damages. A live controversy, therefore, exists with regard to the damages claim, and the legal questions underlying that claim are not moot. See Henschen, 959 F.2d at 588.
D. Sovereign Immunity
Appellees contend that the district court lacked subject matter jurisdiction to consider Appellants’ claims because Appellees are immune from suit pursuant to the
In order to abrogate a State’s sovereign immunity, Congress must (1) have “unequivocally expresse[d] its intent to abrogate the immunity,” and (2) have “acted pursuant to a valid exercise of power.” Seminole Tribe, 517 U.S. at 55 (internal quotations omitted).
There is no dispute that Congress unequivocally has expressed its intent to abrogate the States’ sovereign immunity in the context of
A State shall not be immune under the
Eleventh Amendment of the Constitution of the United States from suit in Federal court for a violation of section 504 of theRehabilitation Act of 1973 ,Title IX of the Education Amendments of 1972 , theAge Discrimination Act of 1975 ,42 U.S.C. § 6101 et seq. ,Title VII of the Civil Rights Act of 1964 ,42 U.S.C. § 2000d et seq. , or the provisions of any other Federal statute prohibiting discrimination by recipients of Federal financial assistance.
Thus, the only issue is whether Congress acted pursuant to a valid exercise of power when abrogating the States’ immunity. See Seminole Tribe, 517 U.S. at 59 (“Was the Act in question passed pursuant to a constitutional provision granting Congress the power to abrogate?“). The
After Seminole Tribe, then, legislation passed pursuant to Congress’s
We must first decide whether
In evaluating the constitutionality of a statute, we simply ask if Congress sufficiently articulated an abrogation of state sovereign immunity and if it had the power to do so . . . . This is an entirely objective inquiry, for “[t]he constitutionality of action taken by Congress does not depend on recitals of the power which it undertakes to exercise.”
Id. at 217 (quoting EEOC v. Wyoming, 460 U.S. 226, 243 n.18 (1983)) (citations and further internal quotations omitted).
Lesage supports the proposition that, even if Congress stated that it was acting pursuant to the Spending Clause in enacting
This reasoning supports the conclusion that Congress had the authority to abrogate the States’
Other circuits have similarly concluded that Congress validly abrogated the States’
Notwithstanding our conclusion that
In Florida Prepaid Postsecondary Ed. Expense Bd. v. College Savings Bank, 527 U.S. ___, 119 S. Ct. 2199, 1999 WL 412723 (1999), the Court both reaffirmed its holding in Seminole Tribe that Congress may not rely on
We believe it beyond peradventure that
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
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 . . . .
[S]uch termination or refusal shall be limited to the particular political entity, or part thereof, or other recipient as to whom such a finding [of noncompliance] has been made, and shall be limited in its effect to the particular program, or part thereof, in which such noncompliance has been so found . . . .
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.20 See, e.g.,
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.
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:
- Whether the selection of sports and levels of competition effectively
accommodate the interests and abilities of members of both sexes; - The provision of equipment and supplies;
- Scheduling of games and practice time;
- Travel and per diem allowance;
- Opportunity to receive coaching and academic tutoring;
- Assignment and compensation of coaches and tutors;
- Provision of locker rooms, practice and competitive facilities;
- Provision of medical and training facilities and services;
- Provision of housing and dining facilities and services;
- 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.
B. Title IX Violation
Appellees argue brazenly that the evidence did not demonstrate sufficient interest and ability in fast-pitch softball at LSU and that, therefore, they cannot be liable under Title IX. The heart of this contention is that an institution with no coach, no facilities, no varsity team, no scholarships, and no recruiting in a given sport must have on campus enough national-caliber athletes to field a competitive varsity team in that sport before a court can find sufficient interest and abilities to exist. It should go without saying that adopting this criteria would eliminate an effective accommodation claim by any plaintiff, at any time. In any event, the district court‘s finding that the requisite level of interest existed is a finding of fact subject to review for clear error. Having reviewed the record, we determine that the district court did not clearly err because there was ample indication of an interest by women in fast-pitch softball.
Appellees argue that the district court applied the wrong legal framework to assess Appellees’ liability by placing the evidentiary burden upon them to explain the reason for their 1983 decision to disband the women‘s fast-pitch softball team. They argue for de novo review of that decision, but we agree with Appellants and the record supports that the district court considered all the evidence of interest and ability at LSU before concluding that Appellees were in violation of Title IX, not merely the fact that LSU disbanded its team in 1983.
Appellees would have us hold that, although the student population of LSU is 51% male and 49% female, the population participating in athletics is 71% male and 29% female. Given this breakdown, they argue that it is improper to consider proportionality, because to do so would be to impose quotas, and that the evidence shows that female students are less interested in participating in sports than male students. The law suggests otherwise. Title IX provides that the district court may consider disproportionality when finding a Title IX violation:
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.
Nevertheless, Appellees persist in their argument by suggesting that the district court‘s reliance on the fact that LSU fields
Appellees finally contest the district court‘s determination that LSU‘s decision to add fast-pitch softball and soccer was not for the purpose of encouraging women‘s athletics. They challenge the district court‘s finding that LSU did not attempt to determine the interest and ability level of its female student population, contending that there is evidence in the record that shows that LSU does analyze the interest level of its female student athletes. Our review of the record demonstrates no such analysis on the part of LSU. The proper analytical framework for assessing a Title IX claim can be found in the Policy Interpretations to Title IX, which require an analysis of the disproportionality between the university‘s male and female participation, the university‘s history of expanding opportunities for women, and whether the university effectively accommodates the interests of its female students. See Title IX of the Education Amendments of 1972, Policy Interpretation, 44 Fed. Reg. 71,413, 71,414 (1979). Specifically, the Policy Interpretation explains that Title IX‘s application to athletic programs covers three general subject areas: scholarships, equivalent treatment, and equal accommodation. See
C. Intentional Discrimination
The district court found that LSU had violated and continued to violate the prescriptions of Title IX. The trial judge further concluded that, notwithstanding this threshold finding, a Title IX claimant
The district court stated that Appellees’ actions were not a result of intentional discrimination but rather of “arrogant ignorance, confusion regarding the practical requirements of the law, and a remarkably outdated view of women and athletics which created the byproduct of resistance to change.” Id. The district court reasoned, inter alia, that, because Athletic Director Dean testified that he believes that his “women‘s athletics” program is “wonderful” and because he was ignorant of the program‘s state of compliance with Title IX, Appellees did not intentionally discriminate against women. See id. 919.
The district court‘s decision finding LSU to have unintentionally violated Title IX by not effectively accommodating their female student-athletes simply does not withstand scrutiny. The district court stated that
Rather than taking notice of the enormous social change which has taken place in the past 25 years, LSU has continued to assume athletics is as it once was, a traditionally male domain, and its women students did not want to participate in athletics in the same manner and to the same extent as its mean, and acted accordingly.
912 F. Supp. at 920 (emphasis added). If an institution makes a decision not to provide equal athletic opportunities for its female students because of paternalism and stereotypical assumptions about their interests and abilities, that institution intended to treat women differently because of their sex. Moreover, Appellees’ ignorance about whether they are violating Title IX does not excuse their intentional decision not to accommodate effectively the interests of their female students by not providing sufficient athletic opportunities.
Apparently, Dean “believed his program to be so wonderful that he invited an investigator from the Department of Education‘s Office of Civil Rights to visit LSU to evaluate the athletics program‘s compliance with Title IX.” Id. That representative‘s findings confirmed Dean‘s ignorance of the actual state of compliance with Title IX by his athletic program, see id., but the district court nonetheless reasoned that Dean‘s testimony was “credible” because “otherwise he would not have invited OCR to LSU to assess the program.” Id. This conclusion ignores the fact that, already on notice of potential violations, Dean and others continued to adhere to deprecatory nomenclature when referring to female athletes, refused to authorize additional sports for women, and instead seemed content that the “women‘s teams fielded [by LSU] during the relevant time frame performed well in competition.” Id. This assessment of the athletics program is not merely “arrogance,” as the district court concluded, see id.; it belies an intent to treat women differently in violation of the law.
It bears noting that the provisions of Title IX and its attendant regulations are not merely hortatory; they exist, as does any law, to sculpt the relevant playing field. Consequently, Appellees’ alleged ignorance of the law does not preclude
In addition to the district court‘s evaluation of LSU‘s attitudes as “archaic,” our independent evaluation of the record and the evidence adduced at trial supports the conclusion that Appellees persisted in a systematic, intentional, differential treatment of women. For instance, in meetings to discuss the possibility of a varsity women‘s soccer team, Dean referred to Lisa Ollar repeatedly as “honey,” “sweetie,” and “cutie” and negotiated with her by stating that “I‘d love to help a cute little girl like you.” Dean also opined that soccer, a “more feminine sport,” deserved consideration for varsity status because female soccer players “would look cute running around in their soccer shorts.” Dean, charismatically defending LSU‘s chivalry, later told the coach of the women‘s club soccer team that he would not voluntarily add more women‘s sports at LSU but would “if forced to.” Among many other examples, Karla Pineda testified that, when she met with representatives of the Sports and Leisure Department to request the implementation of an intramural fast-pitch softball team, she was told that LSU would not sponsor fast-pitch softball because “the women might get hurt.”
LSU perpetuated antiquated stereotypes and fashioned a grossly discriminatory athletics system in many other ways. For example, LSU appointed a low-level male athletics department staff member to the position of “Senior Women‘s Athletic Administrator,” which the NCAA defines as the most senior women in an athletic department. LSU consistently approved larger budgets for travel, personnel, and training facilities for men‘s teams versus women‘s teams. The university consistently compensated coaches of women‘s team‘s at a rate far below that of its male team coaches.
Appellees have not even attempted to offer a legitimate, nondiscriminatory explanation for this blatantly differential treatment of male and female athletes, and men‘s and women‘s athletics in general; they merely urge that “archaic” values do not equate to intentional discrimination. Instead, LSU makes its mantra the contention that it was either
We conclude that the Title IX sexual harassment cases discussed above have little relevance in determining whether LSU intentionally discriminated here. Indeed, the most significant of the sexual harassment holdings actually supports Appellants’ argument: LSU arguably acted with deliberate indifference to the condition of its female athletics program. Cf. Davis, 526 U.S. at 629, 119 S. Ct. at 1671 (holding that deliberate indifference to differential treatment between the genders can itself cause discrimination to occur). In any event, the requirement in the sexual harassment cases—that the academic institution have actual knowledge of the sexual harassment—is not applicable for purposes of determining whether an academic institution intentionally discriminated on the basis of sex by denying females equal athletic opportunity. In the sexual harassment cases, the issue was whether the school district should be liable for the discriminatory acts of harassment committed by its employees. These cases hold that school districts must themselves have actual discriminatory intent before they will be liable for the discriminatory acts of their employees. In the instant case, it is the institution itself that is discriminating. The proper test is not whether it knew of or is responsible for the actions of others, but is whether Appellees intended to treat women differently on the basis of their sex by providing them unequal athletic opportunity, and, as we noted above, we are convinced that they did. Our review of the record convinces us that an intent to discriminate, albeit one motivated by chauvinist notions as opposed to one fueled by enmity, drove LSU‘s decisions regarding athletic opportunities for its female students.
The judgment of the district court is REVERSED and the case REMANDED with instruction to proceed to Stage II.
IV. Compliance Plan
Appellees challenge the district court‘s Compliance Plan requirements, as they pertain to soccer. LSU argues that, because the plaintiffs who played soccer lacked eligibility by the time of trial, making their claims moot, the Compliance Plan requirements only should have pertained to fast-pitch softball. Appellees also challenge the requirement that they gauge the athletic interests of incoming students through surveys and like materials.
Appellants argue that the relief granted by the district court was not overbroad because the injury suffered by them was not merely the absence of a women‘s varsity fast-pitch softball team but Appellees’ failure to provide equal athletic opportunity to its female students. They also argue that the requirement that Appellees implement procedures to gauge the interest levels of their students is necessary to promote
We find this issue nonjusticiable at this time. In Part II.A., we determined that the district court abused its discretion in decertifying the provisionally certified class. We remanded with instructions to consider further final certification of the putative class. In part II.C., we determined that the issue of injunctive relief is moot as to the named plaintiffs. A named plaintiff whose claim has become moot cannot press the merits of an issue on behalf of a class when that class has not properly been certified. See Geraghty, 445 U.S. at 400 n.7, 404.22
To maintain the status quo by leaving the district court‘s injunctive order in place would work an injustice to Appellees, who, through no fault of their own, would be forced to comply with an order the merits of which they are powerless to contest. “A party who seeks review of the merits of an adverse ruling, but is frustrated by the vagaries of circumstance, ought not in fairness be forced to acquiesce in the judgment. The same is true when mootness results from unilateral action of the party who prevailed below.” U.S. Bancorp Mortgage Co. v. Bonner Mall Partnership, 513 U.S. 18, 25 (1994). It cannot reasonably be argued that Appellees brought about mootness in this case by causing Appellants to be graduated. They were, it seems, “frustrated by the vagaries of circumstance.” In such instances it is the custom of appellate courts to vacate the lower court‘s injunctive order, and we follow that custom here. See id. at 22-23, United States v. Munsingwear, Inc., 340 U.S. 36, 39-40 (1950); Karcher v. May, 484 U.S. 72, 82-83 (1987). On remand, however, should the district court finally certify a class, it is free to reinstate so much of its order and subsequent rulings as is it deems necessary under the then-existing circumstances.
VI
The numerous holdings and dispositions included in this opinion warrant iteration:
- We HOLD that this suit is not barred by the Eleventh Amendment.
- We HOLD that to establish standing under a Title IX effective accommodation claim of the sort presented here, a party need only demonstrate that she is able and ready to compete for a position on the unfielded team.
- With regard to Appellants, we REVERSE the district court‘s ruling that the Pederson Plaintiffs lacked standing to challenge LSU‘s failure to field a varsity soccer team and REVERSE its subsequent judgment dismissing their claims with prejudice. We AFFIRM the district court‘s ruling that Appellants lacked standing to challenge the entire LSU varsity program. We HOLD that Appellants’ damages claims, and the questions of Title IX violation and intentional discrimination underlying them, are not moot as to the named Appellants. We further HOLD that the issue of injunctive relief is moot as to the named Appellants. We REMAND to the district court to determine the merits of the Pederson Plaintiffs’ claims before proceeding to Stage II of trial, the damages phase.
-
With regard to the putative class, we HOLD that the numerosity prong of Rule 23(a) was satisfied and a class was necessary, if any such requirement exists. Accordingly, we VACATE the district court‘s decertification order, REVERSE the district court‘s judgment dismissing the claims for class relief, and REMAND with instructions to consider further the certification of the putative class in light of this opinion. We HOLD that the issue of injunctive relief is not moot as to the putative class. - With regard to the merit issues, we AFFIRM the district court‘s judgment that Appellees violated Title IX. We REVERSE the district court‘s finding that Appellees did not intentionally discriminate, VACATE its subsequent judgment denying the Pineda Plaintiffs’ damages claims, and REMAND to the district court with instructions to proceed to Stage II of trial. We HOLD that we lack jurisdiction to address the district court‘s injunctive relief order and VACATE that order, leaving the district court free to reinstate so much of the order and subsequent rulings as it deems necessary, if and when a class is finally certified.
Appellants do not argue any points of error regarding the orders appealed from in Nos. 94-30680 and 95-30777; therefore, Nos. 94-30680 and 95-30777 are DISMISSED. We AFFIRM the order appealed from in No. 97-30427. With regard to Nos. 97-30719 and 97-30722, we VACATE the order approving LSU‘s Compliance Plan with instructions. With regard to the final judgment appealed from in 97-30744 and 97-30781, and the opinion appealed from in 96-30310, we AFFIRM in part, REVERSE in part, VACATE in part, and REMAND in part with instructions. All motions carried with the case are DENIED. Each party shall bear its own costs.
Notes
District Court Memorandum Ruling, September 14, 1995.If she [plaintiffs] cannot show personal injury, then no Article III case or controversy exists, and a Federal Court is powerless to hear that grievance. The individual injury requirement is not met by alleging “that injury has been suffered by other, unidentified members of the class to which [the plaintiff] belong[s] and which she purports to represent.” Warth v. Seldin, 422 U.S. 490, 502, 95 S.Ct. 2197, 2207, 45 L.Ed.2d 343 (1975). Accordingly, a named plaintiff in a class action who cannot establish the requisite case or controversy between him or herself and the defendants simply cannot seek relief for anyone...not for herself, and not for any other member of the class. O’Shea v. Littleton, 414 U.S. 488, 494, 94 S.Ct. 669, 675, 38 L.Ed.2d 674 (1974)...The treatment of participants in female varsity athletics has not impacted plaintiffs as they have not been female varsity athletes and therefore have not been discriminated against by any alleged treatment of LSU’s female varsity athletes; therefore a change in said treatment would not impact plaintiffs. Plaintiffs have personally suffered no injury or threatened injury due to LSU’s allegedly illegal treatment of its varsity athletes and as such fail the initial prong of the standing inquiry as to the claims for illegal treatment of athletes.
any State or political subdivision thereof, or any instrumentality of a State or political subdivision thereof, any public or private agency, institution, or organization, or other entity, or any person, to whom Federal financial assistance is extended directly or through another recipient and which operates an education program or activity which receives or benefits from such assistance, including any subunit, successor, assignee, or transferee thereof.