Pederson v. LA State University

213 F.3d 858

• Court: Court of Appeals for the Fifth Circuit
• Decided: January 27, 2000
• Docket: 96-30310
• Status: Published

Opinion

IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT

No. 94-30680

BETH PEDERSON; LISA OLLAR; SAMANTHA CLARK, Individually and on behalf of all others similarly situated,

Plaintiffs-Appellants,

versus

LOUISIANA STATE UNIVERSITY; WILLIAM E. DAVIS, Individually and in his official capacity as Chancellor of Louisiana State University; JOE C. DEAN; ELAINE D. ABELL; CLARENCE L. BARNEY; MILTON C. CHAPMAN; ELENORA A. CAWTHON; DAVID CONROY; CHARLES V. CUSIMANO; GORDON E. DORE; JANICE M. FOSTER; JIMMY A. LALONDE, JR.; JOSEPH LESAGE, JR.; ROLFE MCCOLLISTER, JR.; ROGER H. OGDEN; NICHOLAS SMITH, JR.; JOSEPH L. WAITZ; CHARLES S. WEEMS, III; JOHN R. WILLIAMS; MILTON J. WOMACK; ALL DEFENDANTS

Defendants-Appellees.

No. 95-30777

BETH PEDERSON; LISA OLLAR; SAMANTHA CLARK, Individually and on behalf of all others similarly situated

CINDY PINEDA; KARLA PINEDA

Intervenor Plaintiffs-Appellants,

LOUISIANA STATE UNIVERSITY; WILLIAM E. DAVIS, Individually and in his official capacity as Chancellor of Louisiana State University; JOE C. DEAN; ELAINE D. ABELL; CLARENCE L. BARNEY; MILTON C. CHAPMAN; ELENORA A. CAWTHON; DAVID CONROY; CHARLES V. CUSIMANO; GORDON E. DORE; JANICE M. FOSTER; JIMMY A. LALONDE, JR.; JOSEPH LESAGE, JR.; ROLFE MCCOLLISTER, JR.; ROGER H. OGDEN; NICHOLAS SMITH, JR.; JOSEPH L. WAITZ; CHARLES S. WEEMS, III; JOHN R. WILLIAMS; MILTON J. WOMACK; ALL DEFENDANTS Defendants-Appellees.

No. 96-30310

BETH PEDERSON; LISA OLLAR; SAMANTHA CLARK, Individually and on behalf of all others similarly situated

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

No. 97-30427

BETH PEDERSON; LISA OLLAR; SAMANTHA CLARK, Individually and on behalf of all others similarly situated

Plaintiffs-Appellees,

LOUISIANA STATE UNIVERSITY; WILLIAM E. DAVIS; JOE C. DEAN; ELAINE D. ABELL; CLARENCE L. BARNEY; MILTON C. CHAPMAN; ELENORA A. CAWTHON; DAVID CONROY; CHARLES V. CUSIMANO; GORDON E. DORE; JANICE M. FOSTER; JIMMY A. LALONDE, JR.; JOSEPH LESAGE, JR.; ROLFE MCCOLLISTER, JR.; ROGER H. OGDEN; NICHOLAS SMITH, JR.;

2 JOSEPH L. WAITZ; CHARLES S. WEEMS, III; JOHN R. WILLIAMS; MILTON J. WOMACK; ALL DEFENDANTS

Defendants-Appellants.

No. 97-30719

BETH PEDERSON; LISA OLLAR; SAMANTHA CLARK, Individually and on behalf of all others similarly situated

Plaintiffs-Appellants-Appellees,

LOUISIANA STATE UNIVERSITY; WILLIAM E. DAVIS, Individually and in his official capacity as Chancellor of Louisiana State University; JOE C. DEAN; ELAINE D. ABELL; CLARENCE L. BARNEY; MILTON C. CHAPMAN; ELENORA A. CAWTHON; DAVID CONROY; CHARLES V. CUSIMANO; GORDON E. DORE; JANICE M. FOSTER; JIMMY A. LALONDE, JR.; JOSEPH LESAGE, JR.; ROLFE MCCOLLISTER, JR.; ROGER H. OGDEN; NICHOLAS SMITH, JR.; JOSEPH L. WAITZ; CHARLES S. WEEMS, III; JOHN R. WILLIAMS; MILTON J. WOMACK; ALL DEFENDANTS

Defendants-Appellees-Appellants.

Appeals from the United States District Court for the Middle District of Louisiana

January 27, 2000

Before KING, Chief Judge, and STEWART, Circuit Judge, and LITTLE, District Judge.*

CARL E. STEWART, Circuit Judge:

We must today determine whether the largest public university

in Louisiana has discriminated against women under Title IX in the

* District Judge of the Western District of Louisiana, sitting by designation.

3 provision of facilities and teams for intercollegiate athletic

competition. Before us are eight appeals, which were consolidated

for briefing and argument, concerning allegations of such

discrimination against the instant plaintiffs and a putative class

of female undergraduates at Louisiana State University (“LSU”).

After threading our way through issues relating to class

certification and subject matter jurisdiction, we conclude that LSU

violated Title IX by failing to accommodate effectively the

interests and abilities of certain female students and that its

discrimination against these students was intentional.

I. Procedural & Factual History

On March 23, 1994, three female undergraduate students

attending LSU—Beth Pederson, Lisa Ollar, and Samantha Clark

(“Pederson Plaintiffs”)–filed suit in the United States District

Court for the Middle District of Louisiana, alleging that LSU had

violated and continued to violate Title IX of the Education

Amendments Act of 1972, 20 U.S.C. §§ 1681-1688 (1994) (“Title IX”),

and the Equal Protection Clause of the United States Constitution

by denying them equal opportunity to participate in intercollegiate

athletics, equal opportunity to compete for and to receive athletic

scholarships, and equal access to the benefits and services that

LSU provides to its varsity intercollegiate athletes, and by

discriminating against women in the provision of athletic

scholarships and in the compensation paid coaches.1 The Pederson

1 Pederson, Ollar, and Clark all play soccer. Pederson enrolled at LSU beginning in the autumn term of 1992. Ollar enrolled at LSU beginning with the autumn term of 1990. Clark

4 Plaintiffs sought declaratory, injunctive, and monetary relief on

behalf of themselves and all those similarly situated. The

defendants to the action included LSU, Athletic Director Joe Dean

(in his individual and official capacities) (“Dean”), Chancellor

William E. Davis (in his individual and official capacities)

(“Davis”), and the individual members of the LSU Board of

Supervisors (in their official capacities only) (collectively,

“Appellees”).2

Subsequently, plaintiffs Cindy and Karla Pineda (“Pineda

Plaintiffs” and, together with Pederson Plaintiffs, “Appellants”)

sought to intervene in the original action.3 The motion to

intervene was denied, and the Pineda Plaintiffs filed suit on

behalf of themselves and a class of those similarly situated in the

Eastern District of Louisiana on January 3, 1995. Appellees

transferred the Pineda action to the Middle District of Louisiana

enrolled at LSU beginning in the autumn term of 1990 through December 1994. The district court found that, when LSU implemented a soccer team in the autumn term of 1995, Pederson tried out for and made the team but ultimately did not participate because of financial difficulties and lack of necessary skill, and Ollar and Clark did not participate because they had no remaining college eligibility. 2 An exhaustive summary of the facts underlying this case and a more thorough procedural history may be found at Pederson v. Louisiana State Univ., 912 F. Supp. 892, 897-902 (M.D. La. 1996). In this opinion, we repeat only those aspects of the case necessary to our disposition and refer the reader to the district court’s opinion for a fuller record of the events. 3 The Pineda Plaintiffs play fast-pitch softball. Cindy and Karla Pineda both enrolled at LSU beginning in the Autumn of 1992. When LSU implemented a softball team at the intramural level, Karla participated in the league. When LSU implemented a varsity fast-pitch softball team for the 1996-97 season, Cindy tried out for and made the team as a scholarship player.

5 and moved to consolidate the Pineda action with the Pederson

action. The district court granted the motion, and Appellants

filed an amended complaint merging the actions.

In the course of the litigation, the district court denied

Appellants’ motions for preliminary injunctions. On September 14,

1995, it granted Appellees’ motion for partial summary judgment,

dismissing for lack of standing Appellants’ claims for equal

treatment in the areas of coaches’ salaries, budgets, facilities,

training, and travel, on the ground that Appellants could not

demonstrate injury-in-fact related to existing varsity athletic

programs in which they had never sought to participate.4 On the

same date, the district court dismissed Appellants’ 42 U.S.C. §

1983 claims against defendants Davis and Dean in their individual

4 Alleged violations of Title IX in the area of athletics are often divided into effective accommodation claims and equal treatment claims. The distinction is derived from the regulations promulgated under Title IX. Effective accommodation claims correspond to the portion of the implementing regulations that

provide that in determining whether equal athletic opportunities for members of both sexes are available, the Office of Civil Rights of the Department of Education (the office charged with enforcement of Title IX) will consider, among other factors, “[w]hether the selection of sports and levels of competition effectively accommodate the interests and abilities of members of both sexes.”

Boucher v. Syracuse Univ., 164 F.3d 113, 115 n.1 (2d Cir. 1999) (quoting 34 C.F.R. § 106.41(c)(1)). Equal treatment claims “derive from the Title IX regulations found at 34 C.F.R. §§ 106.37(c) and 106.41(c)(2)-(10), which call for equal provision of athletic scholarships as well as equal provision of other athletic benefits and opportunities among the sexes.” Id. at 115 n.2.

6 capacities on the basis of qualified immunity, and also dismissed

the remaining § 1983 and Fourteenth Amendment claims. The district

court also entered an order provisionally certifying the following

class:

Those female students enrolled at LSU since 1993 and any time thereafter who have sought or seek to participate in varsity intercollegiate athletics at LSU but who are or were not allowed such participation due to LSU’s failure to field teams in said female varsity athletics.

The district court conducted trial on Appellants’ surviving

claims from October 10, 1995, through November 8, 1995. On January

11, 1996, the district court entered an order decertifying the

class because the numerosity requirement of Federal Rule of Civil

Procedure 23(a) (“Rule 23(a)”) had not been met and because a class

was not needed to obtain the requested relief. On January 12,

1996, the district court entered its opinion on the merits finding

that Appellees were in violation of Title IX. See Pederson v.

Louisiana State Univ., 912 F. Supp. 892, 917 (M.D. La. 1996). The

district court ruled, however, that Appellees did not intentionally

violate Title IX and therefore would not be liable for monetary

damages. The district court also dismissed the claims of the

Pederson Plaintiffs for lack of standing. As a result of its

finding that Appellees were in violation of Title IX, the district

court ordered Appellees to submit a plan for compliance with the

statute (the “Compliance Plan”).

The Pederson Plaintiffs filed a notice of appeal on January

12, 1996 from the district court’s order. The notice of appeal

encompassed all prior district court orders. On June 9, 1997, the

7 Pineda Plaintiffs filed a notice of appeal from the district

court’s May 9, 1997 order approving the Compliance Plan. The

notice of the appeal encompassed all prior district court orders.

On July 24, 1997, Appellants collectively filed a notice of appeal

from the final judgment entered on July 1, 1997. In this

consolidated appeal, Appellants challenge the district court’s

decision to decertify the class, the district court’s conclusion

that Appellees did not intentionally violate Title IX, the district

court’s decision to dismiss the Pederson Plaintiffs’ claims for

lack of standing, and the district court’s conclusion that

Appellants lacked standing to pursue their claims alleging a lack

of equal treatment in existing LSU varsity sports.

Prior to the entry of final judgment against Appellees, the

Supreme Court decided Seminole Tribe v. Florida, 517 U.S. 44

(1996). In their answer to both complaints, Appellees had pled the

affirmative defense of Eleventh Amendment immunity. In light of

Seminole Tribe, Appellees filed a Rule 12(b)(1) motion to dismiss

on May 14, 1996, contending that Eleventh Amendment sovereign

immunity deprived the court of subject matter jurisdiction. On

March 4, 1997, the district court denied Appellees’ motion. On

March 19, 1997, Appellees filed a notice of appeal of the district

court’s denial of their 12(b)(1) motion. On June 9, 1997,

Appellees appealed from the district court’s May 9, 1997 order

approving the Compliance Plan. The notice of appeal encompassed

all of the district court’s earlier rulings, including the district

court’s finding that LSU is or was in violation of Title IX. On

8 July 7, 1997, Appellees filed another notice of appeal from the

final judgment entered on July 1, 1997. On appeal, Appellees

challenge the district court’s denial of their 12(b)(1) motion to

dismiss, the district court’s conclusion that Appellees were in

violation of Title IX, and the district court’s ordered injunctive

relief on the ground that it is overbroad.

II. Jurisdiction

We begin our analysis by determining our jurisdiction to

entertain these appeals. We must address the jurisdictional issues

of standing, mootness, state sovereign immunity, and class

certification; we address these issues in no particular order.5 We

proceed, first, by reviewing the district court’s decision to

decertify the class it provisionally certified on September 14,

1995. Next, with regard to standing, we determine whether the

district court correctly determined that the Pederson Plaintiffs

lacked standing to pursue their claims and whether it correctly

determined that Appellants lacked standing to pursue their claims

of unequal treatment in existing varsity sports at LSU. Third, we

examine Appellees’ contentions regarding mootness. Finally, we

5 When questions of both Article III jurisdiction and class certification are presented, the class certification questions, at times, “should be treated first because class certification issues are ‘logically antecedent’ to Article III concerns and pertain to statutory standing, which may properly be treated before Article III standing.” Ortiz v. Fibreboard Corp., 119 S. Ct. 2295, 2300 (1999) (quoting Amchem Products, Inc. v. Windsor, 521 U.S. 591, 612 (1997) ) (internal citations omitted). Because the class certification issue presented here is not outcome determinative, as it was in both Ortiz and Amchem, it need not, in our minds, be treated first. We nonetheless begin by discussing the district court’s decertification of the putative class.

9 determine whether the doctrine of sovereign immunity bars suit in

this case.

A. Class Decertification

We review a district court’s class certification decisions for

abuse of discretion.6 See Shipes v. Trinity Indus., 987 F.2d 311,

316 (5th Cir. 1993); Merrill v. Southern Methodist Univ., 806 F.2d

600, 607 (5th Cir. 1986). “[T]he district court maintains great

discretion in certifying and managing a class action. We will

reverse a district court's decision to certify a class only upon a

showing that the court abused its discretion, or that it applied

incorrect legal standards in reaching its decision.” Mullen v.

Treasure Chest Casino, LLC, 186 F.3d 620, 624 (5th Cir. 1999). The

decision to decertify a provisionally certified class is a class

certification decision and, as such, is reviewed for abuse of

discretion. See Mooney v. Aramco Services Co., 54 F.3d 1207, 1212

(5th Cir. 1995); Briggs v. Anderson, 796 F.2d 1009, 1017 (8th Cir.

1986).

In the district court, Appellants sought to certify the class

of “all LSU women students enrolled at any time since February,

1993 or who seek to enroll or become enrolled during the course of

6 We review the district court’s decertification of the class despite Appellees’ contentions that this action is moot as to Appellants. Even if that contention holds true, Appellants are the proper parties to contest the district court’s certification decisions regarding the putative class. See United States Parole Comm’n v. Geraghty, 445 U.S. 388, 404 (1980). Appellees also argue that the class claims are moot. We determine, infra, that they are not.

10 this litigation and who seek or have sought to participate and or

were deterred from participating in varsity intercollegiate

athletics funded by LSU.”7 Memorandum Ruling of Jan. 12, 1996, at

1. On September 14, 1995, the district court provisionally

certified the class of “[t]hose who have sought or seek to

participate in varsity intercollegiate athletics at LSU but who are

or were not allowed such participation due to LSU’s failure to

field teams in said female varsity athletics.” Id. at 4. At that

time, the district court voiced its concern that the numerosity

requirement of Rule 23(a) had not been met. The court stated:

provisional certification will require plaintiffs, before judgment is rendered, to further support their assertion that the joinder of potential class members is impracticable. . . . In particular this Court is concerned that plaintiffs cannot show that one major argument on numerosity is causally weak, i.e. whether women who participate in intermurals [sic] at LSU

7 In order to maintain a class action, plaintiffs must first show that the four requirements Rule 23(a) have been met and, additionally, that one of the requirements of Rule 23(b) have been met. See FED. R. CIV. P. 23. The requirements of Rule 23(a) are

(1) the class is so numerous that joinder of all members is impracticable, (2) there are questions of law or fact common to the class, (3) the claims or defenses of the representative parties are typical of the claims or defenses of the class, and (4) the representative parties will fairly and adequately protect the interests of the class.

Id. 23(a). The district court initially certified a class under Rule 23(b)(2), which allows a class action if “the party opposing the class has acted or refused to act on grounds generally applicable to the class, thereby making appropriate final injunctive relief or corresponding declaratory relief with respect to the class as a whole.” Id. 23(b)(2). Appellants contend that they reserved the right to move for certification under Rule 23(b)(3), but the Appellees dispute this contention. We take no position on this debate because no appeal was filed with respect to the certification of a Rule 23(b)(3) class.

11 would have the ability or interests to compete at the varsity level at LSU.

Memorandum Ruling of Sept. 14, 1995, at 10-11. Following the close

of evidence at trial, both sides briefed the issue of numerosity.

Ultimately, the district court decertified the provisional

class. See Memorandum Ruling of Jan. 12, 1996, at 8-9. It stated

that it had “cautioned plaintiffs’ counsel in its original ruling

that the evidence presented on numerosity was not sufficient to

uphold a class certification and granted plaintiffs the opportunity

to bolster that information. [It] remain[ed] unconvinced that such

numerosity exists.”8 Id. at 4-5.

Appellants challenge the decertification of the putative

class. It is important for our purposes to recognize that

Appellants do not challenge the district court’s redefinition of

the putative class; they merely challenge the district court’s

decision to decertify the redefined class.9 The precise question

before us, therefore, is whether the district court abused its

discretion when it decertified, on the grounds of lack of

8 The district court then established “lack of necessity” as an alternative ground for decertifying the class. This court has, in the past, declined to decide whether necessity can play a role in class certification decisions. See Johnson v. City of Opelousas, 658 F.2d 1065, 1069-70 (5th Cir. 1981). We again decline to decide this question. We simply decide that, if indeed a necessity requirement exists, the substantial risk of mootness here created a necessity for class certification in this case, and the district court abused its discretion in finding no necessity for a class. 9 Appellants assert in their brief before this court a desire to represent the class they originally proposed to the district court, but they fail to challenge the district court’s redefinition of the putative class.

12 numerosity and lack of necessity, the class of “[t]hose female

students enrolled at LSU since 1993 and any time thereafter who

have sought or seek to participate in varsity intercollegiate

athletics at LSU but who are or were not allowed such participation

due to LSU’s failure to field teams in said female varsity

athletics.” Memorandum Ruling of Jan. 12, 1996, at 4.

Appellants’ major contention appears to be that the evidence

presented at trial clearly satisfied the numerosity requirement and

that the district court’s decertification order, therefore,

erroneously assessed that evidence. Appellants also attack the

district court’s failure to make specific findings of fact in its

memorandum ruling decertifying the putative class. See Appellants’

Brief at 34-35 (“Although the District Court (contrary to Rules 23

and 52) made no factual findings supporting its holding as to

numerosity, the trial evidence clearly established the numerosity

element.”).

The district court made clear that its decertification

decision, in all aspects relevant to this discussion, rested on

Appellants’ inability to satisfy the numerosity requirement.

Moreover, in its September 14, 1995, Memorandum Ruling, the

district court explained that Appellants had failed to provide

evidence that members of the intramural and club teams had the

desire or ability to compete at the varsity level. Appellants are

correct, however, that the district court failed to identify

specific findings of fact to support its conclusion that the

numerosity requirement had not been met. Both parties briefed the

13 numerosity issue following the close of evidence at trial. These

briefs detailed the evidence in favor of and against a conclusion

that the numerosity prong of Rule 23(a) had been satisfied. This

same evidence is reiterated in the briefs prepared on appeal.

At trial, Appellants established that a number of current LSU

female students had a desire to try out for varsity soccer or fast-

pitch softball.10 Appellees admit that eight people showed up for

varsity soccer tryouts. These eight, however, do not constitute

the sum total of class members. The class consists of all “female

students enrolled at LSU since 1993 and any time thereafter” who

wish to participate. Plaintiffs established that, around the time

of trial, well over 5,000 young women were playing soccer or fast-

pitch softball at the high school level in Louisiana. They also

established that many former members of a Baton Rouge soccer club

received scholarships to play intercollegiate soccer. As Appellees

point out, these women, because they are not students at LSU, are

not members of the putative class. However, considering the talent

pool in Louisiana established by these figures and the number of

LSU students who come from Louisiana, Appellants have established

that numerous future female LSU students will desire to try out for

varsity soccer and fast-pitch softball. To satisfy the numerosity

prong, “a plaintiff must ordinarily demonstrate some evidence or

10 Because we determine, infra, that to establish standing, an individual need only demonstrate that she is able and ready to compete for a position on the unfielded team, we do not focus, as the district court seems to have, on whether potential class members have the skill necessary to obtain a position on a varsity team.

14 reasonable estimate of the number of purported class members.”

Zeidman v. J. Ray McDermott & Co., Inc., 651 F.2d 1030, 1038 (5th

Cir. 1981). The evidence presented brings Appellants’ assertions

as to numerosity beyond the “mere allegation that the class is too

numerous to make joinder practicable” which, by itself, is

insufficient. Fleming v. Travenol Laboratories, Inc., 707 F.2d

829, 833 (5th Cir. 1983).11

Our independent review of the record satisfies us that the

numerosity prong has been satisfied. Because the district court

failed to identify specific findings that led it to conclude that

the numerosity prong had not been satisfied, we can only conclude

that its assessment of the evidence was clearly erroneous and,

therefore, that it abused its discretion in declining finally to

certify the putative class on the ground of lack of numerosity.

Accordingly, we vacate the district court’s decertification order.

It has been over four years since the district court

provisionally certified the class at issue. While we have

11 We have previously stated that when conducting a numerosity analysis, district courts must not focus on sheer numbers alone but must instead focus “on whether joinder of all members is practicable in view of the numerosity of the class and all other relevant factors.” Phillips v. Joint Legislative Comm., 637 F.2d 1014, 1022 (5th Cir. 1981). We have found the inclusion of future members in the class definition a factor to consider in determining if joinder is impracticable. In Jack v. American Linen Supply Co., we noted that “[t]he alleged class . . . include[d] unnamed, unknown future . . . [members] who will be affected by . . . discriminatory policies, and joinder of unknown individuals is certainly impracticable.” 498 F.2d 122, 124 (5th Cir. 1974). In the case at hand, the fact that the class includes unknown, unnamed future members also weighs in favor of certification.

15 determined that the district court abused its discretion in

decertifying the class on the grounds of numerosity and, possibly,

lack of need, this court is not as well situated as the district

court to determine whether the putative class should now finally be

certified given all other considerations that go into a class

certification decision. Upon remand, therefore, the district court

should reconsider final class certification in light of this

opinion and all other class certification considerations, including

the adequacy as a representative of any person who hereafter comes

forward to represent the class.

B. Standing

The district court ruled that the Pederson Plaintiffs lacked

standing to bring suit for violations of Title IX and that all

Appellants lacked standing to challenge LSU’s existing varsity

program. We review each ruling in turn.

1. Legal Principles

“Jurisdictional questions are questions of law, and thus

reviewable de novo by this Court. . . . If the district court

resolves any factual disputes in making its jurisdictional

findings, the facts expressly or impliedly found by the district

court are accepted on appeal unless the findings are clearly

erroneous.” In the Matter of the Complaint of Tom-Mac, Inc., 76

F.3d 678, 682 (5th Cir. 1996) (internal citations omitted). “A

question of standing raises the issue of whether the plaintiff is

entitled to have the court decide the merits of the dispute or of

particular issues. Standing is a jurisdictional requirement that

16 focuses on the party seeking to get his complaint before a federal

court and not on the issues he wishes to have adjudicated.” Cook

v. Reno, 74 F.3d 97, 98-99 (5th Cir. 1996) (internal quotations and

footnotes omitted).

To have standing, a plaintiff must establish three elements:

First, the plaintiff must show that it has suffered an injury in fact--a harm suffered by the plaintiff that is concrete and actual or imminent, not conjectural or hypothetical. Second, the plaintiff must establish causation–a fairly traceable connection between the plaintiff’s injury and the complained-of conduct of the defendant. Lastly, there must be redressability--a likelihood that the requested relief will redress the alleged injury.

Sierra Club v. Peterson, 185 F.3d 349, 360 (5th Cir. 1999).

Additionally, courts have refused to adjudicate cases that raise

only generalized grievances. “A generalized grievance is a harm

shared in substantially equal measure by all or a large class of

citizens. The prudential principle barring adjudication of

generalized grievances is closely related to the constitutional

requirement of personal injury in fact, and the policies underlying

both are similar." Walker v. Mesquite, 169 F.3d 973, 979 n.16 (5th

Cir. 1999) (internal citations and quotation marks omitted).

Finally, the doctrine of standing is distinguishable from that

of mootness. The Supreme Court has acknowledged “mootness as ‘the

doctrine of standing set in a time frame: The requisite personal

interest that must exist at the commencement of the litigation

(standing) must continue throughout its existence (mootness).’”

United States Parole Comm’n v. Geraghty, 445 U.S. 388, 397 (1980)

(quoting Monaghan, Constitutional Adjudication: The Who and When,

82 YALE L.J. 1363, 1384 (1973)).

17 2. Pederson Plaintiffs

The district court determined that the Pederson Plaintiffs--

Pederson, Ollar, and Clark--lacked standing to bring claims for

equitable or declaratory relief. With regard to Ollar and Clark,

the court found that they “were ineligible to compete in

intercollegiate athletics after May, 1995 under the regulations of

the National Collegiate Athletic Association [(“NCAA”)].”

Pederson, 912 F. Supp. at 907. The court found that Pederson

retained NCAA eligibility and had made the team, but she quit the

team for financial reasons and was, at the same time, cut from the

team due to a lack of skill. Id. at 907 & n.34. The court further

found that LSU had no men’s varsity soccer team and that it

provided men and women the same opportunity to participate in club

soccer. Finally, the court found that the Pederson Plaintiffs did

not establish the ability to play soccer above the club level and

that they did not establish the interest or ability to play any

sport other than soccer. The court therefore concluded that “LSU’s

alleged violation of Title IX by not providing additional athletic

opportunity to its female students in no way personally impacted

these three plaintiffs.” Id. at 907. Absent any personal impact,

the court determined that the Pederson Plaintiffs lacked standing

and dismissed their claims.

The district court failed appropriately to evaluate the

Pederson Plaintiffs’ standing. First, the district court addresses

each plaintiff’s NCAA eligibility at the time of trial.

Eligibility at the time of trial, however, implicates mootness; it

18 has no bearing on the particular litigant’s standing at the time

the suit was filed.12

Second, the district court’s conclusion that LSU provided men

and women the same opportunities to play soccer and that,

therefore, LSU’s Title IX violation did not impact the Pederson

Plaintiffs reaches the merits of the Pederson Plaintiffs’ effective

accommodation claim. The Pederson Plaintiffs claim that LSU, by

failing to field a women’s varsity soccer team, ineffectively

accommodated the interests and abilities of female students at the

school. Whether or not the Pederson Plaintiffs produced evidence

at trial sufficient to establish this alleged violation is the very

heart of the matter in their case and does not implicate standing.

Standing requires alleged misconduct, not proven misconduct. To

the extent that the district court reached the merits of the

Pederson Plaintiffs’ claims in its opinion, we remark only that

“[i]t is inappropriate for the court to focus on the merits of the

case when considering the issue of standing.” Hanson v. Veterans

Admin., 800 F.2d 1381, 1385 (5th Cir. 1986).

Third, the district court misconceived the level of injury

necessary to establish standing in this area. The district court’s

focus on the ability of each Pederson Plaintiff to secure a

position on the varsity soccer team was misplaced. This inquiry

will be appropriate in the determination of damages during Stage

II. If the Pederson Plaintiffs have standing and succeed on their

violation claims, then each plaintiff’s ability to secure a

12 We discuss mootness in Part II.C., infra.

19 position on the unfielded varsity soccer team during the period of

the violation is a factor to consider in assessing damages. Of

course, each plaintiff’s ability to secure a position will be

impacted both by skill and NCAA eligibility. The findings of the

district court, therefore, do not help to determine whether the

Pederson Plaintiffs have standing to challenge LSU’s effective

accommodation under Title IX, i.e., whether they met the minimum

standing requirements at the time they instituted this suit.

We are unaware of, nor does either party point to, precedent

delineating the precise level of injury a litigant must demonstrate

to establish standing to assert a claim under Title IX for

ineffective accommodation. Clearly, the alleged misconduct here is

LSU’s failure to field a varsity soccer team in violation of Title

IX. The remedies sought are both monetary and injunctive. As a

general matter, injury in fact is the “invasion of a legally

protected interest.” Northeastern Fla. Chapter of the Associated

Gen. Contractors of Am. v. City of Jacksonville, 508 U.S. 656, 663

(1993). The difficult question, then, is whether there is, in this

case, any legally protected interest actually violated or in

imminent danger of being violated that is fairly traceable to the

alleged misconduct and from which the Pederson Plaintiffs will

likely obtain relief as a result of a favorable ruling. The

district court seems to require that the Pederson Plaintiffs allege

the injury of being denied the opportunity to compete on a specific

varsity team. It follows from this reasoning that a determination

that a plaintiff would not have made the specific varsity team,

20 even had it existed, defeats her standing because she fails to

demonstrate sufficient injury. The district court requires too

much.

Our decision here is informed on two fronts. First, we find

the case of Boucher v. Syracuse Univ., 164 F.3d 113 (2d Cir. 1999)

supportive. There, members of the club lacrosse and softball teams

brought suit for violation of Title IX. Neither the district court

nor the Court of Appeals for the Second Circuit discussed whether

any of the students possessed the skills necessary to make one of

the unfielded varsity teams. Nonetheless, the Second Circuit,

after dismissing their equal treatment claims for lack of standing,

never even questioned their standing to bring effective

accommodation claims. See id. at 120.

Second, we find the Supreme Court’s Equal Protection

jurisprudence instructive. In the context of set-aside programs,

the Court has stated:

When the government erects a barrier that makes it more difficult for members of one group to obtain a benefit than it is for members of another group, a member of the former group seeking to challenge the barrier need not allege that he would have obtained the benefit but for the barrier in order to establish standing. The "injury in fact" in an equal protection case of this variety is the denial of equal treatment resulting from the imposition of the barrier, not the ultimate inability to obtain the benefit. And in the context of a challenge to a set-aside program, the "injury in fact" is the inability to compete on an equal footing in the bidding process, not the loss of a contract. To establish standing, therefore, a party challenging a set-aside program . . . need only demonstrate that it is able and ready to bid on contracts and that a discriminatory policy prevents it from doing so on an equal basis.

Northeastern Florida, 508 U.S. at 666 (citations omitted).

Violating Title IX by failing to field women’s varsity teams that

21 effectively accommodate the interests and abilities of the

university community certainly creates a barrier for female

students. In much the same way as set-aside programs, the injury

here results from the imposed barrier–the absence of a varsity team

for a position on which a female student should be allowed to try

out. We hold, therefore, that to establish standing under a Title

IX effective accommodation claim, a party need only demonstrate

that she is “able and ready” to compete for a position on the

unfielded team.

The Pederson Plaintiffs have certainly established standing in

this case. They all participated in club soccer, and, indeed,

Pederson actually competed for a spot on the team once it was

fielded. Whether or not they have proved sufficiently their claims

on the merits, however, is for the district court to decide. The

district court’s conclusion that Appellees violated Title IX by

failing to field a women’s varsity fast-pitch softball team does

not compel a conclusion that they likewise violated Title IX by

failing to field a women’s varsity soccer team. Upon remand, the

district court should determine, prior to proceeding to Stage II,

the merits of the Pederson Plaintiffs’ claim.

3. Unequal Treatment Claims

Appellants also challenge the district court’s determination

that they did not have standing to challenge LSU’s entire varsity

athletic program as it then existed, including the allocation of

scholarships and other benefits to varsity athletes. They argue

that the district court should not have dismissed their claims for

22 declaratory and injunctive relief with respect to women’s varsity

basketball, volleyball, track, tennis, golf, gymnastics, and

swimming because they have individually sustained the requisite

injury necessary to address the operation of LSU’s athletic program

as a whole, and because limiting the inquiry to specific teams

contradicts the policies of Title IX as well as traditional notions

of fairness.

The district court found that Appellants had standing to

challenge the lack of effective accommodation but not the denial of

equivalence in other athletic benefits. Appellees defend the

district court’s conclusion on the ground that persons who never

participated in intercollegiate athletics have no standing to

challenge the treatment of existing athletes.

We agree with the district court that Appellants lack standing

to challenge the alleged unequal treatment of varsity athletes at

LSU. At the time of trial, no named plaintiff was a member of a

varsity team.13 Moreover, the class that Appellants seek to

represent includes women injured by LSU’s failure to field teams

for certain sports. Standing to challenge effective accommodation

does not automatically translate into standing to challenge the

treatment of existing varsity athletes. See Boucher, 164 F.3d at

116 (“The [district] court held that since none of the named

13 We do not mean to imply that an equal treatment claim can only be brought by an existing varsity athlete. Whether, for example, a female student who was deterred from competing for a spot on an existing varsity team because of perceived unequal treatment of female varsity athletes would have standing to challenge the existing varsity program is a question we leave for another day.

23 plaintiffs were varsity athletes, they did not have standing to

assert the equal treatment claims. Its ruling on this issue was

proper and we affirm the dismissal of plaintiffs’ equal treatment

claims . . . .”). Because we agree substantially with the

reasoning set forth by the district court in its September 14,

1995, Memorandum Ruling, for further explanation we rely on the

district court’s discussion.14

14 The district court stated: If she [plaintiffs] cannot show personal injury, then no Article III case or controversy exists, and a Federal Court is powerless to hear that grievance. The individual injury requirement is not met by alleging “that injury has been suffered by other, unidentified members of the class to which [the plaintiff] belong[s] and which she purports to represent.” Warth v. Seldin, 422 U.S. 490, 502, 95 S.Ct. 2197, 2207, 45 L.Ed.2d 343 (1975). Accordingly, a named plaintiff in a class action who cannot establish the requisite case or controversy between him or herself and the defendants simply cannot seek relief for anyone...not for herself, and not for any other member of the class. O’Shea v. Littleton, 414 U.S. 488, 494, 94 S.Ct. 669, 675, 38 L.Ed.2d 674 (1974)...The treatment of participants in female varsity athletics has not impacted plaintiffs as they have not been female varsity athletes and therefore have not been discriminated against by any alleged treatment of LSU’s female varsity athletes; therefore a change in said treatment would not impact plaintiffs. Plaintiffs have personally suffered no injury or threatened injury due to LSU’s allegedly illegal treatment of its varsity athletes and as such fail the initial prong of the standing inquiry as to the claims for illegal treatment of athletes. District Court Memorandum Ruling, September 14, 1995.

We note, additionally, that we would be unable to reach the merits of this claim even were Appellants to have standing. We determined, supra, that the putative class is not properly certified, and we determine, infra, that the claims for injunctive relief have been rendered moot as to the named plaintiffs by reason of their graduation; because there is no proper party before us to raise this issue, we would be unable to reach the merits of it. See Geraghty, 445 U.S. at 400 n.7, 404.

24 C. Mootness

Appellees insist, at several points throughout their brief,

that issues presented are moot as to the named plaintiffs and the

class. Appellants seem to agree with this assertion, as least in

relation to the injunctive claims asserted by the named plaintiffs.

In their brief, Appellants state, “[The Pineda Plaintiffs’]

graduation would render the issue [of injunctive relief] moot and

thereby alleviate the requirement that LSU maintain a women’s

softball team . . . .” Appellants’ Brief at 45. As to the class,

Appellees assert that the district judge’s order was “essentially

class relief.” Appellees’ Brief at 76. They fault Appellants for

failing to “argue in their brief that the compliance plan ordered

by the District Court is deficient or that the plan does not bring

LSU into compliance with respect to Title IX’s effective

accommodation requirements for participatory opportunities.” Id.

at 77. The gist of Appellees’ argument is that the district court,

in effect, ordered class relief; Appellants do not contest that

relief; therefore, any class claims for injunctive relief are moot.

Appellees rely on Locke v. Board of Public Instruction, 499

F.2d 359 (5th Cir. 1974), for the proposition that the district

court’s acceptance of their Compliance Plan moots the class claims.

In that case, a teacher sued her school district for race and sex

discrimination surrounding her maternity leave. Before oral

argument on appeal, the maternity policy was changed and Locke was

transferred, at her own request, into a teaching position that she

found satisfactory.

25 We noted there that “in her original complaint the only relief

sought by Mrs. Locke other than money damages was an injunction

restraining the school system from implementing its present leave

policy against the plaintiff in a discriminatory manner.” Id. at

363 (emphasis added). We went on to explain:

It is clear from the facts before us . . . that the plaintiff herein has now been satisfied as to her request for a job complete with supplemental work and pay. The counsel for the school board . . . has assured this court that the school board always had, and still maintains, good will toward Mrs. Locke. Furthermore, it is clear that the school board has done everything within its power to comply with Mrs. Locke’s wishes within the limitations placed upon the board by the various federal orders and mandates. This court is aware . . . that voluntary cessation of allegedly illegal conduct does not deprive the tribunal of power to hear and determine the cases, i.e., does not make the case moot. But, the mootness in this case . . . depends not at all upon a voluntary cessation of activity, but rather depends on the simple fact that Mrs. Locke’s wishes have been complied with and it is a matter of record that the school board is complying with the various federal mandates and orders as to integration of its school system. Even though . . . it could be argued that this is a question that is capable of repetition, here, . . . that is not possible. The maternity leave policy allegedly forced on Mrs. Locke is no longer in existence, a new one having taken its place on December 12, 1972. Mrs. Locke will never again be forced to comply with that leave policy.

Id. at 364 (internal quotation marks and citations omitted).

Finally, we concluded that “although this matter has generated

public concern, the nature of the case itself we find is that of a

single individual alleging infringement of her rights. This does

not make the dispute one of ‘general public interest’ requiring a

decision even if many attributes of mootness exist.” Id. at 366.

Appellants here have consistently maintained that the alleged

Title IX violation impacts not only themselves, but many women at

LSU. Furthermore, the fact that the district court ordered a

26 Compliance Plan demonstrates that the issues here go far beyond the

impact of the alleged violations on the named plaintiffs. Finally,

Appellees have failed to show the same dedication to accommodating

the desires of Appellants that the school district in Locke

demonstrated. Locke was rightly decided, but, without intending to

put too fine a point on it, it is on all counts not the case before

us today.

This appeal raises three merit-based questions. Appellees

argue that the district court erred in its conclusion that LSU

violated Title IX. Appellants argue that the district court erred

in finding that Appellees did not discriminate intentionally.

Finally, Appellees argue that the district court’s Compliance Plan

requirements were overly broad. The Title IX violation question is

necessarily antecedent to the issue of intentional discrimination,

and the intentional discrimination issue, as discussed infra,

implicates Appellants’ damages claim. The Compliance Plan question

deals with the injunctive relief prayed for by Appellants.

“Justiciability must be analyzed separately on the issues of money

damages and the propriety of equitable relief.” Henschen v. City

of Houston, 959 F.2d 584, 587 (5th Cir. 1992). We, therefore,

analyze separately the mootness of the injunctive claims and the

damages claims. Furthermore, we examine mootness as to the named

plaintiffs and the putative class. “The starting point for

analysis is the familiar proposition that ‘federal courts are

without power to decide questions that cannot affect the rights of

litigants in the case before them.’” DeFunis v. Odegaard, 416 U.S.

27 312, 316 (1974) (quoting North Carolina v. Rice, 404 U.S. 244, 246

(1971)).

1. Injunctive Relief

In the present case, Appellants have all graduated from LSU.

Even assuming that any one of them retains any NCAA eligibility at

this point, they have not argued that there is any likelihood that

any of them will return to LSU and attempt to play varsity sports.

As is so often the case in suits for injunctive relief brought by

students, graduation or impending graduation renders their claims

for injunctive relief moot. See Id. at 319-20; Sapp v. Renfroe,

511 F.2d 172, 175 (5th Cir. 1975). Because the named plaintiffs

will not benefit from a favorable ruling on the question

implicating injunctive relief, we hold that this question is moot

as to them.

The issue of injunctive relief, however, is not moot as to the

putative class. Appellees argue that the district court’s

effective class relief and their compliance with Title IX, based

upon a plan entered into before this litigation began, renders the

issue of injunctive relief moot as to the putative class as well.

Contrary to Appellees’ assertions, it is well established that the

voluntary cessation of allegedly illegal conduct does not deprive the tribunal of power to hear and determine the case, i.e., does not make the case moot. But jurisdiction, properly acquired, may abate if he case becomes moot because (1) it can be said with assurance that there is no reasonable expectation . . . that the alleged violation will recur, and (2) interim relief or events have completely and irrevocably eradicated the effects of the alleged violation. When both conditions are satisfied it may be said that the case is moot because neither party has a legally cognizable interest in the final determination of the underlying questions of fact and law.

28 The burden of demonstrating mootness is a heavy one.

County of Los Angeles v. Davis, 440 U.S. 625, 631 (1979) (internal

citations and quotation marks omitted). In this case, Appellees

bear the burden of demonstrating that “‘there is no reasonable

expectation that the wrong will be repeated.’” ACLU v. Finch, 638

F.2d 1336, 1346 (5th Cir. 1981) (quoting United States v. W.T.

Grant, 345 U.S. 629, 633 (1953)). Appellees have failed to meet

this burden. They have made no representation to this court that

they are dedicated to ensuring equal opportunities and fair

accommodation for both their female and male athletes in the long

run. They simply state that they have instituted varsity women’s

fast-pitch softball and soccer and that they have, as required,

submitted a Compliance Plan to the district court. Appellees have

given no assurance that they will not disband these programs, as

they have with varsity fast-pitch softball in the past. In its May

9, 1997, order, the district court, although speaking highly of

LSU’s turnaround in the area of effective accommodation,

nonetheless required periodic reporting for several years. We will

not secondguess the district court’s reasoned judgment by declaring

this issue moot when Appellees have failed to demonstrate that

their Title IX effective accommodation violations will not recur.

We do not think, however, that the voluntary cessation

exception applies equally to the individual Appellants. Even were

LSU to resume its illegal activity, Appellants, because of their

graduation, would be unaffected. The question of injunctive relief

29 is therefore, as stated supra, rendered moot as to the named

plaintiffs.

2. Monetary Relief

Finally, Appellants’ damages claim is not moot. The district

court held that, with regard to the Pineda Plaintiffs, and we have

remanded for a determination whether, with regard to the Pederson

Plaintiffs, LSU violated the individual rights of each named

plaintiff by failing to accommodate effectively the interests and

abilities of female students. Appellees contest the district

court’s holding. Appellants assert that LSU intentionally

discriminated against women. If these questions on appeal are

answered in Appellants’ favor, then to the extent that LSU’s

violations caused a named plaintiff’s actual damages, that person

is entitled to be compensated for those damages. A live

controversy, therefore, exists with regard to the damages claim,

and the legal questions underlying that claim are not moot. See

Henschen, 959 F.2d at 588.

D. Sovereign Immunity

Appellees contend that the district court lacked subject

matter jurisdiction to consider Appellants’ claims because

Appellees are immune from suit pursuant to the Eleventh Amendment.

Appellants, and the United States as Intervenor, counter that the

Eleventh Amendment does not bar Appellants’ suit because (1)

Congress validly abrogated the States’ Eleventh Amendment immunity

for purposes of Title IX, (2) LSU waived its Eleventh Amendment

immunity when it accepted federal funding for its educational

30 institutions, or (3) jurisdiction properly lies under the doctrine

of Ex Parte Young.15 The district court held that Eleventh

Amendment immunity did not deprive the court of subject matter

jurisdiction.16 See 912 F. Supp. at 901. The district court’s

ruling on Appellees’ Eleventh Amendment immunity is subject to de

novo review. See Seminole Tribe v. Florida, 11 F.3d 1016, 1021

(11th Cir. 1994), aff’d, 517 U.S. 44 (1996).

In order to abrogate a State’s sovereign immunity, Congress

must (1) have “unequivocally expresse[d] its intent to abrogate the

immunity,” and (2) have “acted pursuant to a valid exercise of

power.” Seminole Tribe, 517 U.S. at 55 (internal quotations

omitted).

There is no dispute that Congress unequivocally has expressed

its intent to abrogate the States’ sovereign immunity in the

context of Title IX. In response to Atascadero State Hosp. v.

Scanlon, 473 U.S. 234 (1985), Congress enacted the Civil Rights

Remedies Equalization Act (“CRREA”) as part of the Rehabilitation

15 The United States did not join in Appellants’ argument that jurisdiction lies under the doctrine of Ex Parte Young. Because we determine that Congress validly abrogated state sovereign immunity in this context, we need not, and will not, address the two alternative arguments. 16 The district court reasoned that Congress can validly abrogate Eleventh Amendment immunity pursuant to its Article I spending power. See 912 F. Supp. at 901. This reasoning cannot stand in light of Seminole Tribe. Nevertheless, the district court’s ultimate conclusion is correct, as we will discuss infra.

31 Act Amendments of 1986, § 1003, Pub. L. No. 99-506, 100 Stat. 1845

(codified at 42 U.S.C. § 2000d-7).17 Section 2000d-7 provides:

A State shall not be immune under the Eleventh Amendment of the Constitution of the United States from suit in Federal court for a violation of section 504 of the Rehabilitation Act of 1973, Title IX of the Education Amendments of 1972, the Age Discrimination Act of 1975, 42 U.S.C. § 6101 et seq., Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000d et seq., or the provisions of any other Federal statute prohibiting discrimination by recipients of Federal financial assistance.

42 U.S.C. § 2000d-7(a)(1) (some internal citations omitted).

Thus, the only issue is whether Congress acted pursuant to a

valid exercise of power when abrogating the States’ immunity. See

Seminole Tribe, 517 U.S. at 59 (“Was the Act in question passed

pursuant to a constitutional provision granting Congress the power

to abrogate?”). The Fourteenth Amendment is recognized to be such

a power. See id.; Fitzpatrick v. Bitzer, 427 U.S. 445, 452-56

(1976) (finding that, because the Fourteenth Amendment expanded

federal power at the expense of state power, the Fourteenth

Amendment extended federal power into the province of the Eleventh

Amendment and, therefore, § 5 of the Fourteenth Amendment allows

Congress to abrogate the immunity of the Eleventh Amendment).

Formerly, the Interstate Commerce Clause, see U.S. CONST. art I, §

17 Atascadero held that § 504 of the Rehabilitation Act of 1973, 29 U.S.C. § 794, which prohibits discrimination on the basis of disability by programs receiving federal funds, did not unequivocally demonstrate Congress’s intent to abrogate the States’ Eleventh Amendment immunity in order to authorize private damage actions against State entities. See 473 U.S. at 245-46. Section 2000d-7 was a response to this decision; the provision explicitly abrogates the States’ Eleventh Amendment immunity in the context of § 504 of the Rehabilitation Act and other similar federal statutes, including Title IX.

32 8, cl. 3, was also recognized to be such a power. See Pennsylvania

v. Union Gas Co., 491 U.S. 1, 19-20 (1989) (plurality opinion)

(holding that the power to regulate interstate commerce would be

“incomplete without the authority to render States liable in

damages”). Seminole Tribe, which involved the Indian Commerce

Clause, overruled Union Gas. See Seminole Tribe, 517 U.S. at 63,

72-73 (finding “no principled distinction . . . to be drawn between

the Indian Commerce Clause and the Interstate Commerce Clause,” and

holding that the Eleventh Amendment restricts judicial power under

Article III, and Article I powers cannot be used to circumvent

constitutional limitations).

After Seminole Tribe, then, legislation passed pursuant to

Congress’s Article I powers cannot validly abrogate the States’

sovereign immunity. Appellees contend that Title IX is Spending

Clause legislation, and that therefore Congress does not have the

authority after Seminole Tribe to abrogate the States’ Eleventh

Amendment immunity when acting pursuant to the Spending Clause.

Appellants respond that Title IX can also be justified as an

exercise of Congress’s power pursuant to Section 5 of the

Fourteenth Amendment, and that Congress can, after Seminole Tribe,

abrogate the States’ Eleventh Amendment immunity when acting

pursuant to Section 5 of the Fourteenth Amendment.

We must first decide whether Title IX is merely Spending

Clause legislation, or whether it can also be supported by Section

5 of the Fourteenth Amendment. This court, in Lesage v. Texas, 158

F.3d 213 (5th Cir. 1998),rev’d on other grounds, 120 S.Ct 467

33 (1999), held that Congress validly abrogated the States’ Eleventh

Amendment immunity for purposes of Title VI of the Civil Rights Act

of 1964 by enacting CRREA, 42 U.S.C. § 2000d-7(a)(1).18 In response

to arguments that Title VI was enacted pursuant to the Spending

Clause rather than Section 5 of the Fourteenth Amendment and that

Congress therefore could not validly abrogate the States’ Eleventh

Amendment immunity for purposes of Title VI, we stated that the

subjective intent of the legislators in enacting legislation is

irrelevant:

In evaluating the constitutionality of a statute, we simply ask if Congress sufficiently articulated an abrogation of state sovereign immunity and if it had the power to do so . . . . This is an entirely objective inquiry, for “[t]he constitutionality of action taken by Congress does not depend on recitals of the power which it undertakes to exercise.”

Id. at 217 (quoting EEOC v. Wyoming, 460 U.S. 226, 243 n.18 (1983))

(citations and further internal quotations omitted).

Lesage supports the proposition that, even if Congress stated

that it was acting pursuant to the Spending Clause in enacting

Title IX,19 if Congress could have acted pursuant to Section 5 of

18 Appellants contend that this provision also abrogates the States’ Eleventh Amendment immunity for purposes of Title IX. 19 As Appellees recognize, Congress did not explicitly state upon which provision it relied for authority to pass Title IX. Appellees argue that the statutory framework conclusively demonstrates that Congress was acting pursuant to its Spending Clause power. The Supreme Court has recently agreed. In a series of sexual harassment cases over the last two terms, the Court has made clear its belief that Title IX was enacted pursuant to the Spending Clause. In Davis v. Monroe County Bd. of Ed., 526 U.S. ___, 119 S. Ct. 1661, 1669 (1999), the Court explained that “we have repeatedly treated Title IX as legislation enacted pursuant to Congress’ authority under the Spending Clause.” This conclusion follows the Court’s reasoning

34 the Fourteenth Amendment, Congress has the authority to abrogate

for purposes of Title IX. See id. at 217-18; see also Crawford v.

Davis, 109 F.3d 1281, 1283 (8th Cir. 1997) (“The resolution of

defendants’ contention therefore turns on whether Congress, as an

objective matter, could have enacted Title IX pursuant to § 5 of

the Fourteenth Amendment.”). Moreover, as the Lesage court

recognized, “it is the statute abrogating immunity, not the

particular substantive provision of the statute, which specifically

concerns us.” Lesage, 158 F.3d at 218. Because § 2000d-7, the

provision which abrogated the States’ Eleventh Amendment immunity

for purposes of both Title VI and Title IX, was enacted pursuant to

Section 5 of the Fourteenth Amendment, the Lesage court found that

Congress had validly abrogated the States’ Eleventh Amendment

immunity. See id. at 218-19.

This reasoning supports the conclusion that Congress had the

authority to abrogate the States’ Eleventh Amendment immunity for

purposes of Title IX—either because Title IX could have been

enacted pursuant to Section 5 of the Fourteenth Amendment, see

Crawford, 109 F.3d at 1283 (“[W]e are unable to understand how a

statute enacted specifically to combat [gender] discrimination

could fall outside the authority granted to Congress by § 5.”), or

because the legislation actually abrogating the States’ immunity,

§ 2000d-7, was enacted pursuant to Section 5, see Lesage, 158 F.3d

at 218-19.

in Gebser v. Lago Vista Indep. Sch. Dist., 524 U.S. 274, 287 (1998) and Franklin v. Gwinnett County Pub. Schs., 503 U.S. 60, 74-75 (1992).

35 Other circuits have similarly concluded that Congress validly

abrogated the States’ Eleventh Amendment immunity for purposes of

Title IX. In Crawford v. Davis, 109 F.3d 1281 (8th Cir. 1997), the

court held that Title IX could be justified by Section 5 of the

Fourteenth Amendment, even if Congress did not explicitly state

that it was acting pursuant to its Section 5 authority, and

therefore Title IX validly abrogated the States’ immunity. See id.

at 1283. In Doe v. University of Illinois, 138 F.3d 653 (7th Cir.

1998), the court similarly found that Title IX could be justified

by Section 5 of the Fourteenth Amendment, and that Congress’s

abrogation of the States’ Eleventh Amendment immunity was therefore

valid. See id. at 660; accord Franks v. Kentucky Sch. for the

Deaf, 142 F.3d 360, 363 (6th Cir. 1998) (holding that Congress

validly abrogated Eleventh Amendment immunity for purposes of Title

IX because Congress had authority pursuant to Section 5 of the

Fourteenth Amendment to enact Title IX); cf. Timmer v. Michigan

Dep’t of Commerce, 104 F.3d 833, 838-39 (6th Cir. 1997) (stating

that it is not necessary for Congress to say explicitly which

constitutional provision it is relying upon, and concluding that

the Equal Pay Act was enacted pursuant to Section 5 of the

Fourteenth Amendment).

Notwithstanding our conclusion that Title IX validly abrogates

the States’ sovereign immunity, we pause to address two recent

decisions of the Supreme Court, handed down after oral argument in

this case, which speak to abrogation issues in the area of Eleventh

Amendment sovereign immunity. Appellees have submitted them to us

36 as support for their contention that the instant suit be dismissed

under the Eleventh Amendment. In the first, College Savings Bank

v. Florida Prepaid Postsecondary Ed. Expense Bd., 527 U.S. ___, 119

S. Ct. 2219, 1999 WL 412639 (1999), the Court held that legislation

under § 5 of the Fourteenth Amendment must be confined to

enforcement of the Amendment’s other provisions by legislation that

remedies or prevents constitutional violations. In College Savings

Bank, Petitioner argued that the Trademark Remedy Clarification Act

(“TRCA”) was designed to remedy and to prevent state deprivations

of two property interests without due process of law, but the Court

held that the asserted property interests—the right to be free from

a business competitor’s false advertising about its own product and

the right to be secure in one’s business interests—did not qualify

as protected property rights.

In Florida Prepaid Postsecondary Ed. Expense Bd. v. College

Savings Bank, 527 U.S. ___, 119 S. Ct. 2199, 1999 WL 412723 (1999),

the Court both reaffirmed its holding in Seminole Tribe that

Congress may not rely on Article I powers—here, the Commerce Clause

and the Patent Clause—to abrogate sovereign immunity and extended

the principle of College Savings Bank to cover actions against

states under the Patent and Plant Variety Protection Remedy

Clarification Act. Specifically, the Court in Florida Prepaid held

that abrogation under § 5 is invalid where it cannot be sustained

as legislation enacted to enforce the guarantees of the Fourteenth

Amendment’s Due Process Clause. In order to enact “appropriate”

legislation under the remedial power of § 5, see City of Boerne v.

37 Flores, 521 U.S. 507, 519 (1997), Congress must identify conduct

transgressing the Fourteenth Amendment’s substantive provisions and

must tailor its legislative scheme to remedy or to prevent such

conduct; unremedied patent infringement by the States did not meet

the test of City of Boerne and could not, therefore, validly

abrogate immunity.

We believe it beyond peradventure that Title IX meets the test

first explained in Seminole Tribe and recently clarified by College

Savings Bank and Florida Prepaid. Congress expressed a clear

intent to abrogate immunity with CRREA, and that Act was

appropriately passed under Congress’s § 5 power to remedy past

discrimination. As such, it was appropriate legislation itself and

its goal—protecting the reach of Title IX and other similar

statutes—was, by extension, also appropriate.

III. Title IX

We now turn to the merits of this dispute, and we will address

the underlying issues in Parts III and IV of this opinion. In this

Part, we affirm the district court’s judgment that LSU violated

Title IX and reverse the district court’s judgment that LSU did not

intentionally discriminate against women in the provision of

athletics.

A. Background

Title IX proscribes gender discrimination in education

programs or other activities receiving federal financial

assistance. See North Haven Bd. of Educ. v. Bell, 456 U.S. 512,

514 (1982). Patterned after Title VI of the Civil Rights Act of

38 1964, Pub. L. No. 88-352, 78 Stat. 252, 42 U.S.C. § 2000d (1994),

Title IX, as amended, contains two core provisions. The first is

a “program-specific” prohibition of gender discrimination:

No person in the United States shall, on the basis of sex, be excluded from participation in, be denied the benefits of, or be subjected to discrimination under any education program or activity receiving Federal financial assistance . . . .

§ 901(a), 20 U.S.C. § 1681(a). The second core provision relates

to enforcement. Section 902 of Title IX authorizes each agency

awarding federal financial assistance to any education program to

promulgate regulations “ensuring that aid recipients adhere to §

901(a)’s mandate.” North Haven, 456 U.S. at 514. The “ultimate

sanction” for noncompliance is termination of federal funding or

the denial of future federal grants to the offending institution.

Id. Like § 901, § 902 is program-specific:

[S]uch termination or refusal shall be limited to the particular political entity, or part thereof, or other recipient as to whom such a finding [of noncompliance] has been made, and shall be limited in its effect to the particular program, or part thereof, in which such noncompliance has been so found . . . .

§ 902, 20 U.S.C. § 1682.

Beginning in the mid-1970’s, the Department of Health,

Education and Welfare, and its successor, the Department of

Education, have relied on their § 902 power to promulgate

regulations governing the operation of federally-funded education

programs. These regulations encompass not only athletics policies,

but also actions by funding recipients in the areas of, inter alia,

39 admissions, textbooks, and employment.20 See, e.g., 34 C.F.R. §§

106.21 (admissions), 106.42 (textbooks), 106.51 (employment)

(1999). The regulation most pertinent to the instant controversy

requires that

No person shall, on the basis of sex, be excluded from participation in, be denied the benefits of, be treated differently from another person or otherwise be discriminated against in any interscholastic, intercollegiate, club or intramural athletics offered by a recipient, and no recipient shall provide any such athletics separately on such basis.

34 C.F.R. § 106.41(a) (1999). The regulations further provide that

A recipient which operates or sponsors interscholastic, intercollegiate, club or intramural athletics shall provide equal athletic opportunity for members of both sexes. In determining whether equal opportunities are available the Director will consider, among other factors: (1) Whether the selection of sports and levels of competition effectively accommodate the interests and abilities of members of both sexes; (2) The provision of equipment and supplies;

20 The regulations accompanying Title IX define a “recipient” as

any State or political subdivision thereof, or any instrumentality of a State or political subdivision thereof, any public or private agency, institution, or organization, or other entity, or any person, to whom Federal financial assistance is extended directly or through another recipient and which operates an education program or activity which receives or benefits from such assistance, including any subunit, successor, assignee, or transferee thereof.

34 C.F.R. § 106.2(h) (1999). The Supreme Court recently clarified, in holding that the National Collegiate Athletic Association (“NCCA”) is not a Title IX recipient, that “[e]ntities that receive federal assistance, whether directly or through an intermediary, are recipients within the meaning of Title IX; entities that only benefit economically from federal assistance are not.” National Collegiate Athletic Ass’n v. Smith, ___ U.S. ___, ___, 119 S. Ct. 924, 929 (1999).

40 (3) Scheduling of games and practice time; (4) Travel and per diem allowance; (5) Opportunity to receive coaching and academic tutoring; (6) Assignment and compensation of coaches and tutors; (7) Provision of locker rooms, practice and competitive facilities; (8) Provision of medical and training facilities and services; (9) Provision of housing and dining facilities and services; (10) Publicity. Unequal aggregate expenditures for members of each sex or unequal expenditures for male and female teams if a recipient operates or sponsors separate teams will not constitute noncompliance with this section, but the Assistant Secretary may consider the failure to provide necessary funds for teams for one sex in assessing equality of opportunity for members of each sex.

34 C.F.R. § 106.41(c).

B. Title IX Violation

Appellees argue brazenly that the evidence did not demonstrate

sufficient interest and ability in fast-pitch softball at LSU and

that, therefore, they cannot be liable under Title IX. The heart

of this contention is that an institution with no coach, no

facilities, no varsity team, no scholarships, and no recruiting in

a given sport must have on campus enough national-caliber athletes

to field a competitive varsity team in that sport before a court

can find sufficient interest and abilities to exist. It should go

without saying that adopting this criteria would eliminate an

effective accommodation claim by any plaintiff, at any time. In

any event, the district court’s finding that the requisite level of

interest existed is a finding of fact subject to review for clear

error. Having reviewed the record, we determine that the district

41 court did not clearly err because there was ample indication of an

interest by women in fast-pitch softball.

Appellees argue that the district court applied the wrong

legal framework to assess Appellees’ liability by placing the

evidentiary burden upon them to explain the reason for their 1983

decision to disband the women’s fast-pitch softball team. They

argue for de novo review of that decision, but we agree with

Appellants and the record supports that the district court

considered all the evidence of interest and ability at LSU before

concluding that Appellees were in violation of Title IX, not merely

the fact that LSU disbanded its team in 1983.

Appellees would have us hold that, although the student

population of LSU is 51% male and 49% female, the population

participating in athletics is 71% male and 29% female. Given this

breakdown, they argue that it is improper to consider

proportionality, because to do so would be to impose quotas, and

that the evidence shows that female students are less interested in

participating in sports than male students. The law suggests

otherwise. Title IX provides that the district court may consider

disproportionality when finding a Title IX violation:

This subsection shall not be construed to prevent the consideration in any hearing or proceeding under this chapter of statistical evidence tending to show that such an imbalance exists with respect to the participation in or receipt of the benefits of, any such program or activity by the members of one sex.

20 U.S.C. § 1681(b). LSU’s hubris in advancing this argument is

remarkable, since of course fewer women participate in sports,

given the voluminous evidence that LSU has discriminated against

42 women in refusing to offer them comparable athletic opportunities

to those it offers its male students.

Nevertheless, Appellees persist in their argument by

suggesting that the district court’s reliance on the fact that LSU

fields a men’s baseball team as evidence of discrimination was

improper because there is no requirement that the same sports be

offered for both men and women and because LSU offers nine sports

for women and only seven for men. We find that it was indeed

proper for the district court to consider the fact that LSU fields

a men’s baseball team while declining to field a comparable team

for women despite evidence of interest and ability in fast-pitch

softball at LSU.

Appellees finally contest the district court’s determination

that LSU’s decision to add fast-pitch softball and soccer was not

for the purpose of encouraging women’s athletics. They challenge

the district court’s finding that LSU did not attempt to determine

the interest and ability level of its female student population,

contending that there is evidence in the record that shows that LSU

does analyze the interest level of its female student athletes.

Our review of the record demonstrates no such analysis on the part

of LSU. The proper analytical framework for assessing a Title IX

claim can be found in the Policy Interpretations to Title IX, which

require an analysis of the disproportionality between the

university’s male and female participation, the university’s

history of expanding opportunities for women, and whether the

university effectively accommodates the interests of its female

43 students. See Title IX of the Education Amendments of 1972, Policy

Interpretation, 44 Fed. Reg. 71,413, 71,414 (1979). Specifically,

the Policy Interpretation explains that Title IX’s application to

athletic programs covers three general subject areas: scholarships,

equivalent treatment, and equal accommodation. See id. at 71,415,

71, 417. As a matter of law, a Title IX violation “may be shown by

proof of a substantial violation in any one of the three major

areas of investigation set out in the Policy Interpretation.”

Roberts v. Colorado St. Univ., 814 F. Supp. 1507, 1511 (D. Colo.)

(emphasis added), aff’d in part & rev’d in part sub nom. Roberts v.

Colorado St. Bd. of Agric., 998 F.2d 824 (10th Cir. 1993). Credible

evidence supports the conclusion that LSU failed all three prongs.

Nevertheless, addressing merely the accommodation prong,

regulations adopted by the Department of Education in 1997 also

support the district court’s conclusions. See 34 C.F.R. §

106.37(c)(1) (providing that recipients that award athletic

scholarships must do so with a view toward reasonable opportunities

for such awards to members of both sexes); id. § 106.41(c)(1)

(declaring that “[a] recipient which operates or sponsors

interscholastic, intercollegiate, club or intramural athletics

shall provide equal athletic opportunity for members of both

sexes”); 45 C.F.R. § 86.41(c)(1) (requiring the consideration of

“[w]hether the selection of sports and levels of competition

effectively accommodate the interests and abilities of members of

both sexes”). Applying this framework, as the Supreme Court has

indicated that we should, see Martin v. Occupational Safety &

44 Health Review Comm’n, 449 U.S. 144, 150 (1991), the district court

correctly found that LSU did not have a history of expanding

women’s athletic programs and had not presented credible evidence

regarding the interests and abilities of its student body. These

findings were not clearly erroneous. See Anderson v. City of

Bessemer City, 470 U.S. 564, 575 (1985). Regardless, our

independent review of the record supports the district court’s

conclusion that Appellees failed to accommodate effectively its

female students. Proper evaluation of the district court’s

conclusion that Appellees violated Title IX required a careful

consideration of the evidence presented at trial. Based on that

review, we believe that the district court did not commit clear

error in its factual conclusions or legal error in the standards

that it applied.

C. Intentional Discrimination

The district court found that LSU had violated and continued

to violate the prescriptions of Title IX. The trial judge further

concluded that, notwithstanding this threshold finding, a Title IX

claimant must additionally prove intentional discrimination on the

part of a recipient before she may recover monetary damages.21 With

respect to the claims at issue in this case, the district court

considered the question to be a “very close one” but eventually

21 The district court held that damages could not be recovered under Title IX unless the plaintiff proves that the institution intentionally discriminated. Appellants do not argue on appeal that damages should be available for unintentional discrimination. We, therefore, need not and do not address the accuracy of the district court’s holding in this regard.

45 held that LSU did not intentionally violate Title IX. 912 F. Supp.

at 918. Having carefully reviewed the trial record we hold that

the district court erred in its legal conclusion. We find that LSU

did intentionally violate Title IX, thus we reverse that ruling.

The district court stated that Appellees’ actions were not a

result of intentional discrimination but rather of “arrogant

ignorance, confusion regarding the practical requirements of the

law, and a remarkably outdated view of women and athletics which

created the byproduct of resistance to change.” Id. The district

court reasoned, inter alia, that, because Athletic Director Dean

testified that he believes that his “women’s athletics” program is

“wonderful” and because he was ignorant of the program’s state of

compliance with Title IX, Appellees did not intentionally

discriminate against women. See id. at 919.

The district court’s decision finding LSU to have

unintentionally violated Title IX by not effectively accommodating

their female student-athletes simply does not withstand scrutiny.

The district court stated that

Rather than taking notice of the enormous social change which has taken place in the past 25 years, LSU has continued to assume athletics is as it once was, a traditionally male domain, and its women students did not want to participate in athletics in the same manner and to the same extent as its mean, and acted accordingly.

912 F. Supp. at 920 (emphasis added). If an institution makes a

decision not to provide equal athletic opportunities for its female

students because of paternalism and stereotypical assumptions about

their interests and abilities, that institution intended to treat

women differently because of their sex. Moreover, Appellees’

46 ignorance about whether they are violating Title IX does not excuse

their intentional decision not to accommodate effectively the

interests of their female students by not providing sufficient

athletic opportunities.

Apparently, Dean “believed his program to be so wonderful that

he invited an investigator from the Department of Education’s

Office of Civil Rights to visit LSU to evaluate the athletics

program’s compliance with Title IX.” Id. That representative’s

findings confirmed Dean's ignorance of the actual state of

compliance with Title IX by his athletic program, see id., but the

district court nonetheless reasoned that Dean’s testimony was

“credible” because “otherwise he would not have invited OCR to LSU

to assess the program.” Id. This conclusion ignores the fact

that, already on notice of potential violations, Dean and others

continued to adhere to deprecatory nomenclature when referring to

female athletes, refused to authorize additional sports for women,

and instead seemed content that the “women’s teams fielded [by LSU]

during the relevant time frame performed well in competition.” Id.

This assessment of the athletics program is not merely “arrogance,”

as the district court concluded, see id.; it belies an intent to

treat women differently in violation of the law.

It bears noting that the provisions of Title IX and its

attendant regulations are not merely hortatory; they exist, as does

any law, to sculpt the relevant playing field. Consequently,

Appellees’ alleged ignorance of the law does not preclude our

finding that LSU acted intentionally. Appellees need not have

47 intended to violate Title IX, but need only have intended to treat

women differently. Cf. Local 189, United Papermakers and

Paperworkers v. United States, 416 F.2d 980, 996 (5th Cir. 1969)

(holding that “intent” under Title VII requires only that “the

defendant meant to do what he did” and did not behave

“accident[ally]”); United States v. Koon, 34 F.3d 1416, 1449 (9th

Cir. 1994) (applying the same test to constitutional violations),

aff’d in part and rev’d in part on other grounds, 518 U.S. 81

(1996); United States v. Balistrieri, 981 F.2d 916, 936 (7th Cir.

1992) (holding that a defendant need not actually know that he is

violating the Fair Housing Act in order to be found to have

discriminated). Appellees’ outdated attitudes about women amply

demonstrate this intention to discriminate, and the district court

squarely found that LSU’s treatment of women athletes was

“remarkably outdated,” “archaic,” and “outmoded.” 912 F. Supp. at

918-20. Well-established Supreme Court precedent demonstrates that

archaic assumptions such as those firmly held by LSU constitute

intentional gender discrimination. See, e.g., United States v.

Virginia, 518 U.S. 515, 533 (1996) (holding that an institution’s

refusal to admit women is intentional gender discrimination in

violation of the Equal Protection Clause because, inter alia, of

“overbroad generalizations about the different talents, capacities,

or preferences of males and females”); Roberts v. United States

Jaycees, 468 U.S. 609, 625 (1984) (warning of the dangers posed by

gender discrimination based on “archaic and overbroad

assumptions”). We conclude that, because classifications based on

48 “archaic” assumptions are facially discriminatory, actions

resulting from an application of these attitudes constitutes

intentional discrimination.

In addition to the district court’s evaluation of LSU’s

attitudes as “archaic,” our independent evaluation of the record

and the evidence adduced at trial supports the conclusion that

Appellees persisted in a systematic, intentional, differential

treatment of women. For instance, in meetings to discuss the

possibility of a varsity women’s soccer team, Dean referred to Lisa

Ollar repeatedly as “honey,” “sweetie,” and “cutie” and negotiated

with her by stating that “I’d love to help a cute little girl like

you.” Dean also opined that soccer, a “more feminine sport,”

deserved consideration for varsity status because female soccer

players “would look cute running around in their soccer shorts.”

Dean, charismatically defending LSU’s chivalry, later told the

coach of the women’s club soccer team that he would not voluntarily

add more women’s sports at LSU but would “if forced to.” Among

many other examples, Karla Pineda testified that, when she met with

representatives of the Sports and Leisure Department to request the

implementation of an intramural fast-pitch softball team, she was

told that LSU would not sponsor fast-pitch softball because “the

women might get hurt.”

LSU perpetuated antiquated stereotypes and fashioned a grossly

discriminatory athletics system in many other ways. For example,

LSU appointed a low-level male athletics department staff member to

the position of “Senior Women’s Athletic Administrator,” which the

49 NCAA defines as the most senior women in an athletic department.

LSU consistently approved larger budgets for travel, personnel, and

training facilities for men’s teams versus women’s teams. The

university consistently compensated coaches of women’s team’s at a

rate far below that of its male team coaches.

Appellees have not even attempted to offer a legitimate,

nondiscriminatory explanation for this blatantly differential

treatment of male and female athletes, and men’s and women’s

athletics in general; they merely urge that “archaic” values do not

equate to intentional discrimination. Instead, LSU makes its

mantra the contention that it was either ignorant of or confused by

Title IX and thus cannot be held intentionally to have

discriminated. To support this dubious argument, LSU turns for

support to cases that deal with the standard for school liability

for sexual harassment under Title IX. A series of cases, crowned

by Supreme Court pronouncements in the last two terms, hold that

schools sued for harassment under Title IX must have actual

knowledge of the harassment and cannot be liable on a theory of

strict liability. See Gebser v. Lago Vista Indep. Sch. Dist., 524

U.S. 274, ___, 118 S. Ct. 1989, 1997 (1998); Rosa H. v. San Elizard

Indep. Sch. Dist., 106 F.3d 648, 652-53 (5th Cir. 1997); Canutillo

Indep. Sch. Dist. v. Leija, 101 F.3d 393, 398-400 (5th Cir. 1997).

Where the school has control over the harasser but acts with

deliberate indifference to the harassment or otherwise fails to

remedy it, liability will lie under Title IX. See Davis v. Monroe

County Bd. of Educ., 526 U.S. ___, ___, 119 S. Ct. 1661, 1671

50 (1999). LSU seeks to apply these holdings to the case at bar,

arguing that, before a finding of intentional discrimination is

warranted, Appellees must have been aware that they were

discriminating on the basis of sex by not effectively accommodating

the interests and abilities of its female student-athletes.

We conclude that the Title IX sexual harassment cases

discussed above have little relevance in determining whether LSU

intentionally discriminated here. Indeed, the most significant of

the sexual harassment holdings actually supports Appellants’

argument: LSU arguably acted with deliberate indifference to the

condition of its female athletics program. Cf. Davis, 526 U.S. at

___, 119 S. Ct. at 1671 (holding that deliberate indifference to

differential treatment between the genders can itself cause

discrimination to occur). In any event, the requirement in the

sexual harassment cases—that the academic institution have actual

knowledge of the sexual harassment—is not applicable for purposes

of determining whether an academic institution intentionally

discriminated on the basis of sex by denying females equal athletic

opportunity. In the sexual harassment cases, the issue was whether

the school district should be liable for the discriminatory acts of

harassment committed by its employees. These cases hold that

school districts must themselves have actual discriminatory intent

before they will be liable for the discriminatory acts of their

employees. In the instant case, it is the institution itself that

is discriminating. The proper test is not whether it knew of or is

responsible for the actions of others, but is whether Appellees

51 intended to treat women differently on the basis of their sex by

providing them unequal athletic opportunity, and, as we noted

above, we are convinced that they did. Our review of the record

convinces us that an intent to discriminate, albeit one motivated

by chauvinist notions as opposed to one fueled by enmity, drove

LSU’s decisions regarding athletic opportunities for its female

students.

The judgment of the district court is REVERSED and the case

REMANDED with instruction to proceed to Stage II.

IV. Compliance Plan

Appellees challenge the district court’s Compliance Plan

requirements, as they pertain to soccer. LSU argues that, because

the plaintiffs who played soccer lacked eligibility by the time of

trial, making their claims moot, the Compliance Plan requirements

only should have pertained to fast-pitch softball. Appellees also

challenge the requirement that they gauge the athletic interests of

incoming students through surveys and like materials.

Appellants argue that the relief granted by the district court

was not overbroad because the injury suffered by them was not

merely the absence of a women’s varsity fast-pitch softball team

but Appellees’ failure to provide equal athletic opportunity to its

female students. They also argue that the requirement that

Appellees implement procedures to gauge the interest levels of

their students is necessary to promote effective accommodation

because, in order effectively to accommodate student interests, the

university must know what those interests are. They argue that the

52 purpose of Title IX is to provide broad-based equality in

federally-funded educational programs and not merely to provide

relief to individual plaintiffs.

We find this issue nonjusticiable at this time. In Part

II.A., we determined that the district court abused its discretion

in decertifying the provisionally certified class. We remanded

with instructions to consider further final certification of the

putative class. In part II.C., we determined that the issue of

injunctive relief is moot as to the named plaintiffs. A named

plaintiff whose claim has become moot cannot press the merits of an

issue on behalf of a class when that class has not properly been

certified. See Geraghty, 445 U.S. at 400 n.7, 404.22

To maintain the status quo by leaving the district court’s

injunctive order in place would work an injustice to Appellees,

who, through no fault of their own, would be forced to comply with

an order the merits of which they are powerless to contest. “A

party who seeks review of the merits of an adverse ruling, but is

frustrated by the vagaries of circumstance, ought not in fairness

be forced to acquiesce in the judgment. The same is true when

mootness results from unilateral action of the party who prevailed

22 We note that, although we do not reach the merits of the district court’s Compliance Plan requirements, we do not, at first blush, find that portion of the Compliance Plan dealing with the evaluation and assessment of student interests and abilities problematic. However, while we have not studied the matter closely, we are unclear how the district court justified granting relief with regard to women’s varsity soccer when it determined that no plaintiff had standing to challenge LSU’s failure to field such a team. Of course, this concern may disappear after the district court reaches the merits of the Pederson Plaintiffs’ issues on remand.

53 below.” U.S. Bancorp Mortgage Co. v. Bonner Mall Partnership, 513

U.S. 18, 25 (1994). It cannot reasonably be argued that Appellees

brought about mootness in this case by causing Appellants to be

graduated. They were, it seems, “frustrated by the vagaries of

circumstance.” In such instances it is the custom of appellate

courts to vacate the lower court’s injunctive order, and we follow

that custom here. See id. at 22-23, United States v. Munsingwear,

Inc., 340 U.S. 36, 39-40 (1950); Karcher v. May, 484 U.S. 72, 82-83

(1987). On remand, however, should the district court finally

certify a class, it is free to reinstate so much of its order and

subsequent rulings as is it deems necessary under the then-existing

circumstances.

VI

The numerous holdings and dispositions included in this

opinion warrant iteration:

1) We HOLD that this suit is not barred by the Eleventh

Amendment.

2) We HOLD that to establish standing under a Title IX

effective accommodation claim of the sort presented here, a party

need only demonstrate that she is able and ready to compete for a

position on the unfielded team.

3) With regard to Appellants, we REVERSE the district court’s

ruling that the Pederson Plaintiffs lacked standing to challenge

54 LSU’s failure to field a varsity soccer team and REVERSE its

subsequent judgment dismissing their claims with prejudice. We

AFFIRM the district court’s ruling that Appellants lacked standing

to challenge the entire LSU varsity program. We HOLD that

Appellants’ damages claims, and the questions of Title IX violation

and intentional discrimination underlying them, are not moot as to

the named Appellants. We further HOLD that the issue of injunctive

relief is moot as to the named Appellants. We REMAND to the

district court to determine the merits of the Pederson Plaintiffs’

claims before proceeding to Stage II of trial, the damages phase.

4) With regard to the putative class, we HOLD that the

numerosity prong of Rule 23(a) was satisfied and a class was

necessary, if any such requirement exists. Accordingly, we VACATE

the district court’s decertification order, REVERSE the district

court’s judgment dismissing the claims for class relief, and REMAND

with instructions to consider further the certification of the

putative class in light of this opinion. We HOLD that the issue of

injunctive relief is not moot as to the putative class.

5) With regard to the merit issues, we AFFIRM the district

court’s judgment that Appellees violated Title IX. We REVERSE the

district court’s finding that Appellees did not intentionally

discriminate, VACATE its subsequent judgment denying the Pineda

Plaintiffs’ damages claims, and REMAND to the district court with

instructions to proceed to Stage II of trial. We HOLD that we lack

55 jurisdiction to address the district court’s injunctive relief

order and VACATE that order, leaving the district court free to

reinstate so much of the order and subsequent rulings as it deems

necessary, if and when a class is finally certified.

Appellants do not argue any points of error regarding the

orders appealed from in Nos. 94-30680 and 95-30777; therefore, Nos.

94-30680 and 95-30777 are DISMISSED. We AFFIRM the order appealed

from in No. 97-30427. With regard to Nos. 97-30719 and 97-30722,

we VACATE the order approving LSU’s Compliance Plan with

instructions. With regard to the final judgment appealed from in

97-30744 and 97-30781, and the opinion appealed from in 96-30310,

we AFFIRM in part, REVERSE in part, VACATE in part, and REMAND in

part with instructions. All motions carried with the case are

DENIED. Each party shall bear its own costs.