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

RECOMMENDED FOR FULL-TEXT PUBLICATION

Pursuant to Sixth Circuit Rule 206

ELECTRONIC CITATION: 2000 FED App. 0096P (6th Cir.)

File Name: 00a0096p.06

UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT

_________________

;



LORRIE ANN HORNER, by and



through her father nfr Haskel



Horner; JENNIFER BAKER, by



No. 97-6264

and through her father nfr



Douglas Baker; JULIANA >

BROWN, by and through her 





father nfr Michael Brown;



ANGELLA CHAFFIN, by and



through her father nfr Dale



Chaffin; TRACY DOTSON, by

and through her father nfr 





Sherman Dotson; JACQUELINE



ELSTON, by and through her



father Joseph Elston; AMY



HACKER, by and through her



father nfr Chris Hacker;

ELIZABETH SUZANNE 





HARTLAGE, an adult; KELLY



JOHNSON, by and through her



father nfr Charles Johnson;



MARY CHRISTINE

WHITELOCK, an adult, 





Plaintiffs-Appellants,





LESLIE BURGETT, by and



through her father nfr Billy

1

2 Horner, et al. v. Kentucky High No. 97-6264

Sch. Athletic Ass’n, et al.





Burgett; BARRIE WAGERS, by



and through her father nfr



Lyde Wagers,



Plaintiffs,







v.





KENTUCKY HIGH SCHOOL



ATHLETIC ASSOCIATION;

KENTUCKY STATE BOARD 





FOR ELEMENTARY AND

Defendants-Appellees. 

SECONDARY EDUCATION,

1

Appeal from the United States District Court

for the Western District of Kentucky at Louisville.

No. 92-00295—Edward H. Johnstone,

Senior District Judge.

Argued: February 3, 1999

Decided and Filed: March 20, 2000

Before: JONES, NORRIS, and SUHRHEINRICH, Circuit

Judges.

_________________

COUNSEL

ARGUED: Gregory W. Butrum, Louisville, Kentucky, for

Appellants. Danny C. Reeves, GREENEBAUM, DOLL &

McDONALD, Lexington, Kentucky, Robert E. Stopher,

BOEHL, STOPHER & GRAVES, Louisville, Kentucky, for

Appellees. ON BRIEF: Donald E. Armstrong, Louisville,

Kentucky, for Appellants. Danny C. Reeves, Roger G.

No. 97-6264 Horner, et al. v. Kentucky High 3

Sch. Athletic Ass’n, et al.

Wright, GREENEBAUM, DOLL & McDONALD,

Lexington, Kentucky, Robert E. Stopher, BOEHL, STOPHER

& GRAVES, Louisville, Kentucky, for Appellees.

SUHRHEINRICH, J., delivered the opinion of the court, in

which NORRIS, J., joined. JONES, J. (pp. 26-41), delivered

a separate dissenting opinion.

_________________

OPINION

_________________

SUHRHEINRICH, Circuit Judge. Plaintiffs, a group of

female student athletes attending Kentucky high schools,

appeal following remand from the district court’s order

granting summary judgment to Defendant state school board

and school athletic association on Plaintiffs’ claim of sexual

discrimination under Title IX of the Education Amendments

of 1972, as amended by the Civil Rights Restoration Act of

1987 (20 U.S.C. §1681) ("Title IX"). Plaintiffs also appeal

the denial of their post-judgment motion for attorneys’ fees.

We AFFIRM.

I. BACKGROUND

In 1992, Plaintiffs sued Defendants Kentucky High School

Athletic Association (“Association”) and the Kentucky State

Board for Elementary and Secondary Education (“Board”),

claiming that the Association's failure to sanction fast-pitch

softball violated the Equal Protection Clause of the

Fourteenth Amendment, 42 U.S.C. §1983, Title IX, Section

3 of the Constitution of the Commonwealth of Kentucky, and

Title XXVII, Labor and Human Rights, Chapter 344, Civil

Rights (Ky. Rev. Stat. Ann. § 344.020(1)(b) (Banks-Baldwin

1997)). Specifically, Plaintiffs alleged that Defendants’

failure to sponsor fast-pitch softball for female students

diminished the ability of female student athletes to compete

for college fast-pitch softball athletic scholarships when

compared with male student athletes who played high school

4 Horner, et al. v. Kentucky High No. 97-6264 No. 97-6264 Horner, et al. v. Kentucky High 41

Sch. Athletic Ass’n, et al. Sch. Athletic Ass’n, et al.

baseball and then competed for college baseball athletic discriminatory effect is a requirement of Title IX. Because

scholarships. Plaintiffs requested declaratory and injunctive Defendants are charged with knowledge of the law, but did

relief sanctioning fast-pitch softball for girls, compensatory not recognize fast-pitch softball until 1994, it follows that

damages, certification as a class, attorneys’ fees, and costs. remand is appropriate to determine whether Defendants were

deliberately indifferent to Plaintiffs’ Title IX rights.

The Board and Association defended on the basis of its “25

percent” rule, whereby a new sport would not be sanctioned For the foregoing reasons, I would reverse the district

unless at least 25 percent of the member schools indicated a court’s dismissal of Plaintiffs’ claims of monetary relief and

willingness to participate. At the time the lawsuit was filed, remand for a determination of whether Defendants were

two surveys, in 1988 and 1992 respectively, revealed that the deliberately indifferent to Plaintiffs’ Title IX rights in

member schools indicated only a 9 percent (1988) and a 17 accordance with Davis. I would also reserve judgment as to

percent (1992) interest in fast-pitch softball for girls. whether Plaintiffs were “prevailing parties” for attorney fees

purposes until after the remand.

The district court granted Defendants’ motions for

summary judgment, holding that: (1) Defendants had V.

complied with Title IX because they had offered equal

opportunities in accordance with the interests and abilities of Because I believe that the basis for the majority’s

students; and (2) Defendants had complied with the Equal affirmance is contrary to the remedial purposes of Title IX, I

Protection Clause because they permitted students to dissent.

participate in sanctioned sports without gender restriction.

Plaintiffs appealed, and this Court affirmed in part and

reversed in part. See Horner v. Kentucky High School

Athletic Ass'n, 43 F.3d 265 (6th Cir. 1994) (Horner I).

Horner I affirmed the judgment for Defendants on

Plaintiffs’ equal protection claim because Plaintiffs failed to

prove that Defendants intentionally discriminated against

them, as required by the Equal Protection Clause. See id. at

276. The court held that Plaintiffs had not alleged that

Defendants adopted or adhered to the 25 percent rule because

of rather than in spite of its disparate impact on females and

that sheer disparate impact is insufficient to demonstrate an

equal protection violation. The Horner I panel reversed the

judgment for Defendants on Plaintiffs’ Title IX claim,

however, finding that issues of fact “abound[ed].” See id. at

275.

While Plaintiffs’ first appeal was pending in this Court, the

Kentucky General Assembly amended the statute regulating

119 S.Ct. at 1671.

40 Horner, et al. v. Kentucky High No. 97-6264 No. 97-6264 Horner, et al. v. Kentucky High 5

Sch. Athletic Ass’n, et al. Sch. Athletic Ass’n, et al.

IX. See Title IX of the Education Amendments of 1972; A high school sports. See Ky. Rev. Stat. § 156.070(2) (Banks-

Policy Interpretation; Title IX and Intercollegiate Athletics, Baldwin 1995) (effective July 15, 1994). Where a school

44 Fed. Reg. 71,413 (Dec. 11, 1979).4 The Policy offered one of two similar sports, the amended statute

Interpretation explicitly states that a finding of compliance or directed the Board and the Association to promulgate

noncompliance with Title IX would be based in part on regulations to offer the sport for which the National

whether the federal funding recipient’s athletic programs “are Collegiate Athletic Association (“NCAA”) offers athletic

discriminatory in language or effect[.]” Id. at 71,417, 71,418; scholarships. In response to the passage of § 156.070(2), the

see also 34 C.F.R. § 106.41(c)(1) (“[w]hether the selection of Association amended its Bylaw 40, to state:

sports and levels of competition effectively accommodate the

interests and abilities of members of both sexes” is to be If a member school sponsors or intends to sponsor an

considered for Title IX compliance). These regulations athletic activity that is similar to a sport for which NCAA

provided clear notice to defendants of their Title IX members offer an athletic scholarship, the school shall

obligations. See Davis, 119 S.Ct. at 1671, 1673 (Title IX sponsor the athletic activity or sport for which the

regulations inform5 federal funding recipients of their scholarships are offered. The athletic activities which are

contractual duties). Providing an environment free from similar to sports for which NCAA members offer

scholarships are: Girls' fast pitch softball as compared to

slow pitch.

4

The Policy Interpretation has been cited with approval by several

courts, including this one. See Horner, 43 F.3d at 273-74; Cohen v. KHSAA Bylaws, Div. IV, Bylaw 40.1

Brown Univ., 101 F.3d 155, 166 (1st Cir. 1996).

5

Although similar reasoning with respect to Title VI’s regulations

failed to garner a majority view in Guardians, see 463 U.S. at 628-32

(Marshall, J., dissenting), there is every reason now, in the fullness of 1

subsequent developments, to accord much more force to Justice The following language was added to this bylaw, effective for the

Marshall’s convincing arguments with regard to Title IX. Another reason 1995-96 school year:

why the Alexander Court limited Guardians to Title VI cases was

because, by the time § 504 was enacted, Title VI had been in force for To qualify as having “sponsored” a sport, a school must be able

nearly a decade. See Alexander, 469 U.S. at 294-95 n.11. Title VI’s to demonstrate the following:

enforcement regulations had incorporated a disparate impact standard, and

nearly 40 federal agencies had adopted standards in which Title VI was (1) If similar versions of a particular sport exist and there are

interpreted to bar programs with a discriminatory impact. See Guardians, differences in the scholarship opportunities at the NCAA level

463 U.S. at 629-30 (Marshall, J., dissenting). In Alexander, the Court in that sport, a survey must be taken of the student population at

theorized that because Congress was well-aware of Title VI regulations reasonable times and places to determine the level of interest in

prohibiting a discriminatory effect, but took no steps to restrict the the sport(s).

remedies available under § 504 (which was based on Title VI), then

Congress implicitly rejected an “intentional” standard for § 504 (2) If said survey reveals sufficient interest to field the normal

violations. Alexander, 469 U.S. at 294-95 n.11. Because Title IX was squad required for play in the particular sport and if any version

enacted only one year before § 504, it seems safe to suggest that the same of the sport is to be played, the school shall make facilities, staff,

implicit assumption applies to Title IX. Indeed, because Davis relies on and other allowances to properly field a team in the version of

the Department of Education’s Title IX regulations as providing adequate the sport for which the NCAA members offer scholarships.

notice to defendants of their Title IX obligations, Davis is a validation of

Justice Marshall’s arguments in the context of Title IX cases. See Davis, KHSAA Bylaw 40 §2(1), (2).

6 Horner, et al. v. Kentucky High No. 97-6264 No. 97-6264 Horner, et al. v. Kentucky High 39

Sch. Athletic Ass’n, et al. Sch. Athletic Ass’n, et al.

On remand, the district court again granted summary Defendants have complied with Title IX’s equal opportunity

judgment for Defendants. The district court held that: (1) mandate.” 43 F.3d at 275. On this basis, it reversed the

Plaintiffs’ claims for class certification, injunctive relief, and district court’s entry of summary judgment for Defendants.

declaratory relief under Title IX were moot because of the Nevertheless, the majority now states that Horner I “did not

amendment to Ky. Rev. Stat. Ann. § 156.070; (2) the Title IX hold that Plaintiffs made out a prima facie case of a Title IX

claims of Plaintiffs who had graduated were also moot; and violation,” Ante at 21, and proceeds to grant summary

(3) Plaintiffs’ claims for monetary damages under Title IX judgment. I believe that rather than giving Horner I its proper

failed because Plaintiffs had presented no evidence of effect, this reading simply echoes the dissent in Horner I,

intentional discrimination. which also reasoned that because Plaintiffs “did not present

a prima facie case of a Title IX violation,” summary judgment

Plaintiffs moved to alter judgment and also moved for should have been granted on the Title IX claim. 43 F.3d at

attorneys’ fees. The district court denied both motions. 276 (Batchelder, J., dissenting in part). Similarly, when the

Regarding attorneys’ fees, the district court found that current majority now concludes that summary judgment is

Plaintiffs had received no relief on the merits of their claim, warranted because Plaintiffs have “failed to offer any

and that there was no proof that Plaintiffs had been the additional evidence” that Title IX had been violated, it again

catalyst for Defendants’ policy change. Plaintiffs appeal. runs roughshod over the Horner I conclusion that there was

a sufficient dispute in the record to withstand summary

II. DISCUSSION judgment. Yet again, the majority’s conclusion more closely

adheres to the Horner I dissent, which found the record

On appeal, Plaintiffs challenge the district court’s refusal to “silent or otherwise inadequate” on the issues “upon which

grant money damages under Title IX and its denial of their the plaintiffs’ case depends,” and which castigated the

request for attorneys’ fees. Plaintiffs’ statistics showing a disparity between boys’ and

girls’ participation in Kentucky high school sports. 43 F.3d

A. Compensatory Damages at 277 (Batchelder, J., dissenting in part). In sum, I do not

Plaintiffs argue that the district court erred in granting believe this Court should stamp its approval on the district

summary judgment because the Horner I panel did not hold court’s clear mishandling of the Horner I remand, let alone

that there was no evidence of intentional discrimination by rewrite the conclusion of Horner I’s majority in the voice of

Defendants regarding Title IX. Plaintiffs further contend that its dissent.

Title IX does not require intentional discrimination to recover Second, contrary to the majority, I believe it is certainly

damages. Finally, Plaintiffs argue that if monetary damages possible that the standards of notice and deliberate

are premised upon a finding of intentional discrimination, indifference could be met in this case. Defendants were, after

Defendants’ gender-based classification meets that standard. all, the sole entities that could sanction interscholastic sports

We address Plaintiffs’ second argument first. in Kentucky, and implemented slow pitch softball in 1982.

1. Intent Requirement Nor can Defendants argue that they would be unfairly

“surprised” by imposition of a monetary award, as were the

Plaintiffs contend that a lack of intentional discrimination defendants in Guardians. Three years before Defendants

does not always preclude a plaintiff from recovering money sanctioned slow-pitch softball, the Department of Health,

damages under Title IX. Plaintiffs’ claim notwithstanding, Education and Welfare issued its Policy Interpretation of Title

38 Horner, et al. v. Kentucky High No. 97-6264 No. 97-6264 Horner, et al. v. Kentucky High 7

Sch. Athletic Ass’n, et al. Sch. Athletic Ass’n, et al.

caused by a “neutral policy.” In each situation, the student is proof of intent, however defined, is the sine qua non to

being denied the use of school resources on the basis of her compensatory relief for any type of Title IX violation. A

gender–precisely the evil Title IX was designed to prevent. brief history of the key Title IX cases makes that clear. In all

And in each situation, the defendant is “well aware” of the of the relevant cases, the Supreme Court has consistently

deprivation of opportunities. It follows that in each situation, invoked a “contract” rationale: that under Spending Clause

monetary relief should be available. legislation, the relationship between the government and the

federal funding recipient is consensual. A recipient should

IV. therefore not be subject to money damages unless it has notice

that it will be liable for the conduct at issue.

Finally, I disagree with the majority’s decision to overlook

the district court and magistrate court’s error below, an error In 1979, the Supreme Court first construed an implied

which I believe deprived Plaintiffs of the opportunity to private right of action under Title IX. See Cannon v.

satisfy the deliberate indifference standard. Our reviewing University of Chicago, 441 U.S. 677 (1979). The Court

responsibility is to correct error, not rationalize it. reasoned that because Title IX was patterned after Title VI of

the Civil Rights Act of 1964, which has been construed as

The majority concedes that the magistrate court was containing an implied private right of action, “[t]he drafters

“technically incorrect” in holding that the Horner I opinion of Title IX explicitly assumed that it would be interpreted and

established that there was no intentional discrimination for applied as Title VI had been [interpreted and applied].” Id. at

Title IX purposes as a matter of law. Ante at 16. As the 696. See also Guardians Ass’n v. Civil Serv. Comm’n of New

majority acknowledges, the original panel held “that there York City, 463 U.S. 582, 594 (1983) (plurality) (noting that a

were genuine issues of fact regarding a Title IX violation.” major part of the analysis in Cannon was “that Title IX had

Id. Yet the magistrate court improperly applied the Horner I been derived from Title VI, that Congress understood that

panel’s summary judgment on the equal protection claim to private remedies were available under Title VI, and that

the Title IX claim, concluding, as a matter of law, that there Congress intended similar remedies to be available under

was no intentional discrimination under Title IX. J.A. at 340. Title IX”).

It further stated that Plaintiffs had not offered additional

evidence regarding intentional discrimination since the The relationship between monetary damages and proof of

remand, and thus declared Plaintiffs’ claim for monetary intent emerged in Guardians, a Title VI case. There, Black

damages “not viable.” J.A. at 340. Despite this clear and Hispanic police officers sued for damages under Title VI,

misreading of Horner I, rather than remanding for the district alleging that their layoffs under the police department’s last-

court to assess whether Defendants were deliberately hired, first-fired policy were discriminatory. The plaintiff

indifferent to Plaintiffs’ Title IX rights, the majority still finds officers claimed that the policy disproportionately affected

for Defendants. them because they had lower scores on qualifying

examinations than White applicants and accordingly were

I find this result unacceptable. First, I think the majority’s hired later than higher scoring White applicants. Thus, when

discussion improperly revisits and re-decides the dispute it came layoffs, Black officers were laid-off before White

already resolved by Horner I. Over a dissent, the Horner I officers who had been hired before plaintiffs because of their

majority concluded that “genuine issues of material fact higher qualifying examinations. The district court

abound in this case, and preclude any determination that acknowledged the discriminatory impact of the policy but,

8 Horner, et al. v. Kentucky High No. 97-6264 No. 97-6264 Horner, et al. v. Kentucky High 37

Sch. Athletic Ass’n, et al. Sch. Athletic Ass’n, et al.

nevertheless, found that the plaintiffs failed to prove that the the present situation.” Ante at 13. On the other hand, the

defendant had acted with discriminatory intent. majority concludes, Guardians is this case’s “equivalent.” Id.

Given that Davis holds that Title IX’s regulations put federal

The plaintiffs appealed the issue of whether Title VI funding recipients on notice of their contractual duties, and

requires proof of discriminatory intent. See id. at 584. given that the regulations state that Title IX is violated when

Although a fractured ruling, a majority of the Court held that a school’s athletic policies are discriminatory in effect, the

Title VI supports a private right of action providing limited majority’s distinguishing of Davis is without significance.

declarative and injunctive relief for unintentional violations. Furthermore, I can discern no practical difference between

See id. at 602. A different majority of the Court rejected the Defendants’ “neutral policy” and a university’s failure

plaintiffs’ argument that monetary damages were available for affirmatively to gauge the interest for fast-pitch softball

unintentional discrimination.2 Although his rationale for this among its student body. I find it incongruent that liability

ruling did not gain a majority, Justice White explained that: under the former should be measured by an “animus”

standard while the latter by a “deliberate indifference”

We have also indicated that “make whole” remedies standard even though both violations arise under the same

are not ordinarily appropriate in private actions seeking statute.

relief for violations of statutes passed by Congress

pursuant to its “power under the Spending Clause to I also believe that such a distinction finds no support in

place conditions on the grant of federal funds.” Davis, as the Court again reminded us that Title IX protects

Pennhurst State School v. Halderman, 451 U.S. 1, 15, students, not schools:

Consider, for example, a case in which male students

2

physically threaten their female peers every day,

Justice White explained the fractured votes as follows: successfully preventing the female students from using a

particular school resource–an athletic field or a computer

Despite the numerous opinions, the views of at least five lab, for instance. District administrators are well aware

Justices on two issues are identifiable. The dissenters, Justices

BRENNAN, MARSHALL, BLACKMUN, AND STEVENS, of the daily ritual, yet they deliberately ignore requests

join with me to form a majority for upholding the validity of the for aid from the female students wishing to use the

regulations incorporating a disparate-impact standard. See n.2, resource. The district’s knowing refusal to take any

supra. A different majority, however, would not allow action in response to such behavior would fly in the face

compensatory relief in the absence of proof of discriminatory of Title IX’s core principles, and such deliberate

intent. Justice REHNQUIST and I reach this conclusion

directly. See Parts II and IV, supra; post, at 3237 indifference may appropriately be subject to claims for

(REHNQUIST, J., concurring in the judgment). Justice monetary damages.

POWELL, joined by THE CHIEF JUSTICE, post at 3235,

believe that no private relief should ever be granted under Title Davis, 119 S.Ct. at 1675. I fail to see why the above rule does

VI under any circumstances. Justice O’CONNOR, post, at not apply to Defendants in this case. If a Title IX defendant

3237, would hold that all relief should be denied unless intentionally deprives a student of educational opportunities

discriminatory intent is proven. It follows from the views of

these latter three Justices that no compensatory relief should be when it fails to curb harassment caused by third parties, then

awarded if discriminatory animus is not shown. surely a defendant likewise intentionally deprives students of

those opportunities when it fails to rectify athletic inequities

Id. at 607 n.27 (White, J.).

36 Horner, et al. v. Kentucky High No. 97-6264 No. 97-6264 Horner, et al. v. Kentucky High 9

Sch. Athletic Ass’n, et al. Sch. Athletic Ass’n, et al.

1016 (5th Cir. 1996) (allowing recovery only upon showing 101 S. Ct. 1531, 1539, 67 L. Ed.2d 694 (1981). This is

that school responded to harassment claims differently on the because the receipt of federal funds under typical

basis of gender)). Rejecting Rowinsky and the very “animus” Spending Clause legislation is a consensual matter: the

standard urged by Defendants, the Court held that Title IX State or other grantee weighs the benefits and burdens

“makes clear that . . . students must not be denied access to before accepting the funds and agreeing to comply with

educational benefits and opportunities on the basis of gender,” the conditions attached to their receipt. . . .

and that such a denial of benefits is to be measured from a

“deliberate indifference” and/or an “actual knowledge” Id. at 596 (White, J.).

standard. Id. at 1675.

In Franklin v. Gwinnett County Public Schools., 503 U.S.

In my view, Davis makes abundantly clear that the crucial 60, 74 (1992), the Supreme Court explicitly established that

factor determining whether a defendant has intentionally the implied right of action under Title IX in Cannon provides

violated Title IX is notice. Besides, Davis was hardly a a damages remedy. In Franklin, a student sued a school

revolutionary opinion. Rather, the decision marks the third district under Title IX, alleging that the school district knew

time that the Court has articulated a “deliberate indifference” that she had been sexually harassed by a teacher, but did

standard for Title IX liability in this decade. Both Gebser and nothing. The Court held that damages were not available for

Franklin involved a Title IX lawsuit filed against a school Title IX violations from the school district unless the

district after a teacher had sexually abused the student- discrimination was intentional. Significantly, Franklin

plaintiff. In Franklin, the Court authorized compensatory characterized the holding of Guardians the following way:

damages under Title IX for the first time, reasoning that “[t]he

point of not permitting monetary damages for an unintentional Though the multiple opinions in Guardians suggest that

violation is that the receiving entity lacks notice that it will be the difficulty of inferring the common ground among the

liable for a monetary award. The notice problem does not Justices in that case, a clear majority expressed the view

arise in a case such as this, in which intentional that damages were available under Title VI in an action

discrimination is alleged.” Franklin, 503 U.S. at 74-75. The seeking remedies for an intentional violation, and no

Court ruled that the defendant-school district had Justice challenged the traditional presumption in favor of

“intentionally” violated Title IX because school officials were a federal court’s power to award appropriate relief in a

“aware of and investigated [the teacher’s] sexual harassment cognizable cause of action.

of Franklin and other female students [but] took no action to

halt it and discouraged Franklin from pressing charges against Id. at 70.

[the teacher].” Id. at 64-65. Conversely, in a similar situation

six years later, the Court held that the defendant had not Justice White, this time writing for the majority, applied the

intentionally violated Title IX because it had no notice of the same Spending Clause analysis to Title IX that he used in

sexual harassment. See Gebser, 118 S.Ct. at 1999-2000 Guardians under Title VI:

(noting that plaintiffs admitted that they could not prevail In Pennhurst State School and Hospital v. Halderman,

under an “actual notice” standard). . . . the Court observed that remedies were limited under

The majority suggests that the meaning of Gebser and such Spending Clause statutes when the alleged violation

Davis is unclear because they “are not readily analogous to was unintentional. Respondents and the United States

maintain that this presumption should equally apply to

10 Horner, et al. v. Kentucky High No. 97-6264 No. 97-6264 Horner, et al. v. Kentucky High 35

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intentional violations. We disagree. The point of not Finally, and most significantly, the Court was recently

permitting monetary damages for an unintentional presented in Davis with an opportunity to apply the animus

violation is that the receiving entity of federal funds lacks standard as a requisite for monetary recovery under Title IX,

notice that it will be liable for a monetary award. . . . but instead ruled that a “deliberate indifference” standard

This notice problem does not arise in a case such as this, would support a finding of intentional discrimination. In

in which intentional discrimination is alleged. Davis, the plaintiff brought a Title IX action after her

complaints of sexual harassment by a fellow classmate were

Franklin, 503 U.S. at 74-75 (citation omitted) (emphasis ignored by school officials. See Davis, 119 S.Ct. at 1666-67.

added). Franklin did not, however, define the contours of the The Court noted that the circuits were split for the standard of

school district’s liability in such a situation. intentional discrimination in Title IX sexual harassment cases,

and that one circuit had endorsed the “animus” standard for

Gebser v. Lago Vista Independent School District, 524 monetary recovery in Title IX cases. See id. at 1668-69

U.S. 274, 118 S. Ct. 1989 (1998) took up that task. See id. at (citing Rowinsky v. Bryan Indep. Sch. Dist., 80 F.3d 1006,

__, 118 S. Ct. at 1995. There the Court held that a school

district may be held liable for damages under Title IX, but

only if the district had “actual notice” and was “deliberately

indifferent” to the underlying violation. See id. at 1999. In 1982) (compensatory relief available for § 504 plaintiff; complaint gave

Gebser, a high school student and her parents sued a school defendants adequate notice that they were charged with violating federal

district for damages under Title IX, alleging that a teacher antidiscrimination mandates); Love v. McBride, 896 F. Supp. 808, 810

sexually harassed her. The Supreme Court rejected the use of (N.D. Ind. 1995) (refusing to accommodate plaintiff despite repeated

requests for access amounted to intentional discrimination), aff’d 103 F.3d

agency or negligence principles to render the school district 558 (7th Cir. 1996).

liable for monetary damages under Title IX. See id. at 1997 In each of these cases, the federal funding recipient denied equal

(“we conclude that it would ‘frustrate the purposes’ of Title opportunity to the § 504 plaintiff by refusing to provide an

IX to permit a damages recovery against a school district for accommodation for the plaintiff’s disability. Surely there was no

a teacher’s sexual harassment based on principles of “animus” against the disabled plaintiff either individually or as a class in

these cases. Rather, these defendants were “indifferent” to their federal

respondeat superior or constructive notice, i.e., without actual obligations– very much like defendants in Title IX athletic cases.

notice to a school district official”). Observing once again Nonetheless, the statutory violations were still “intentional” because the

that Title IX was modeled after Title VI, Justice O’ Connor, defendants had full knowledge of their own discriminatory conduct. As

writing for the majority, invoked the “contract” rationale of the Second Circuit explained:

Guardians:

[I]ntentional discrimination may be inferred when a

“policymaker acted with at least deliberate indifference to the

Title IX’s contractual nature has implications for our strong likelihood that a violation of federally protected rights

construction of the scope of available remedies. When will result from the implementation of the [challenged] policy

Congress attaches conditions to the award of federal . . . [or] custom.” Ferguson v. City of Phoenix, 931 F. Supp.

funds under its spending power, as it has in Title IX and 688, 697 (D. Ariz. 1996), aff’d and remanded, [157 F.3d 668

Title VI, we examine closely the propriety of private (9th Cir. 1998)] . . . ; see also Canton v. Harris, 489 U.S. 378,

385, 109 S. Ct. 1197, 103 L. Ed. 2d 412 (1989).

actions holding the recipient liable in monetary damages

for noncompliance with the condition. Our central Bartlett, 156 F.3d at 331. The Second Circuit’s understanding of

concern in that regard is with ensuring “that the receiving “intentional discrimination” is in perfect accordance with the Supreme

Court’s decision in Davis.

34 Horner, et al. v. Kentucky High No. 97-6264 No. 97-6264 Horner, et al. v. Kentucky High 11

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1999);2 Moreno v. Texas Southern Univ., 573 F. Supp. 73, 77 entity of federal funds [has] notice that it will be liable

(S.D. Tex. 1983) (recognizing that Justice White’s opinion on for a monetary award.” Justice White’s opinion

damages was not the opinion of the Court); Tyler v. City of announcing the Court’s judgment in Guardians Assn. v

Manhattan,118 F.3d 1400, 1414 (10th Cir. 1997) (Jenkins, J., Civil Serv. Comm’n of New York City, for instance,

dissenting). concluded that the relief in an action under Title VI

alleging unintentional discrimination should be

My position that Justice White’s opinion must be kept prospective only, because where discrimination is

within its proper bounds is further supported by subsequent unintentional, “it is surely not obvious that the grantee

Supreme Court decisions. A unanimous Court explained the was aware that it was administering the program in

Guardians holding in an opinion issued the following term: violation of the [condition].” We confront similar

“A majority of the [Guardians] Court agreed that retroactive concerns here. If a school district’s liability for a

relief is available to private plaintiffs for all discrimination, teacher’s sexual harassment rests on principles of

whether intentional or unintentional, that is actionable under constructive notice or respondeat superior, it will

Title VI.” Consolidated Rail Corp. v. Darrone, 465 U.S. 624, likewise be the case that the recipient of funds was

630 n.9 (1984). It seems to me that if the Guardians Court unaware of the discrimination. It is sensible to assume

did indeed limit compensatory relief to cases of intentional that Congress did not envision a recipient’s liability in

discrimination involving discriminatory animus, such a damages in that situation.

limitation would have been acknowledged in Consolidated

Rail Corporation’s explanation of Guardians. See Bartlett, Gebser, 118 S. Ct. at 1998 (citations omitted).3

970 F. Supp. at 1148-49. Additionally, another unanimous

Court explicitly limited Guardians to situations involving

“factors peculiar to Title VI” when it refused to read an intent 3

requirement in § 504 of the Rehabilitation Act of 1973, 29 The Gebser court also explained the distinction between Title IX

U.S.C. § 701 et seq., which was another Spending Clause and VII:

That contractual framework distinguishes Title IX from Title

antidiscrimination statute.3 See Alexander v Choate, 469 U.S. VII, which is framed in terms not of a condition but of an

287, 294-95 n.11 (1985). outright prohibition. Title VII applies to all employers without

regard to federal funding and aims broadly to “eradicat[e]

discrimination throughout the economy.” Landgraf v. USI Film

2 Products, 511 U.S. 244, 254, 114 S. Ct. 1483, 1491, 128 L.

Bartlett was vacated in light of the Supreme Court’s recent decisions Ed.2d 229 (1994) (internal quotation marks omitted). Title VII,

limiting the scope of “disability” under the ADA. See Sutton v. United moreover, seeks to “make persons whole for injuries suffered

Air Lines, Inc., 119 S.Ct. 2139 (1999); Murphy v. United Parcel Serv., through past discrimination.” Ibid. (internal quotation marks

Inc., 119 S.Ct. 2133 (1999); Albertsons, Inc. v. Kirkingburg, 119 S.Ct. omitted). Thus, whereas Title VII aims centrally to compensate

2162 (1999). Nevertheless, I still find Bartlett’s discussion of damages victims of discrimination, Title IX focuses more on “protecting”

to be a correct statement of the law. individuals from discriminatory practices carried out by

3 recipients of federal funds. Cannon, supra, at 704, 99 S. Ct., at

Incidentally, courts have been very hesitant to hold § 504 plaintiffs 1961-62. That might explain why, when the Court first

to the “animus” standard as a requisite for compensatory relief. See, e.g., recognized the implied right under Title IX in Cannon, the

Bartlett,156 F.3d at 330-31; Greater Los Angeles Council on Deafness v. opinion referred to injunctive or equitable relief in a private

Zolin, 812 F.2d F.2d 1103, 1106-09 (9th Cir. 1987) (allowing action for action, see 441 U.S., at 705, and n. 38, 710, n. 44, 711, 99 S. Ct.,

monetary relief for discriminatory refusal to provide interpreters to deaf at 1962, and n. 38, 1964, n. 44, 1965, but not to a damages

plaintiffs); Miener v. State of Missouri, 673 F.2d 969, 978-79 (8th Cir. remedy.

12 Horner, et al. v. Kentucky High No. 97-6264 No. 97-6264 Horner, et al. v. Kentucky High 33

Sch. Athletic Ass’n, et al. Sch. Athletic Ass’n, et al.

Most recently, in Davis v. Monroe County Board of unintentional discrimination.1 Of the seven opinions filed in

Education, 119 S. Ct. 1661 (1999), the Supreme Court that case, only Justice White’s opinion suggested a standard

considered whether a damages action under Title IX will lie for “intentional discrimination.” See id. at 584 (“I conclude

against a school board for student-on-student harassment. that . . . in the absence of proof of discriminatory animus,

Consistent with its earlier cases, the Davis Court held that compensatory relief should not be awarded to private Title VI

private damages actions are available only where federal plaintiffs”) (White, J.); id. at 607 n.27 (same). Only one other

funding recipients act with “deliberate indifference” to justice joined Justice White on this issue. See id. at 612

“known” acts of harassment. Again, the Court reasoned: (Rehnquist, J., concurring in the judgment). Indeed, this

Court has already declined to take an expansive reading of

This Court has indeed recognized an implied private Justice White’s opinion in Guardians for the very reason that

right of action under Title IX, see Cannon v. University it did not command a majority of the Court. See

of Chicago, supra, and we have held that money Neighborhood Action Coalition v. Canton, Ohio, 882 F.2d

damages are available in such suits, Franklin v. Gwinnett 1012, 1015 (6th Cir. 1989); see also Bartlett v. New York

County Public Schools, 503 U.S. 60, 112 S. Ct. 1028, State Bd. of Law Exam’rs, 970 F. Supp. 1094, 1148-49 (S.D.

117 L.Ed.2d 208 (1992). Because we have repeatedly N.Y. 1997), aff’d in relevant part, 156 F.3d 321 (2d Cir.

treated Title IX as legislation enacted pursuant to 1998), vacated on other grounds, 67 U.S.L.W. 3783 (June 24,

Congress’ authority under the Spending Clause, however,

see, e.g., Gebser v. Lago Vista Independent Schools,

supra, at 287, 118 S. Ct. 1989 (Title IX); Franklin v.

Gwinnett Public County Schools, supra, at 74-75, and n.

8, 112 S. Ct. 1028 (Title IX), see also Guardians Assn. v.

Civil Serv. Comm’n of New York City, 463 U.S. 582, 1

598-99, 103 S. Ct. 3221, 77 L.Ed.2d 866 (1983) (opinion Justice White summarized the various votes as follows:

of White, J.) (Title VI), private damages actions are

Despite the numerous opinions, the views of at least five Justices

available only where recipients of federal funding had on two issues are identifiable. The dissenters, JUSTICES

adequate notice that they could be liable for the conduct BRENNAN, MARSHALL, BLACKMUN, and STEVENS, join

at issue. When Congress acts pursuant to its spending with me to form a majority for upholding the validity of the

power, it generates legislation “much in the nature of a regulations incorporating a disparate-impact standard. See n. 2,

contract: in return for federal funds, the States agree to supra. A different majority, however, would not allow

comply with federally imposed conditions.” Pennhurst compensatory relief in the absence of proof of discriminatory

intent. JUSTICE REHNQUIST and I reach this conclusion

State School and Hospital v. Halderman, 451 U.S. 1, 17, directly. See Parts III and IV, supra; post, at 612

101 S. Ct. 1531, 67 L.Ed.2d 694 (1981). In interpreting (REHNQUIST, J., concurring in judgment). JUSTICE

language in spending legislation, we thus “insis[t] that POWELL, joined by THE CHIEF JUSTICE, post, at 608-610,

Congress speak with a clear voice, “recognizing that believes that no private relief should ever be granted under Title

“[t]here can, of course, be no knowing acceptance [of the VI under any circumstances. JUSTICE O'CONNOR, post, at

615, would hold that all relief should be denied unless

discriminatory intent is proved. It follows from the views of

these three latter Justices that no compensatory relief should be

awarded if discriminatory animus is not shown.

Gebser, 118 S. Ct. at 1997-98. Id. at 463 U.S. at 607 n. 27 (White, J.).

32 Horner, et al. v. Kentucky High No. 97-6264 No. 97-6264 Horner, et al. v. Kentucky High 13

Sch. Athletic Ass’n, et al. Sch. Athletic Ass’n, et al.

athletic opportunities are more often–if not always– the result terms of the putative contract] if a State is unaware of the

of misperceptions, ignorance, or an unwillingness to alter the conditions [imposed by the legislation] or is unable to

status quo rather than a conscious decision to treat women ascertain what is expected of it.” Ibid; see also id., at 24-

differently because they are women. Because the “animus” 25, 101 S. Ct. 1531.

standard ensures that Title IX defendants will be virtually

impervious to a money judgment, they have little incentive to Id. at __, 118 S. Ct. at 1669-70. Davis thus extended the rule

rectify any inequities in their athletic programs until judicially of Gebser to student-on-student sexual harassment when the

directed. Instead, the“animus” standard allows defendants to school officials are aware of the misconduct but do nothing to

remain blissfully ignorant of their Title IX obligations with stop it, despite its ability to exercise control over the situation.

little fear of having to pay damages for depriving their

students of equal athletic opportunities. For this reason, I In sum, although the Supreme Court has not yet expressly

believe the standard is antithetical to the remedial purposes of ruled on the point, we think that it would likely hold that

Title IX, frustrating, rather than promoting, the Act’s central proof of intentional discrimination is a prerequisite for money

goals See Gebser, 118 S.Ct. at 2005 (Stevens, J., dissenting). damages under Title IX when a facially neutral policy is

challenged under a disparate impact theory. As the preceding

III. discussion illustrates, the Supreme Court has consistently

applied Justice White’s Spending Clause analysis as first

Moreover, I believe the standard itself rests on flimsy legal articulated in Guardians in its Title IX decisions. Given the

ground. The sole source for the“discriminatory animus” consensual relationship between federal agency and recipient,

standard is Justice White’s plurality opinion in Guardians, the recipient must be aware of the conditions attached to the

463 U.S. at 584-607 (White, J.). In Guardians, a class of receipt of those funds. As Justice White remarked in

minority civil employees in New York City brought an action Franklin, “The point of not permitting monetary damages for

under Title VI of the Civil Rights Act of 1964, contending an unintentional violation is that the receiving entity of

that the city’s “last hired, first fired” policy had a disparate federal funds lacks notice that it will be liable for a monetary

effect on minority workers. award.” Franklin, 503 U.S. at 74. The dissent, in suggesting

that we are ignoring Title IX’s remedial purposes, completely

The issue in Guardians was “whether proof of ignores this countervailing interest, which the intent

discriminatory intent [was] required to establish a violation of requirement seeks to accommodate. Thus, we conclude that

Title VI[.]” Id. at 615 (Marshall, J., dissenting). Seven compensatory damages under Title IX are available when a

opinions were filed in the Guardians case, in which a facially neutral policy is challenged only if an intentional

consensus emerged twice. First, a majority of the Court violation is shown.

agreed that injunctive and declaratory relief were available for

so-called “unintentional” violations of Title VI. Second, a This leaves the question of what standard to apply to

different majority of the Court rejected the workers’ argument determine intent when a facially neutral policy is challenged.

that monetary damages were recoverable in cases of Currently, the only clear test in the Supreme Court is that of

“deliberate indifference.” However, the cases from which

that test arose, Franklin, Gebser, and Davis, all address

deliberate indifference to sexual harassment, and are not

readily analogous to the present situation. See Pederson v.

14 Horner, et al. v. Kentucky High No. 97-6264 No. 97-6264 Horner, et al. v. Kentucky High 31

Sch. Athletic Ass’n, et al. Sch. Athletic Ass’n, et al.

Louisiana State Univ., ___ F.3d ___, Nos. 94-30680, 95- Yet, purported “unintentional” violations of Title IX are

30777, 96-30310, 97-30427, 97-30719, 2000 WL 19350, at * pervasive in our educational institutions even a quarter-

21 (5th Cir., Jan. 27, 2000). In those cases the school district century after the statute’s enactment. While much has

was sued for its failure to prevent its agents from sexually changed for female athletes since the passage of Title IX,

harassing a student (or engaging in some other form of much remains the same. According to the Department of

misconduct). Thus, “intent” in that context means “actual Education, in 1997,

notice” of the abuse by a third party and a failure to stop it.

[a]t the high school level, there are still about 24,000

This case is the Title IX equivalent of Guardians. In more boys’ varsity teams than girls’ teams; in college,

Guardians, the district court acknowledged the disparate women receive only one-third of all athletic scholarships;

impact of the defendant police department’s employment and, between 1992 and 1997, overall operating

policies but did not impose liability for damages because the expenditures for women’s college sports programs grew

policies were not intentionally discriminatory. However, as only 89 percent, compared to 139 percent for men,

the dissent notes, only Justice White advocated a standard for representing only 23 percent of the total operating

intentional discrimination when a facially neutral policy is expenses.

challenged, that of “discriminatory animus.” See Guardians,

463 U.S. at 584 (White, J.) (“I conclude that . . . in the United States Department of Education, Title IX: 25 Years of

absence of proof of discriminatory animus, compensatory Progress, Part 6 (1997). Another study conducted on Title

relief should not be awarded to private Title VI plaintiffs”); IX’s Silver Anniversary concluded that while there had been

id. at 607 n.27 (same). The dissent nonetheless advocates the “significant gains” in athletic opportunities for female college

“deliberate indifference” of Franklin, Gebser, and Davis; and students,

criticizes the discriminatory animus standard as

“overdemanding,” “near[ly] insurmountable,” and these gains still leave girls and women without their fair

“antithetical to the remedial purposes of Title IX.” share of opportunities to compete. Only 9 percent of

Division I colleges provide athletic opportunities for

We can envision various scenarios in which the women within 5 percentage points of women’s share of

discriminatory animus and deliberate indifference tests might enrollment. Even among Division I schools that do not

help establish “intent” 4under Title IX when a facially neutral sponsor football, only 16 percent even come close to

policy is challenged. However, because of Plaintiffs’ providing women with athletic opportunities in

proportion to women’s enrollment in the student body.

4

For example, a deliberate indifference test might be appropriate National Women's Law Center, Title IX at 25: Report Card

when Plaintiffs claim that defendant school officials had actual on Gender Equity (1997). This study gave educational

knowledge of the disparate impact of their policies, either at the time of institutions an overall grade of “C” for Title IX compliance in

enactment or when subsequently brought to their attention post- athletic programs. Id.

enactment, and turn a blind eye. We can also perceive school officials

adopting a policy simply because of gender bias, without empirical Despite these recent statistics, I am not aware of any Title

evidence of disparate effect. In this situation, we do not think that the

deliberate indifference test works, because it would be difficult for IX athletic-equality case in which the plaintiff could have met

Plaintiffs to prove actual knowledge of disparate impact. The the overdemanding “animus” standard of intentional

discriminatory animus test, albeit a stricter standard, might help Plaintiffs discrimination. As explained above, gender inequities in

30 Horner, et al. v. Kentucky High No. 97-6264 No. 97-6264 Horner, et al. v. Kentucky High 15

Sch. Athletic Ass’n, et al. Sch. Athletic Ass’n, et al.

available remedies in Title IX cases. See Franklin, 503 U.S. fundamental failure to establish a violation of Title IX, let

at 72. Indeed, in 1986, Congress even abrogated the states’ alone an intentional violation,5 we need not adopt any test at

Eleventh Amendment immunity in Title IX cases. See id. this time. This brings us to Plaintiffs’ second contention.

Thus, the remaining question is whether an award of damages

to Plaintiffs in this case would frustrate the purposes of Title 2. Plaintiffs’ Proofs

IX.

In holding that Plaintiffs’s Title IX claim for compensatory

In dicta, the majority appears to agree with Defendants’ damages failed for lack of proof of intentional discrimination,

argument that the “discriminatory animus” standard is the district court held that:

appropriate here. The Supreme Court has defined a

discriminatory animus towards women as having “a purpose It is clear, as a matter of the law of the case, that there

that focuses upon women by reason of their sex . . . directed was no intentional discrimination by defendants in this

specifically at women as a class.” Bray v. Alexandria case. Horner v. Kentucky High School Ass’n., 43 F.3d

Women’s Health Clinic, 506 U.S. 263, 269-70 (1993). I 265, 276 (6th Cir. 1994).3

believe that, short of a defendant actually defying a court

injunction, the “animus” standard will almost never be met in [FN]3 The Sixth Circuit determined that plaintiffs

a Title IX athletic-equity case. Cf. Guardians Ass’n v. Civil failed to offer sufficient evidence on the issue of

Serv. Comm’n of New York City, 463 U.S. 582, 632 (1983) intentional discrimination to defeat defendants’

(Marshall, J., dissenting).

The excuses for not maintaining gender equity in scholastic establish the requisite intent.

athletic programs are all too familiar. School administrators

usually justify differences in athletic opportunities between Recently, the Fifth Circuit held that the deliberate indifference test

applied in Title IX sexual harassment cases “ha[s] little relevance” in

the sexes because of a misperceived lack of interest or ability determining whether an academic institution intentionally discriminated

among female athletes, or because of a belief that altering the on the basis of sex by failing to accommodate female athletes. See

status quo in athletic programs is not worth the inconvenience Pederson v. Louisiana State Univ., ___ F.3d ___, Nos. 94-3068, 95-

or expense. See generally Cook v. Colgate Univ., 802 F. 30777, 96-30310, 97-30427, 97-30719, 2000 WL 19350, at * 21 (5th Cir.,

Supp. 737, 746-50 (N.D. N.Y. 1992) (addressing various Jan. 27, 2000). According to Pederson, “[t]he proper test is not whether

[the school district] knew of or is responsible for the actions of others, but

defenses for college’s failure to grant varsity status to whether [the school district] intended to treat women differently on the

women’s hockey team), vacated as moot, 992 F. 2d 17 (2d basis of their sex by providing them unequal athletic opportunity.” Id. As

Cir. 1993); Daniels v. School Bd. of Brevard Co., Fla., 995 F. the Pederson court observed, classifications based on “archaic”

Supp. 1394, 1395 (M.D. Fla. 1997) (school board argued that assumptions are facially discriminating, and “actions resulting from an

it was too expensive to remedy existing inequities between application of these attitudes constitutes intentional discrimination.” Id.

at * 20. However, as discussed, this case offers no proof of intentional

softball and baseball programs); Pederson v. Louisiana State discrimination.

Univ., 912 F. Supp. 892, 918 (M.D. La. 1996) (Title IX

violations were “result of arrogant ignorance, confusion 5

For this reason, we disagree with the dissent’s contention that “[a]n

regarding the practical requirements of the law, and a answer to [the] question [of whether the district court correctly concluded

remarkably outdated view of women and athletics which that the plaintiffs produced no evidence of “intentional discrimination”]

created the by-product of resistance to change”). will depend entirely on the definition of ‘intentional discrimination’

within the meaning of Title IX.”

16 Horner, et al. v. Kentucky High No. 97-6264 No. 97-6264 Horner, et al. v. Kentucky High 29

Sch. Athletic Ass’n, et al. Sch. Athletic Ass’n, et al.

motion for summary judgment on the Equal Chicago, 441 U.S. 667, 696 (1979) (“The drafters of Title IX

Protection Claim. Plaintiffs have not offered any explicitly assumed that it would be interpreted and applied as

additional evidence regarding intentional Title VI had been during the preceding eight years.”). The

discrimination since the case was remanded from the Supreme Court has observed that the primary purposes of

Sixth Circuit. Title IX were (1) “to avoid the use of federal resources to

support discriminatory practices;” and (2) “to provide

(J.A. 340.)6 Plaintiffs contend that this ruling is wrong individual citizens effective protection against these

because the Horner I panel’s ruling pertained only to their practices.” Gebser v. Lago Vista Indep. Sch. Dist., 118 S.Ct.

Equal Protection Claim; and furthermore, that the Sixth 1989, 1997 (1998); see also Haffer v. Temple Univ., 524 F.

Circuit explicitly held that Plaintiffs had made their prima Supp. 531, 533 (E.D. Pa. 1981) (Title IX was intended to

facie case under Title IX. provide “the essential guarantees of equal opportunity in

education for men and women”) (quoting 118 Cong. Rec.

Plaintiffs are correct that the ruling in Horner I regarding 5808 (1972) (remarks of Sen. Birch Bayh)). There is also no

intentional discrimination pertained only to their equal doubt that Congress fully intended Title IX to mandate gender

protection claim. Thus, the district court was technically equity in scholastic athletic programs. See id. at 534-36

incorrect in holding that the original panel’s decision was (recounting legislative history and subsequent defeat of

“law of the case” as to Plaintiffs’ Title IX claim. Given the various measures that would have limited Title IX’s impact

Horner I panel’s holding that there were genuine issues of on athletic programs); see also 34 C.F.R. § 106.41(c)

fact regarding a Title IX violation in the first place, a ruling (recipients of federal funds must generally provide equality of

that there was no evidence of intentional discrimination under athletic opportunity to students of both sexes); Yellow Springs

Title IX would have been premature. This, however, brings Bd. of Ed. v. Ohio High School Athletic Ass’n, 647 F.2d 651,

660-61 (6th Cir. 1981) (Jones, J., concurring in part and

dissenting in part). Finally, the Supreme Court has recognized

6

In the first appeal of this case, this Court, relying on Personnel

that Title IX was enacted pursuant to Congress’s spending

Administrator v. Feeney, 442 U.S. 256 (1979), recognized that power. See Davis, 119 S.Ct. at 1669-70; Franklin, 503 U.S.

discriminatory intent requires a showing that the challenged policy was at 74. By agreeing to accept federal funds, Defendants

adopted “because of, not merely in spite of, its adverse impact on persons essentially contracted with the federal government that they

in the . . . class.” Horner, 43 F.3d at 276 (citing Feeney, 442 U.S. at 279) would not discriminate on the basis of gender in athletics.

(emphasis added). See Gebser, 118 S.Ct. at 1997.

Applying this rule, the Horner I panel ruled that:

Plaintiffs did not allege that defendants adopted or adhered An implied cause of action exists under Title IX. See

to the 25 percent rule because of rather than in spite of its Davis, 119 S.Ct. at 1669; Gebser, 118 S.Ct. at 1996; Cannon,

disparate impact on females. Nor did they come forward with 441 U.S. at 717. As noted supra, courts are generally free to

evidence of discriminatory intent, such as a tainted historical “make good on the wrong done” when federal rights have

background of the rule, or a circumstantially suspicious been infringed, subject to only two constraints. Courts are

sequence of events leading up to the rule. In short, plaintiffs

claimed only that sheer disparate impact was sufficient to limited in granting relief when (1) Congressional intent is to

demonstrate an equal protection violation. This simply was not the contrary, or (2) the purposes of carrying out the statute

enough to defeat the defendants' motion for summary judgment. would be frustrated. See Gebser, 118 S.Ct. at 1996. It is

well-accepted that Congress did not intend to limit the

Id. (internal citation omitted).

28 Horner, et al. v. Kentucky High No. 97-6264 No. 97-6264 Horner, et al. v. Kentucky High 17

Sch. Athletic Ass’n, et al. Sch. Athletic Ass’n, et al.

wrongly concluded that Defendants are entitled to summary us to Plaintiffs’ contention that our previous decision found

judgment on monetary damages. To the contrary, Plaintiffs that they had stated a prima facie case under Title IX. That is

must be afforded an opportunity to meet the Davis standard not correct, as an examination of our original decision reveals.

below.

Initially, Horner I discussed the analysis to be used in

II. determining whether Defendants had complied with Title

IX’s equal opportunity mandate.7 The Horner I panel noted

The starting point for our analysis should be the seminal that the regulations implementing the statute’s

decision of Bell v. Hood, 327 U.S. 678 (1946) in which the nondiscriminatory requirements “do not impose an

Supreme Court stated the oft-repeated principle that independent requirement that an institution always sponsor

separate teams for each sport it sanctions.” Id. at 273 (citing

where federally protected rights have been invaded, it has 34 C.F.R. § 106.41(b)). The panel also noted that “the

been the rule from the beginning that courts will be alert regulations do require that institutions provide gender-blind

to adjust their remedies so as to grant the necessary relief. equality of athletic opportunity to its students.” Id. (citing 34

And it is also well settled that where legal rights have C.F.R. § 106.41(c)). This requires an evaluation of several

been invaded, and a federal statute provides for a general factors, including “‘[w]hether the selection of sports and

right to sue for such invasion, federal courts may use any levels of competition effectively accommodate the interests

available remedy to make good the wrong done. and abilities of members of both sexes[.]’” Id. (quoting 34

C.F.R. § 106.41(c)(1)).

Id. at 684 (footnotes omitted); see also Franklin v. Gwinnett

Co. Pub. Schs., 503 U.S. 60, 70-71 (1992) (“[A]bsent clear In making this assessment, the Horner I panel deferred to

direction to the contrary by Congress, the federal courts have the Department of Health, Education, and Welfare’s Policy

the power to award any appropriate relief in a cognizable Interpretation of 1979. See id. To satisfy the effective

cause of action brought pursuant to a federal statute”); Justice accommodation requirement of 34 C.F.R. § 106.41(c)(1), “an

v. Pendleton Place Apartments, 40 F.3d 139, 143 (6th Cir. institution must effectively accommodate the interests of both

1994) (stating that the burden is on the defendant to sexes in both the selection of the sports and the levels of

demonstrate that Congress did not intend requested relief). competition, to the extent necessary to provide equal athletic

opportunity.” Id. (citing Policy Interpretation, Section

The majority opinion is replete with references to Title IX, VII.C.1., 44 Fed. Reg. at 71,417) (emphasis added).

but nowhere does it examine closely the statute’s provisions.

I submit that to engage in a proper analysis, we must look to Regarding the interests of the students, Horner I noted that

the Act itself. The pertinent language of Title IX states: “No “the Policy Interpretation instructs that the methods chosen by

person in the United States shall, on the basis of sex, be the institution must be nondiscriminatory and must not

excluded from participation in, be denied the benefits of, or disadvantage members of an underrepresented sex.” Id.

be subjected to discrimination under any education program

or activity receiving Federal financial assistance[.]” 20

U.S.C. § 1681(a). When Title IX was enacted in 1972, it was 7

Title IX provides that “[n]o person in the United States shall, on the

patterned after Title VI of the Civil Rights Act of 1964, 42 basis of sex, be excluded from participation in, be denied the benefits of,

U.S.C. § 2000d et seq., which banned racial discrimination in or be subjected to discrimination under any education program or activity

federally funded programs. See Cannon v. University of receiving Federal financial assistance[.]” 20 U.S.C. § 1681(a).

18 Horner, et al. v. Kentucky High No. 97-6264 No. 97-6264 Horner, et al. v. Kentucky High 27

Sch. Athletic Ass’n, et al. Sch. Athletic Ass’n, et al.

(citing Policy Interpretation, Section VII.C.3., 44 Fed. Reg. at standing with the college’s admissions department by

71,417). The court held: designating the applicant as a “recruit.” Plaintiffs theorized

that college softball coaches were reluctant to allocate

The district court found that plaintiffs have an valuable scholarship monies, or otherwise devote recruiting

unrestricted opportunity to compete based upon the efforts to Kentucky high school softball prospects, because

interests of the member schools. However, the interests Kentucky’s softball players were untested and unproven in the

of the member schools is not necessarily identical with fast-pitch game. Kentucky’s high school baseball players, of

that of the students, a question on which the record is course, faced no such impediments.

completely silent. At best, the record reflects that 17

percent of the member schools were interested in having Recently, a district court observed in a similar case that

fast-pitch softball sanctioned. The interest of female “[f]or too long, the girls’ softball team has been denied

students at other schools is unknown, because there is no athletic opportunity equal to the boys' baseball team.”

information regarding whether the member schools Daniels v. School Bd. of Brevard Co., Fla., 985 F. Supp.

polled their students before responding, or failing to 1458, 1462 (M.D. Fla. 1997). The primary issue in this

respond, to the KHSAA’s survey. appeal is whether the district court correctly concluded that

Plaintiffs produced no evidence of “intentional

Id. (emphasis added). discrimination” as a predicate for an award of compensatory

damages. An answer to this question will depend entirely on

Regarding the selection of sports, the Horner I panel noted the definition of “intentional discrimination” under Title IX.

that Title IX Plaintiffs must establish that: Plaintiffs urge us to apply a “knowledge” or a “deliberate

indifference” standard for “intentional” violations of Title IX.

(1) The opportunities for members of the excluded sex Plaintiffs contend that so long as Defendants were aware of

have historically been limited; the discriminatory effect of their failure to sanction fast-pitch

(2) There is sufficient interest and ability among the softball, but nevertheless failed to modify their bylaws to

members of the excluded sex to sustain a viable team and comply with Title IX’s mandates, then they “intentionally”

a reasonable expectation of intercollegiate competition violated Title IX. Defendants counter that “intentional

for that team; and discrimination” under Title IX requires a finding of

(3) Members of the excluded sex do not possess “discriminatory animus” against Plaintiffs’ gender.

sufficient skill to be selected for a single integrated team,

or to compete actively on such team if selected. The majority suggests in dicta that Defendants are likely

correct in their choice of standard, but holds that Plaintiffs

Id. at 274 (quoting Policy Interpretation, Section VII.C.4.b., lose as a matter of law in either case. I disagree with both

44 Fed. Reg. at 71,418). conclusions. First, the Supreme Court has determined that a

“deliberate indifference” standard governs whether Title IX

Regarding these factors, the Horner I panel held that there is intentionally violated. See Davis v. Monroe Co. Bd. of Ed.,

was record evidence to support the first requirement, but not 119 S.Ct. 1661, 1675 (1999). Further, because the magistrate

the second or third: court clearly misread the holding of Horner I, and because I

believe the majority essentially rewrites that decision through

With respect to subsection (1), there is evidence in the its reasoning in this case, the majority has, in my judgment,

record that the opportunities for girls were, and are, more

26 Horner, et al. v. Kentucky High No. 97-6264 No. 97-6264 Horner, et al. v. Kentucky High 19

Sch. Athletic Ass’n, et al. Sch. Athletic Ass’n, et al.

__________________ limited than those for boys. With respect to subsection

(2), the level of interest of all high school girls in fast-

DISSENT pitch softball is unknown. With respect to subsection (3),

__________________ the record reflects only that girls are not prohibited from

playing on the boys’ baseball teams. The record does not

NATHANIEL R. JONES, Circuit Judge, dissenting. The disclose whether and to what extent girls actually play.

majority finds it unnecessary to remand this case despite the

magistrate court’s clear error in applying this Court’s holding Id. at 274 (emphasis added). Thus, contrary to Plaintiffs’

in Horner I. The majority also suggests in dicta that we use assertions on appeal, this court did not hold in Horner I that

a discriminatory animus standard, rather than a deliberate Plaintiffs had met their initial burden.

indifference standard, in assessing the deprivation of

educational opportunities to Kentucky’s female high school The panel also set forth the factors in the Policy

softball players. In my view, Supreme Court precedent Interpretation to assess an institution’s effective

clearly dictates that we use a deliberate indifference standard accommodation of the students’ interest in the selection of the

in assessing Plaintiffs’ claim. I also believe that Plaintiffs levels of competition:

should be afforded the opportunity to meet this deliberate

indifference standard below--an opportunity of which they (1) Whether the intercollegiate level participation

were deprived by the magistrate court’s misreading of this opportunities for males and female students are provided

Court’s decision in Horner I. Accordingly, I respectfully in numbers substantially proportionate to their respective

dissent. enrollments; or

(2) Where the numbers of one sex have been and are

I. underrepresented among intercollegiate athletes, whether

the institution can show a history and continuing practice

We have already delineated the contours of this lawsuit in of program expansion which is demonstrably responsive

a previous decision. Although defendant Kentucky High to the developing interest and abilities of the members of

School Athletic Association (“Association”) sanctions boys’ that sex;

baseball, it did not recognize “fast-pitch” softball--the (3) Where the members of one sex are underrepresented

practical equivalent of baseball for female athletes--prior to among intercollegiate athletes, and the institution cannot

the filing of this lawsuit. See Horner v. Kentucky High Sch. show a continuing practice of program expansion such as

Athletic Ass’n, 43 F.3d 265, 269 (6th Cir. 1994). The essence that cited above, whether it can be demonstrated that the

of Plaintiffs’ complaint was that because of Defendants’ interests and abilities of the members of that sex have

failure to recognize fast-pitch competition in Kentucky high been fully and effectively accommodated by the present

schools, Kentucky’s female high school softball players were program.

at a disadvantage in competing for the collegiate benefits and

opportunities enjoyed by Kentucky’s male high school Id. (quoting Policy Interpretation, Section VII.C.5.a, 44 Fed.

baseball players. For example, a significant number of Reg. at 71,418).

colleges offer financial assistance in the form of athletic

scholarships for softball players. See id. Moreover, it seems Regarding these factors, the original panel noted that:

a given that many college coaches can improve an applicant’s

20 Horner, et al. v. Kentucky High No. 97-6264 No. 97-6264 Horner, et al. v. Kentucky High 25

Sch. Athletic Ass’n, et al. Sch. Athletic Ass’n, et al.

The plaintiffs bear the burden of proof on subsection and it is not properly before this Court. See USA Petroleum

(1), that of showing statistical disparity.[FN8] Roberts, Co. v. Atlantic Richfield. 13 F.3d 1276, 1284 (9th Cir. 1994).

998 F.2d at 828; Cohen, 991 F.2d at 901. Substantial

proportionality provides a safe harbor for recipients of In short, Plaintiffs have not shown that they are prevailing

federal funds. . . . If the plaintiffs prove disparity, then parties because they did not obtain an enforceable judgment,

the institution must show that it satisfies subsection (2). an injunction, a declaratory judgment, or a consent decree

If it fails here, the plaintiffs may prevail by sustaining altering the legal relationship between them and Defendants.

their burden of proof under subsection (3) and Further, based on the record, Plaintiffs have not demonstrated

demonstrating an unmet interest on the part of the that their lawsuit was an important and necessary factor in

underrepresented sex. Roberts, 998 F.2d at 830-31; changing the law.

Cohen, 991 F.2d at 901. Subsection (3) “‘sets a high

standard: it demands not merely some accommodation, III. CONCLUSION

but full and effective accommodation. If there is

sufficient interest and ability among members of the Accordingly, the judgment of the district court is

statistically underrepresented gender, not slaked by AFFIRMED.

existing programs, an institution necessarily fails this

prong of the test.’” Roberts, 998 F.2d at 831-32 (quoting

Cohen, 991 F.2d at 898).

FN8. Although the record is silent on this point, the

court was informed at oral argument that 33,891

boys (65 percent) participate in sanctioned sports in

Kentucky, while only 18,860 girls (34.8) percent

participate.

Id. at 275 (emphasis added). We therefore concluded that:

It is evident that genuine issues of material fact abound

in this case, and preclude any determination that

defendants have complied with Title IX’s equal

opportunity mandate. We therefore reverse the district

court’s entry of summary judgment on plaintiffs’ Title IX

claims.

Id. Again, the Horner I panel did not hold that Plaintiffs had

met their burden under Rule 56 of the Federal Rules of Civil

Procedure. In fact, we specifically noted that the record was

silent on statistical disparity. The only proof Plaintiffs offered

on remand was that of statistical disparity, in support of their

24 Horner, et al. v. Kentucky High No. 97-6264 No. 97-6264 Horner, et al. v. Kentucky High 21

Sch. Athletic Ass’n, et al. Sch. Athletic Ass’n, et al.

the denial of a motion for attorneys’ fees for an abuse of statements at oral argument. Plaintiffs offered no proof on

discretion. See Jones v. Continental Corp., 789 F.2d 1225, remand that their interests were not being met, despite the

1229 (6th Cir. 1986). policy allowing them to play on boys’ fast-pitch softball

teams. As the dissent in Horner I observed: “Title IX, when

To recover attorneys’ fees under 42 U.S.C. § 1988, a party read with the implementing regulation and the policy

must be a prevailing party. To be a prevailing party, a party interpretation, places the burden of proving statistical

must receive at least some relief on the merits of his claim disparity and unmet interest squarely on the shoulders of the

such as a judgment, an injunction, or a consent decree. See plaintiffs.” Id. at 277 (Batchelder, J., dissenting) (citing

Hewitt v. Helms, 482 U.S. 755, 760-61 (1987). Roberts v. Colorado State Bd. of Agric., 998 F.2d 824, 829

n.5 (10th Cir. 1993); Cohen v. Brown Univ., 991 F.2d 888,

Plaintiffs claim that Defendants changed their policies and 901-01 (1st Cir. 1993)).

practices because of their lawsuit. The District Court,

however, found no evidence for this claim. The record In sum, the Horner I panel did not hold that Plaintiffs made

reflects that Defendants changed their policies only after the out a prima facie case of a Title IX violation, but merely held

Kentucky General Assembly amended Ky. Rev. Stat. that Plaintiffs had established the first requirement of their

§ 156.070, directing Defendants to promulgate regulations to prima facie case. Notably, the Horner I panel specifically

provide fast-pitch softball. Plaintiffs offered no record advised Plaintiffs of the proof necessary to prevail on their

evidence that their lawsuit caused the Kentucky General Title IX claim, and granted a remand for further development

Assembly to amend Ky. Rev. Stat. § 156.070. The district of the record. Notwithstanding, upon renewed motions for

court’s finding that Plaintiffs were not prevailing parties is, summary judgment by Defendants, other than proof of

therefore, not clearly erroneous. statistical disparity, Plaintiffs still failed to offer any

additional evidence that Title IX’s equal opportunity mandate

Nevertheless, a plaintiff who is not a prevailing party under had been violated, let alone intentionally violated. Absent a

§ 1988, may also recover attorneys' fees if the lawsuit was the predicate violation, it is axiomatic that there can be no

primary “catalyst” for causing a defendant to change its intentional violation of Title IX. Thus, in the language of the

conduct favorably toward the plaintiff. See Payne, 88 F.3d at dissent, there can be no “actual notice” and “deliberate

397. The catalyst theory applies a two-part test. First, the indifference” to Plaintiffs’ unmet interest. We therefore

plaintiff's lawsuit must be a necessary and important factor in affirm the district court’s grant of summary judgment,

achieving the relief sought. Second, the plaintiff must prove although on slightly different grounds.

that the changed conduct was required because of a violation

of the law. See id. at 397-98. Nevertheless, even if we assumed that Plaintiffs had

established their prima facie case, we would still hold that

Plaintiffs have not demonstrated that their lawsuit was a they failed to establish an intentional violation. Certainly, on

necessary and important factor in changing the twenty-five this record, there is no evidence of discriminatory animus.

percent rule. Plaintiffs offer an affidavit from a member of See Bray v. Alexandria Women’s Health Clinic, 506 U.S. 263,

the Kentucky General Assembly stating that Plaintiffs’ 269-70 (1993) (defining discriminatory animus towards

counsel advised her on amending Ky. Rev. Stat. § 156.070. women in an action under 42 U.S.C. § 1885(3) as having “a

However, Plaintiffs did not enter this affidavit into the record purpose that focuses upon women by reason of their sex . . .

directed specifically at a women as a class”); Feeney, 442

22 Horner, et al. v. Kentucky High No. 97-6264 No. 97-6264 Horner, et al. v. Kentucky High 23

Sch. Athletic Ass’n, et al. Sch. Athletic Ass’n, et al.

U.S. at 279 (stating in the equal protection context that on account of an imbalance which may exist with respect to

“‘discriminatory purpose’ . . . implies more than intent as the total number or percentage of persons of that sex

volition or intent as awareness of consequences”). Plaintiffs participating in or receiving the benefits of federally

offered no evidence of discriminatory intent.8 Nor is there any supported program or activity, in comparison with the total

proof under the dissent’s proposed standard. Plaintiffs have number or percentage of persons of that sex in any

simply not established that Defendants had actual knowledge community, State, section, or other area”); Roberts, 998 F.2d

of the discriminatory effect of their facially neutral rule, yet at 829 n.5. Further, in certain instances, separate teams for

failed to remedy the violation. In any event, Plaintiffs’ and males and females are allowed. See 34 C.F.R. § 106.41(b)

the dissent’s position is really a “constructive” notice (1998) (permitting separate sports teams for males and

argument under the guise of the deliberate indifference test: females where selection for the team is based on competitive

Because there was a boys’ fast-pitch softball team and not a skill or is a contact sport). As we pointed out in Horner I, the

girls’ fast-pitch softball team, Defendants must have known regulations themselves do not impose an independent

that they were treating girls differently than boys; Defendants, requirement that an institution always sponsor separate teams

as federal funding recipients, are charged with notice of the for all sanctioned sports. See Horner I, 43 F.3d at 273 (citing

Title IX law, which prohibits gender discrimination; 34 C.F.R. § 106.41(b)). Thus, it would be impossible for

Defendants were therefore in knowing violation of Title IX. Defendants to be on notice that they were in violation of Title

IX simply because they sponsored only boys’ fast-pitch

This reasoning is flawed because it reads Title IX as softball. Finally, it is undisputed that Defendants permit

requiring perfect parity. However, as just discussed, all the female athletes to try out for traditional male sports, including

statute and implementing regulations require is equality of contact sports. Absent any evidence that this opportunity did

athletic opportunity. The statute itself does not require gender not adequately meet girls’ needs and abilities, there can be no

balance. See 20 U.S.C.A. §1681(b)(West 1990) (providing finding that Defendants knowingly violated Plaintiffs’ Title

that “[n]othing contained in subsection (a) of this section shall IX rights.

be interpreted to require any educational institution to grant

preferential or disparate treatment to the members of one sex 3. Gender Classification

For the first time on appeal, Plaintiffs argue that Defendants

8 violated Title IX because the KHSAA classifies its sports by

As we noted in the equal protection context in Horner I: gender. For the reasons stated, classification by gender is not

Determining whether invidious discriminatory purpose was a a per se violation of Title IX. In any event, the claim is

motivating factor demands a sensitive inquiry into such

circumstantial and direct evidence of intent as may be available. forfeited.

The impact of the official action – whether it “bears more

heavily on one race than another,” – may provide an important B. Attorneys' Fees

starting point. Sometimes a clear pattern, unexplainable on

grounds other than race, emerges from the effect of the state Plaintiffs also claim that they are prevailing parties for

action even though the governing legislation appears neutral on purposes of awarding attorneys’ fees. This Court reviews the

its fact. The evidentiary inquiry is then relatively easy. But such factual determination that a party is a prevailing party for

cases are rare.

clear error. See Payne v. Board of Educ., Cleveland City

Horner I, 43 F.3d at 276 (quoting Village of Arlington Heights Schools, 88 F.3d 392, 397 (6th Cir. 1996). This Court reviews

Metropolitan Hous. Dev.Corp., 429 U.S. 252, 266 (1977)).