Opinion

Cherry, Kelly v. Univ WI System

Court: Court of Appeals for the Seventh Circuit
Filed: Sep 7, 2001
Status: Published
On the bench: Per Curiam
Nature of suit: civil
Cited by: 0 cases
Authority: More cited than 39.7%

"Congress’ failure to mention States in its legislative findings addressing discrimination in employment reflects that body’s judgment that no pattern of unconstitutional state action had been documented."

How later courts described this case

"Congress’ failure to mention States in its legislative findings addressing discrimination in employment reflects that body’s judgment that no pattern of unconstitutional state action had been documented."
the Americans with Disabilities Act ("ADA") imposes restrictions that far exceed those of the Fourteenth Amendment’s Equal Protection Clause
RFRA’s legislative record lacks examples of modern instances of generally applicable laws passed because of religious bigotry
the restrictions of the Religious Freedom Restoration Act ("RFRA") far exceed any pattern or practice of unconstitutional conduct by the States under the Free Exercise Clause

Written by the judges who cited it.

The opinion

In the

United States Court of Appeals

For the Seventh Circuit

No. 00-2435

Kelly Cherry,

Plaintiff-Appellee,

University of Wisconsin System

Board of Regents,

Defendant-Appellant.

Appeal from the United States District Court

for the Western District of Wisconsin.

No. 00 C 142--John C. Shabaz, Judge.

Argued January 18, 2001--Decided September 7, 2001

Before Bauer, Manion, and Diane P. Wood,

Circuit Judges.

Manion, Circuit Judge. Kelly Cherry sued

her former employer, the Board of Regents

of the University of Wisconsin System,

alleging that the Board paid her at a

lower rate of compensation than her male

colleagues because of her sex, in

violation of the Equal Pay Act and Title

IX. The Board moved to dismiss, alleging

that the Eleventh Amendment bars Cherry’s

claims. The district court denied the

motion, and the Board appealed. We

affirm.

Professor Kelly Cherry taught in the

English Department at the University of

Wisconsin-Madison from 1977 to 1999. The

Board of Regents of the University of

Wisconsin System ("the Board") is a State

entity that oversees the University of

Wisconsin-Madison, which is a State

educational institution and recipient of

Title IX funds from the federal

government. Cherry was a tenured

professor at the University of Wisconsin-

Madison until she resigned on August 22,

1999.

After her resignation, Cherry sued the

Board, alleging that her salary "remained

significantly lower" than that of her

male colleagues with similar credentials,

and thus, over a number of years, she

"was subjected to sex discrimination on

the basis of salary" in violation of the

Equal Pay Act ("EPA"), 29 U.S.C. sec.

206(d), and Title IX of the Education

Amendments of 1972, 20 U.S.C. sec. 1681.

Cherry sought compensatory and punitive

damages in her Amended Complaint. The

Board moved to dismiss Cherry’s Amended

Complaint, arguing that: (1) Title VII is

Cherry’s sole avenue for her claims, and

thus it precludes her EPA and Title IX

claims;/1 (2) Cherry fails to state a

Title IX claim; (3) the Eleventh

Amendment bars the EPA and Title IX

claims; and (4) the Board is immune from

any punitive damages award under Title

IX. The district court denied the Board’s

motion, rejecting all of the Board’s

arguments. The Board appealed.

II.

In this collateral order appeal, the

Board reasserts all of the arguments that

it raised in its motion to dismiss. Under

28 U.S.C. sec. 1291, we have jurisdiction

over appeals from "’final decisions’ of

the district courts." Furnace v. Board of

Trustees of Southern Illinois University,

218 F.3d 666, 669 (7th Cir. 2000)

(quoting 28 U.S.C. sec. 1291). A district

court’s denial of a motion to dismiss is

not a final decision. Lac Courte Oreilles

Band of Lake Superior Chippewa Indians v.

State of Wisconsin, 829 F.2d 601, 602

(7th Cir. 1987). But the collateral order

doctrine is a "narrow exception to the

finality rule." In re Moens, 800 F.2d

173, 175 (7th Cir. 1986). It permits an

appeal from a non-final judgment if three

criteria are met: the order must "(1)

’conclusively determine the disputed

question,’ (2) ’resolve an important

issue completely separate from the merits

of the action,’ and (3) ’be effectively

unreviewable on appeal from a final judg

ment.’" Midland Asphalt Corp. v. United

States, 489 U.S. 794, 799 (1989) (quoting

Coopers & Lybrand v. Livesay, 437 U.S.

463, 468 (1978)); see also Furnace, 218

F.3d at 669 n. 2. The third criterion is

difficult to satisfy, as the Supreme

Court has stressed that the "narrow

exception" of the collateral order appeal

"is limited to trial orders ’affecting

rights that will be irretrievably lost in

the absence of an immediate appeal.’" In

re Moens, 800 F.2d at 176 (quoting

Richardson-Merrell, Inc. v. Koller, 472

U.S. 424, 430-31 (1985)). We must

determine whether the Board’s claims are

immediately appealable without regard to

whether a prompt decision by this court

will resolve the litigation more quickly.

See Digital Equipment Corp. v. Desktop

Direct, Inc., 511 U.S. 863, 868 (1994).

Because the Eleventh Amendment concerns

the Board’s privilege not to be sued,

which is a privilege that would be

irretrievably lost if it were not

immediately appealable, the issue of

immunity from suit is properly raised in

this collateral appeal. Puerto Rico

Aqueduct & Sewer Authority v. Metcalf &

Eddy, Inc., 506 U.S. 139, 146 (1993); see

also id. ("’The very object and purpose

of the 11th Amendment were to prevent the

indignity of subjecting a State to

thecoercive process of judicial tribunals

at the instance of private parties.’"

(quoting In re Ayers, 123 U.S. 443, 505

(1887))). But the additional (non-

immunity) claims asserted by the Board in

support of its motion to dismiss (that

Cherry failed to state a Title IX claim,

and that Title VII precludes Cherry’s EPA

and Title IX claims) are not immediately

appealable because they can be

effectively reviewed on appeal from a

final judgment. See Lac Courte, 829 F.2d

at 602 (a refusal to dismiss a complaint

or part thereof is the classic example of

a nonfinal order that is not appealable

under 28 U.S.C. sec. 1291, either

directly or by invoking the collateral

order rule). After a later final judgment

of the district court, this court may

effectively review the issues of whether

Title VII precludes Cherry’s EPA and

Title IX claims, and whether Cherry

properly failed to state a Title IX

claim. In line with this court’s

reluctance to exercise pendent appellate

jurisdiction over additional issues in a

collateral appeal, we decline to exercise

such jurisdiction in this case. See

United States v. Bloom, 149 F.3d 649, 657

(7th Cir. 1998); see also Swint v.

Chambers County Comm’n, 514 U.S. 35, 49-

50 (1995) (expressing concern that "a

rule loosely allowing pendent appellate

jurisdiction" would encourage parties to

parlay collateral orders into "multi-

issue interlocutory appeal tickets").

We also decline to address the Board’s

claim that it is immune from a punitive

damages award under Title IX. A claim of

immunity to a certain class of damages is

"’far removed’" from a claim of immunity

from litigation. Burns-Vidlak v.

Chandler, 165 F.3d 1257, 1260 (9th Cir.

1999) (quoting Pullman Constr. Indus.,

Inc. v. United States, 23 F.3d 1166, 1169

(7th Cir. 1994)). "[T]he Supreme Court

has made it clear that a potentially

’erroneous ruling on liability may be

reviewed effectively on appeal from final

judgment.’" Burns-Vidlak, 165 F.3d at

1261 (quoting Swint, 514 U.S. at 43). If

punitive damages are permitted to be, and

in fact are assessed against the Board,

this court can certainly review that

issue if it arises from a later final

judgment of the district court. In the

meantime, the Board’s claimed immunity

from a punitive damages award will not be

irretrievably lost if it is not reviewed

in this collateral appeal. See, e.g.,

Moreno v. Consolidated Rail Corp., 99

F.3d 782, 789-92 (6th Cir. 1996) (en

banc) (in affirming a district court’s

denial of a jury’s award of punitive

damages to a plaintiff under sec. 504 of

the Rehabilitation Act, the Sixth Circuit

concluded that sec. 504 does not provide

a punitive damages remedy); see also Rein

v. Socialist People’s Libyan Arab

Jamahiriya, 162 F.3d 748, 762 (2d Cir.

1998). We thus decline to exercise

pendent appellate jurisdiction over this

issue. See Crymes v. Dekalb County,

Georgia, 923 F.2d 1482, 1485 (11th Cir.

1991) (declining to extend pendent

appellate jurisdiction to the "nonfinal"

issue of the district court’s denial of

appellants’ motion to dismiss a punitive

damages claim).

The remaining issues properly raised in

this collateral order appeal are whether

the Eleventh Amendment bars Cherry’s EPA

and Title IX claims. We "review de novo a

district court’s judgment on whether to

dismiss a claim on Eleventh Amendment

immunity grounds." MCI Telecommunications

Corp. v. Illinois Bell Telephone Co., 222

F.3d 323, 337 (7th Cir. 2000).

The Board argues, however, that pursuant

to Vermont Agency of Natural Resources v.

U.S. ex rel. Stevens, 529 U.S. 765

(2000), we should avoid the immunity

issues and dismiss Cherry’s claims "on

non-constitutional grounds." In support

of its contention, the Board claims that

Title VII precludes Cherry’s EPA and

Title IX claims, and thus that we should

dismiss Cherry’s claims on that ground

instead of addressing whether the

Eleventh Amendment bars Cherry’s claims.

In Vermont Agency, the Supreme Court

determined that when a statute provides

no indication that it "permits the cause

of action it creates to be asserted

against States," it is appropriate for

the court to first make that statutory

determination before conducting an

Eleventh Amendment inquiry. Id. at 779;

see Floyd v. Thompson, 227 F.3d 1029,

1035 (7th Cir. 2000). The Court concluded

in Vermont Agency that because the False

Claims Act ("FCA") provides no indication

that States are subject to its penalties,

the Court could resolve the case with

that statutory determination without

considering the issue of immunity. 529

U.S. at 787. But in this case, if it

appears "in any way possible" for Cherry

to sue the State under the EPA and Title

IX, "then Vermont Agency indicates we

should resolve the Eleventh Amendment

issue first." Floyd, 227 F.3d at 1035.

The Board’s argument is unavailing

because unlike the FCA, the EPA and Title

IX permit suits against the States. See

Varner v. Illinois State University, 226

F.3d 927, 930 n. 1 (7th Cir. 2000) (29

U.S.C. sec. 216(b) authorizes private

suits against the States to enforce the

EPA) (citing Kimel v. Florida Board of

Regents, 528 U.S. 62, 73 (2000)); see

also 42 U.S.C. sec. 2000d-7(a)(1) (States

are not immune from suit under Title IX).

Thus, we must resolve the Eleventh Amend

ment issues raised in this appeal. See

Floyd, 227 F.3d at 1035.

A. The EPA Claim

The Board argues that the Eleventh

Amendment bars Cherry’s EPA claim. The

Eleventh Amendment provides:

The Judicial power of the United States

shall not be construed to extend to any

suit in law or equity, commenced or

prosecuted against one of the United

States by Citizens of another State, or

by Citizens or Subjects of any Foreign

State.

U.S. Const. amend. XI. According to the

Amendment, non-consenting States may not

be sued by private individuals in federal

court. Board of Trustees of the

University of Alabama v. Garrett, 531

U.S. 356. 121 S.Ct. 955, 962 (2001). But

this "immunity from suit is not

absolute." College Savings Bank v.

Florida Prepaid Postsecondary Education

Expense Board, 527 U.S. 666, 670 (1999).

The Supreme Court has recognized "that

Congress may abrogate the States’

Eleventh Amendment immunity when it both

unequivocally intends to do so and

’act[s] pursuant to a valid grant of

constitutional authority.’" Garrett, 121

S.Ct. at 962 (quoting Kimel, 528 U.S. at

73). The Court has held that the Eleventh

Amendment is limited by the enforcement

provisions of sec. 5 of the Fourteenth

Amendment, and that Congress may subject

non-consenting States to suit in federal

court pursuant to a valid exercise of its

sec. 5 power. Garrett, 121 S.Ct. at 962.

Accordingly, the EPA can apply to the

States only to the extent that the

statute is appropriate sec. 5

legislation. Id.

The Fourteenth Amendment provides, in

relevant part:

Section 1. . . . No State shall make or

enforce any law which shall abridge the

privileges or immunities of citizens of

the United States; nor shall any State

deprive any person of life, liberty, or

property, without due process of law; nor

deny to any person within its

jurisdiction the equal protection of the

laws.

. . . .

Section 5. The Congress shall have power

to enforce, by appropriate legislation,

the provisions of this article.

U.S. Const. amend. XIV; Kimel, 528 U.S.

at 80. Section 5 grants Congress the

power to "enforce the substantive

guarantees contained in sec. 1 by

enacting ’appropriate legislation.’"

Garrett, 121 S.Ct. at 963. Hence,

Congress determines what legislation is

necessary to secure the guarantees of the

Fourteenth Amendment, and "its

conclusions are entitled to much

deference." City of Boerne v. Flores, 521

U.S. 507, 536 (1997). Pursuant to sec. 5,

Congress has the authority to remedy and

deter violations of rights guaranteed

under the Fourteenth Amendment "’by

prohibiting a somewhat broader swath of

conduct, including that which is not

itself forbidden by the Amendment’s text.’"

Garrett, 121 S.Ct. at 963 (quoting Kimel,

528 U.S. at 81).

Nevertheless, the Supreme Court has also

recognized that sec. 5 grants Congress

the power to enforce the Fourteenth

Amendment, not the power "’to determine

what constitutes a constitutional violation.’"

Kimel, 528 U.S. at 81(quoting City of

Boerne, 521 U.S. at 519). It is the

responsibility of the Supreme Court, not

Congress, to define the substance of

constitutional guarantees. Garrett, 121

S.Ct. at 963. In other words, Congress

can enact legislation to remedy or

prevent conduct that violates the

Fourteenth Amendment, but Congress cannot

redefine or expand the substance of the

Fourteenth Amendment itself. Thus, there

must be a "’congruence and

proportionality between the injury to be

prevented or remedied and the means

adopted to that end.’" Kimel, 528 U.S. at

81 (quoting City of Boerne, 521 U.S. at

520). This means that Congress must

carefully tailor its legislation so that

it enforces the Fourteenth Amendment

without altering the Amendment’s meaning.

But the Court has acknowledged that

because it is "often difficult" to

identify whether a statute "constitutes

appropriate remedial legislation, or

instead effects a substantive

redefinition of the Fourteenth Amendment

right at issue," Kimel, 528 U.S. at 81,

Congress "’must have wide latitude in

determining where [that line] lies.’" Id.

(quoting City of Boerne, 521 U.S. at

520).

In applying the "congruence and

proportionality" test to a federal

statute, the Supreme Court has examined

the scope of the statute to determine

whether it is consistent and compatible

with the Fourteenth Amendment, or whether

it essentially expands the Amendment by

prohibiting more State action than would

be unconstitutional. City of Boerne, 521

U.S. at 532; Florida Prepaid

Postsecondary Education Expense Board v.

College Savings Bank, 527 U.S. 627, 646-

47 (1999); Kimel, 528 U.S. at 86;

Garrett, 121 S.Ct. at 963. The Court has

also considered whether Congress

identified in the legislative record a

pattern of unconstitutional conduct by

the States (that was targeted by the

statute at issue) in order to determine

whether the statute is a proportional

response to unconstitutional State

action. City of Boerne, 521 U.S. at 530;

Florida Prepaid, 527 U.S at 640; see also

Kimel, 528 U.S. at 88; Garrett, 121 S.Ct.

at 964. But the Court has stated that the

lack of support in the legislative record

"is not determinative of the sec. 5

inquiry." Kimel, 528 U.S. at 91; Florida

Prepaid, 527 U.S at 646; see also City of

Boerne, 521 U.S. at 532. Such evidence

tends to ensure that Congress’ means are

appropriate under sec. 5 when the statute

in question pervasively prohibits

constitutional State action. See City of

Boerne, 521 U.S. at 533.

In four recent cases, the Supreme Court

has held that Congress exceeded its sec.

5 enforcement powers. In each case, the

Court found that the statute in question

prohibited substantially more State

action than would be unconstitutional.

See City of Boerne, 521 U.S. at 532-34

(the restrictions of the Religious

Freedom Restoration Act ("RFRA") far

exceed any pattern or practice of

unconstitutional conduct by the States

under the Free Exercise Clause); Florida

Prepaid, 527 U.S at 646-47 (under the

Patent Remedy Act, an unlimited range of

State conduct would expose a State to

claims of patent infringement); Kimel,

528 U.S. at 86 (the Age Discrimination in

Employment Act ("ADEA") prohibits

substantially more state employment

decisions and practices than would likely

be held unconstitutional); Garrett, 121

S.Ct. at 967 (the Americans with

Disabilities Act ("ADA") imposes

restrictions that far exceed those of the

Fourteenth Amendment’s Equal Protection

Clause). The Court also concluded in each

case that Congress had not identified in

the legislative record a pattern of

unconstitutional conduct by the States

that was targeted by the statutes. See

City of Boerne, 521 U.S. at 530 (RFRA’s

legislative record lacks examples of

modern instances of generally applicable

laws passed because of religious

bigotry); Florida Prepaid, 527 U.S. at

640 ("In enacting the Patent Remedy Act,

however, Congress identified no pattern

of patent infringement by the States, let

alone a pattern of constitutional

violations."); Kimel, 528 U.S. at 89 ([In

enacting the ADEA], "Congress never

identified any pattern of age

discrimination by the States, much less

any discrimination whatsoever that rose

to the level of constitutional

violation."); Garrett, 121 S.Ct. at 966

("Congress’ failure to mention States in

its legislative findings addressing

discrimination in employment reflects

that body’s judgment that no pattern of

unconstitutional state action had been

documented.").

In Varner v. Illinois State University,

150 F.3d 706 (7th Cir. 1998) ("Varner

I"), this court affirmed a district

court’s finding that Congress validly

abrogated the States’ Eleventh Amendment

immunity through its passage of the EPA.

On writ of certiorari to the Supreme

Court, the Varner I decision was vacated

and remanded for further consideration in

light of the Court’s intervening decision

in Kimel, in which the Court held that

the ADEA was not a valid exercise of

Congress’ power under sec. 5 of the

Fourteenth Amendment. Kimel, 528 U.S. at

91; Varner v. Illinois State University,

226 F.3d 927, 929 (7th Cir. 2000), cert.

denied, 121 S.Ct. 2241 (2001) ("Varner

II"). After considering Kimel, this court

issued Varner II in which it upheld the

holding of Varner I that Congress validly

abrogated the States’ immunity from EPA

claims. Varner II, 226 F.3d at 937.

Subsequent to Varner II, the Supreme

Court issued Board of Trustees of the

University of Alabama v. Garrett, 121

S.Ct. 955 (2001), in which the Court held

that Congress failed to validly abrogate

the States’ immunity from claims under

the ADA./2 In support of the Board’s

immunity claim, it argues that Garrett

conflicts with Varner II, and thus that

the Eleventh Amendment bars Cherry’s EPA

claim.

In Varner II, this court first noted

that the Equal Pay Act "prohibits

discrimination in wages based on gender,"

226 F.3d at 932, and that a plaintiff may

establish a prima facie case under the

EPA by demonstrating that she received

"unequal pay for ’equal work on jobs the

performance of which requires equal

skill, effort, and responsibility, and

which are performed under similar working

conditions.’" Id. (quoting 29 U.S.C. sec.

206(d)(1)). Thus, an employee may

establish a prima facie case of gender

discrimination under the EPA without

showing discriminatory intent. Varner II,

226 F.3d at 932. In that sense (the court

acknowledged in Varner II) the EPA is

unlike the Fourteenth Amendment, which

requires a showing of the employer’s

discriminatory intent, and thus the EPA

does "not perfectly mirror the

Constitution’s prohibition on gender

discrimination." Id. But the court also

noted that once an employee has met her

burden of showing unequal pay for equal

work, an employer may avoid liability

under the Act by proving that the wage

disparity exists pursuant to "’a

differential based on any other factor

other than sex.’" Id. (quoting 29 U.S.C.

sec. 206(d)(1)). Because the EPA allows

an employer to avoid liability under the

Act by proving that the wage disparity in

question exists pursuant to "any other

factor other than sex," Varner II

emphasized that the EPA provides a broad

exemption from liability for any employer

who can provide a neutral explanation for

a disparity in pay. 226 F.3d at 934.

Thus, the court concluded that the scope

of the EPA is congruent to the Fourteenth

Amendment because, like the Fourteenth

Amendment, the EPA effectively targets

only "employers who intentionally

discriminate against women." Id.

The court also stressed in Varner II an

important difference between the ADEA and

the EPA. The court noted that in Kimel,

the Supreme Court recognized that the

ADEA targets age-based classifications

which, according to the Court’s Equal

Protection jurisprudence, are subject to

the minimal "rational basis review"

standard. Varner II, 226 F.3d at 934;

Kimel, 528 U.S. at 84. According to that

standard, a State may discriminate on the

basis of age without offending the

Fourteenth Amendment if the age

classification is rationally related to a

legitimate State interest. Kimel, 528

U.S. at 84. Thus, the Constitution

permits States to pursue a broad range of

policies that discriminate on the basis

of age as long as such policies are

reasonably related to a legitimate

government purpose. See id. at 83-85. But

unlike the ADEA, the EPA targets gender-

based classifications which are "afforded

heightened scrutiny," which means that

they are presumed to be unconstitutional

unless the State can demonstrate "an

exceedingly persuasive justification" for

them. Varner II, 226 F.3d at 934. As the

Supreme Court recognized in Kimel, in

comparison with classifications subject

to rational basis review, "when a State

discriminates on the basis of race or

gender, we require a tighter fit between

the discriminatory means and the

legitimate ends they serve." 528 U.S. at

84. Thus, Varner II recognized that while

the ADEA prohibits substantially more

State employment practices than those

prohibited by the Constitution, the EPA

"prohibits very little constitutional

conduct." Id. at 935.

The defendants in Varner II argued that

because the EPA lacks legislative

findings of a pattern of unconstitutional

State action, abrogation is not

justified. Id. The court acknowledged

that although a review of the legislative

record can be instructive, a lack of

support in the record "is not

determinative of the sec. 5 inquiry." Id.

(quoting Kimel, 528 U.S. at 91). This,

the court noted, is especially true with

the EPA, "where the value of

congressional findings is greatly

diminished by the fact that the Act

prohibits very little constitutional

conduct," and where "the historical

record clearly demonstrates that gender

discrimination is a problem that is

national in scope." Varner II, 226 F.3d

at 935. Thus, while the EPA "is devoid of

any explicit findings as to the problem

of gender discrimination by the States,"

id., Varner II emphasized that when the

EPA was extended to the States, "Congress

had developed a clear understanding of

the problem of gender discrimination on

the part of States" through its passage

of legislation such as Title IX, and

through the extension of Title VII to

State employers. Id.; see also id.

(quoting Fullilove v. Klutznick, 448 U.S.

448, 503 (1980) (Powell, J., concurring)

("’After Congress has legislated

repeatedly in an area of national

concern, its Members gain experience that

may reduce the need for fresh hearings or

prolonged debate when Congress again

considers action in that area.’")). The

court concluded that this evidence, along

with the "well-documented history of

gender discrimination in this Nation," is

sufficient to support the limited action

taken by Congress in its passage of the

EPA. Varner II, 226 F.3d at 936.

After Varner II, the Supreme Court

issued Garrett. 121 S.Ct. 955. In

Garrett, the Court first determined

whether the scope of the ADA is congruent

with the Fourteenth Amendment’s Equal

Protection Clause. Id. at 963. The Court

recognized that disability is a

classification that (like age) is subject

to "rational-basis review," id. at 963,

which means that State policies that

involve classifications based on

disability are constitutional if there is

a rational relationship between the

disparity in treatment and some

legitimate government purpose. Id. at

964. Thus, the ADA’s prohibition of

disability discrimination far exceeds

what is required under the Fourteenth

Amendment. Id. at 966. After determining

the "metes and bounds" of the ADA, the

Court examined "whether Congress

identified a history and pattern of

unconstitutional employment

discrimination by the States against the

disabled." Id. at 964. The Court

considered a half-dozen examples of

disability discrimination in the record,

but determined that even if those

incidents involved irrational (and thus

unconstitutional) action by the States,

"these incidents taken together fall far

short of even suggesting the pattern of

unconstitutional discrimination on which

sec. 5 legislation must be based." Id. at

965. The Court also reviewed other

accounts in the legislative record of

adverse treatment by the States. But the

Court noted that adverse treatment under

the ADA does not necessarily mean

irrational treatment that violates the

Fourteenth Amendment, and that these

accounts were not submitted directly to

Congress but to a task force that "made

no findings on the subject of state

discrimination in employment." Id. at

966. The Court recognized that Congress

made no mention of a pattern of

unconstitutional behavior by the States

in the ADA’s legislative findings. Id.

But the Court in Garrett went on to

explain that even "were it possible to

squeeze out of these examples a pattern

of unconstitutional discrimination by the

States," such a record would not make the

ADA congruent and proportional to the

Fourteenth Amendment, precisely because

the ADA’s requirements far exceed what is

constitutionally required. Id. Thus, the

Supreme Court concluded that Congress did

not validly abrogate the States’ immunity

from ADA claims. Id. at 968.

In this case, the Board contends that

according to Garrett, "no abrogation of

States’ immunity against federal

statutory claims is valid without express

findings in the statute itself, grounded

in sufficient legislative record

evidence, that States had engaged in a

pattern and practice of committing

unconstitutional conduct of the type

being prohibited by that statute."

According to the Board, because the EPA

is devoid of any explicit findings of

gender discrimination by the States,

Congress failed to validly abrogate the

States’ immunity from the EPA, and thus

the Garrett analysis requires us to

dismiss Cherry’s EPA claim.

The Board’s immunity argument is

unavailing. There is no indication in

Garrett that the Court established a new,

bright-line rule that Congress’ attempt

to abrogate immunity from a federal

statute is invalid if the statute lacks

specific findings that the States had

engaged in a pattern of unconstitutional

conduct of the type prohibited by the

statute. Garrett does not refute that the

"lack of legislative support in the

record is not determinative of the sec. 5

inquiry." Kimel, 528 U.S. at 91; see also

Florida Prepaid, 527 U.S at 646; City of

Boerne, 521 U.S. at 532. All Garrett does

is further demonstrate that the

legislative record is an important factor

when the statute in question pervasively

prohibits constitutional State action.

See Garrett, 121 S.Ct. at 965-66; City of

Boerne, 521 U.S. at 533. Because the

ADA’s protections extend substantially

beyond those of the Fourteenth Amendment,

the Garrett Court examined the

legislative record for evidence of a

pattern of unconstitutional State action

that may justify abrogation. Finding no

such evidence, the Court determined that

abrogation was invalid. But unlike the

statutes at issue in City of Boerne,

Kimel, Florida Prepaid, and Garrett, all

of which pervasively prohibit

constitutional State action, the EPA

"prohibits very little constitutional

conduct." Varner II, 226 F.3d at

935.Precisely because the EPA essentially

targets only unconstitutional gender

discrimination, the importance

ofcongressional findings of

unconstitutional State action is "greatly

diminished." Varner II, 226 F.3d at 935.

Thus, we decline to overrule this court’s

decision in Varner II, as the record of

gender discrimination identified in that

case was sufficient to support the

conclusion that Congress validly

exercised its authority under sec. 5 of

the Fourteenth Amendment when it extended

the EPA to cover gender-based wage

discrimination on the part of State

employers.

B. The Title IX Claim

The Board also argues that it is immune

from Cherry’s Title IX claim. According

to the Board, even though it is a

recipient of federal funds under Title

IX, it has not waived its immunity from

suits under Title IX by accepting those

funds.

Congress enacted Title IX pursuant to

its authority under the Spending

Clause./3 Davis v. Monroe County Board

of Education, 526 U.S. 629, 640 (1999).

Title IX provides, with certain

exceptions not at issue here, that "’[n]o

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.’"

Id. at 638 (quoting 20 U.S.C. sec.

1681(a)). Congress enacted Title IX with

two principal objectives in mind: "’[T]o

avoid the use of federal resources to

support discriminatory practices’ and ’to

provide individual citizens effective

protection against those practices.’"

Gebser v. Lago Vista Independent School

District, 524 U.S. 274, 286 (1998)

(quoting Cannon v. University of Chicago,

441 U.S. 677, 704 (1979)).

Although Congress can abrogate the

States’ immunity when it legislates

pursuant to the Fourteenth Amendment,

Congress cannot override the States’

immunity using an Article I power such as

Spending Clause legislation. See Garrett,

121 S.Ct. at 962 (citing Seminole Tribe

of Florida v. Florida, 517 U.S. 44, 72-73

(1996)). But the Supreme Court has

recognized that federal funds under Title

IX are "gifts" to the States, College

Savings Bank, 527 U.S. at 687. Therefore

Congress may, in its exercise of its

spending power, condition its grant of

funds to the States on their consent to

waive their immunity from suit. See id.

at 686; MCI, 222 F.3d at 344; see also

Pennhurst State School and Hospital v.

Halderman, 451 U.S. 1, 17 (1981)

("Turning to Congress’ power to legislate

pursuant to the spending power, our cases

have long recognized that Congress may

fix the terms on which it shall disburse

federal money to the States."). According

to the Supreme Court, "legislation

enacted pursuant to the spending power is

much in the nature of a contract: in

return for federal funds, the States

agree to comply with federally imposed

conditions." Pennhurst, 451 U.S. at 17;

Davis, 526 U.S. at 640; see also MCI, 222

F.3d at 344 ("States may waive their

immunity by accepting a benefit from

Congress that has conditions attached to

that acceptance."). Thus, a State may

waive its immunity from Title IX suits by

accepting federal funds under the

statute. MCI, 222 F.3d at 344 (citing

College Savings Bank, 527 U.S. at 686-

87).

However, the "mere receipt of federal

funds cannot establish that a State has

consented to suit in federal court."

Atascadero State Hospital v. Scanlon, 473

U.S. 234, 246-47 (1985). Congress must

manifest "a clear intent to condition

participation in programs funded under

[Title IX] on a State’s consent to waive

its constitutional immunity." Id. at 247.

If Congress intends to require the States

to waive their immunity from Title IX

suits in exchange for their receipt of

Title IX funds, Congress "must speak with

a clear voice," and do so

"unambiguously," in order to "enable the

States to exercise their choice

knowingly, cognizant of the consequences

of their participation." Pennhurst, 451

U.S. at 17. Thus, the "test for

determining whether a State has waived

its immunity from federal-court

jurisdiction is a stringent one."

Atascadero, 473 U.S. at 241.

In this case, the Board contends that

Congress has not made a clear statement

of its intent to condition the State’s

receipt of Title IX funds on the State’s

consent to waive its immunity. In support

of its contention, the Board argues that

because Title IX does not expressly

provide for a private cause of action

against the State, Congress has never

properly notified the Board that it must

surrender its immunity from Title IX

suits in exchange for its receipt of

Title IX funds.

The Board’s argument fails because

Congress has unambiguously conditioned

the States’ receipt of Title IX funds on

their waiver of Eleventh Amendment

immunity from private causes of action.

Although Title IX does not expressly

provide for a private right of action,

the Supreme Court has recognized since

1979 an implied private right of action

under the statute. Cannon, 441 U.S. at

717; Davis, 526 U.S. at 639. Subsequently

in 1986, Congress enacted 42 U.S.C. sec.

2000d-7(a), the Civil Rights Remedies

Equalization Act ("CRREA"), which

provides in relevant part:

(1) 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 . . . title IX

of the Education Amendments of 1972 [20

U.S.C. sec. 1681 et seq.], . . . or the

provisions of any other Federal statute

prohibiting discrimination by recipients

of Federal financial assistance.

42 U.S.C. sec. 2000d-7(a)(1). Congress

enacted the CRREA "with full cognizance"

of the holding in Cannon that Title IX

can be enforced by a private right of

action. Franklin v. Gwinnett County

Public Schools, 503 U.S. 60, 72 (1992);