TLPJ HOME PAGE

Please note: The format has been modified, and the table of authorities and footnotes have been omitted, but the text is the original.

Mary Bauer
Richard Ferris
American Civil Liberties Union
of Virginia
6 North Sixth Street, Suite 400
Richmond, VA 23219
(804) 644-8080

Sarah Posner
Trial Lawyers for Public Justice, P.C.
1717 Massachusetts Avenue, N.W.
Suite 800
Washington, DC 20036
(202) 797-8600

STATEMENT OF ISSUES PRESENTED FOR REVIEW

1. Whether Congress validly abrogated State sovereign immunity from suits under Title IX of the Education Amendments of 1972 ("Title IX"), 20 U.S.C. §§ 1681-1688, and the Civil Rights Remedies Equalization Act ("CRREA"), 42 U.S.C. § 2000d-7, pursuant to its power to enforce the Equal Protection Clause of the Fourteenth Amendment to the United States Constitution?

2. Whether Congress acted within its powers under the Spending Clause of Article I of the United States Constitution in conditioning the States' receipt of federal funds for education on their waiver of sovereign immunity from suit under Title IX?

STATEMENT OF FACTS

In 1997, the plaintiff/appellee, Annette Litman, sued George Mason University ("GMU"), one of her professors, and several administrators alleging that the professor sexually harassed her while she was his research assistant. Litman sued under Title IX, a civil rights statute prohibiting discrimination based on sex by educational programs that receive federal funds. GMU is a federally funded educational institution that is indisputably subject to the provisions of Title IX.

GMU moved to dismiss Litman's Title IX complaint, arguing that — as an institution of the Commonwealth of Virginia — it is immune from private suits to enforce Title IX under the Eleventh Amendment. In enacting the CRREA, which amended Title IX, Congress made explicit what was already implicit in Title IX: that private persons may sue State-funded educational programs, such as GMU, for Title IX violations. Notably, the CRREA explicitly addresses this issue and states, in relevant part, that

[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 . . . or the provisions of any other Federal statute prohibiting discrimination by recipients of Federal financial assistance.
42 U.S.C. § 2000d-7.

As GMU all but conceded before the lower court, these provisions of the CRREA are dispositive on the question of Congressional intent to abrogate State sovereign immunity for purposes of private enforcement of Title IX. GMU argued, however, that it was immune from suit on the ground that Congress exceeded its authority to pass legislation to enforce the Equal Protection Clause in enacting Title IX and the CRREA.

The district court agreed with GMU that Congress' abrogation of the States' immunity under Title IX was not constitutionally valid. The district court nonetheless denied GMU's motion to dismiss, holding that Congress validly conditioned the States' receipt of funds under Title IX on their waiver of sovereign immunity.

GMU appealed from the district court's order denying its motion to dismiss on sovereign immunity grounds. That order is considered final under the collateral order doctrine. This Court has jurisdiction pursuant to 28 U.S.C. § 1291.

SUMMARY OF ARGUMENT

The United States Supreme Court has always upheld the right of Congress to abrogate States' sovereign immunity from suit under laws enacted for purposes of enforcing the Equal Protection Clause of the Fourteenth Amendment to the United States Constitution. Indeed, Section 5 of the Fourteenth Amendment expressly provides that Congress is empowered to pass legislation to enforce the provisions of that Amendment. Because the Fourteenth Amendment required ratification by the States, there has been no question that, under Section 5, Congress may validly abrogate State sovereign immunity from suit under statutes enacted to enforce the Equal Protection Clause.

Pursuant to this over a century old body of case law, Congress may exercise its Constitutional authority to abrogate State sovereign immunity from suit by (1) clearly stating its intent to abrogate immunity in the text of the statute at issue, and (2) enacting the legislation pursuant to its powers under Section 5 of the Fourteenth Amendment to enforce the guarantees of the Equal Protection Clause. Because Title IX and its amendments easily meet both of these conditions, the district court erred in holding that Congress' abrogation of State immunity from suit under Title IX was invalid.

With respect to the first condition, Congress clearly stated its intent to abrogate sovereign immunity from suit under Title IX in the CRREA, which unequivocally provides that a "State shall not be immune under the Eleventh Amendment . . . from suit in Federal court for a violation of . . . Title IX." 42 U.S.C. § 2000d-7. Thus, there is no question that Congress intended to abrogate State sovereign immunity from private suits under Title IX.

It is equally clear that both Title IX and the CRREA were enacted pursuant to Congress' Section 5 power to enforce the guarantees of the Equal Protection Clause. Congress enacted Title IX for the purpose of proscribing sex discrimination in educational institutions and to ensure that federal funds were not used by such institutions to engage in discrimination on the basis of sex. Because the Supreme Court has repeatedly found that the Equal Protection Clause proscribes sex discrimination, Section 5 authorizes Congress to enact laws that also proscribe sex discrimination. It is clear, therefore, that Congress validly enacted Title IX to enforce the Equal Protection Clause. Similarly, by explicitly subjecting the states to private suits under the CRREA, Congress clearly acted in accordance with its authority to make laws to enforce the substantive guarantees of the Equal Protection Clause. Thus, Title IX and the CRREA meet the second condition that Congress must have acted within its Constitutional authority to enforce the Equal Protection Clause.

The district court, however, concluded that Congress exceeded its power to enforce the Equal Protection Clause in enacting Title IX and the CRREA, on the basis of two factors: (1) that the Equal Protection Clause proscribes discriminatory conduct only by State actors, while Title IX proscribes conduct by both State and private actors; and (2) that the Equal Protection Clause proscribes only intentional discrimination, while Title IX proscribes both intentional discrimination and disparate impact discrimination. With respect to both factors, the district court erred as a matter of law.

First, contrary to the district court's apparent assumption, it is well established that Congress may validly enact legislation subjecting private parties to suit for discriminatory practices, pursuant to its Article I powers. Congress may also act to extend such liability to the States by exercising its enforcement powers under Section 5 of the Fourteenth Amendment. Title IX and the CRREA represent appropriate exercises of this Congressional authority.

The district court's finding that Title IX could not constitutionally prohibit acts that have a discriminatory impact is also in error. Congress' constitutional authority to enforce the Equal Protection Clause includes the authority to proscribe otherwise constitutional acts that have a discriminatory impact, if the statute is based on a documented history of intentional discrimination. The legislative histories of both Title IX and the CRREA are replete with evidence of historical discrimination against women and girls in education. By extending liability to the States for conduct that has a discriminatory impact under Title IX, Congress acted well within its constitutional authority.

For all of these reasons, amici urge this Court to reverse the district court's ruling that Congress' abrogation of the States' immunity from suit under Title IX was not constitutionally valid.

Amici also urge this Court to affirm the district court's holding that GMU waived its sovereign immunity by accepting federal funds. The district court correctly held that GMU is not immune from suit because, pursuant to its Spending Clause powers, Congress may constitutionally condition a State's receipt of federal funds on its waiver of sovereign immunity from suit. GMU's acceptance of federal funds under Title IX is therefore validly conditioned on its waiver of immunity from suit under the statute.

ARGUMENT

I. GMU Is Not Immune from Suit Under Title IX Because Congress Validly Abrogated Sovereign Immunity Under the Seminole Tribe Test.

A. Congress May Validly Abrogate State Sovereign Immunity by Enacting Legislation Pursuant to Its Authority Under the Equal Protection Clause.

The Supreme Court has long recognized that Section 5 of the Fourteenth Amendment to the United States Constitution grants Congress the power to abrogate States' Eleventh Amendment immunity. See Fitzpatrick v. Bitzer, 427 U.S. 445, 456 (1976)(the "Eleventh Amendment, and the principle of State sovereignty which it embodies, [is] necessarily limited by the enforcement provisions of section 5 of the Fourteenth Amendment"). Section 5 provides that "[t]he Congress shall have the power to enforce, by appropriate legislation, the provisions of this article." The "provisions of this article" include the Equal Protection Clause, which states that "[n]o State shall make or enforce any law which shall . . . deny to any person within its jurisdiction the equal protection of the laws." Const. Am. XIV, Section I.

For over a century, the Supreme Court has interpreted these provisions to mean that:
The prohibitions of the Fourteenth Amendment are directed to the States, and they are to a degree restrictions of State power. It is these [provisions] which Congress is empowered to enforce, and to enforce against State action . . . . Such enforcement is no invasion of State Sovereignty. No law can be, which the people of the States have, by the Constitution of the United States, empowered Congress to enact.

Ex Parte State of Virginia, 100 U.S. 339, 346-47 (1880). Congress is therefore empowered to pass legislation imposing liability on the States for violations of citizens' right to equal protection of the laws, because the States, by ratifying the Fourteenth Amendment, "quite clearly contemplate[d] limitations on their authority." Fitzpatrick v. Bitzer, 427 U.S. at 452 (holding that Congress' 1972 amendments to Title VII of the Civil Rights Act, extending coverage to the States as employers, was a valid exercise of its power under Section 5 of the Fourteenth Amendment). These principles have remained a stable part of the Supreme Court's jurisprudence for over a century. See Ex Parte State of Virginia, 100 U.S. at 346-47.

Nevertheless, GMU argues that it is immune from suit based on the Supreme Court's recent decision in Seminole Tribe of Florida v. Florida, __ U.S. __, 116 S. Ct. 1114 (1996), which addresses the conditions under which Congress can validly abrogate State sovereign immunity. The Court's decision in Seminole Tribe, however, did not alter the basic principles underlying the abrogation of sovereign immunity in civil rights cases. On the contrary, the holding in that case reaffirmed the basic principles articulated in Ex Parte State of Virginia and, in fact, supports a conclusion that GMU is subject to suit under Title IX.

In Seminole Tribe, the Supreme Court held that Congress could validly abrogate State sovereign immunity by (1) unequivocally expressing its intent to abrogate immunity and (2) acting "pursuant to a valid exercise of power," which can only be pursuant to its power to enforce the Equal Protection Clause of the Fourteenth Amendment. 116 S. Ct. at 1123. Applying these principles in the context of a challenge to Congress' abrogation of State immunity in the Indian Gaming Regulatory Act ("IGRA"), 25 U.S.C. § 2702 et seq., the Court held that Congress did not validly abrogate the States' immunity from suit under the IGRA because Congress' power to enact the IGRA was derived from the Indian Commerce Clause, U.S. Const., Art. I., § 8, cl. 3, rather than the Equal Protection Clause.

Thus, Seminole Tribe did not alter the principles the Supreme Court has followed since Ex Parte Virginia to determine when Congress has validly abrogated State sovereign immunity pursuant to the Equal Protection Clause. Seminole Tribe articulated these principles in the form of a two step inquiry. First, the Court reaffirmed the principle that to validly abrogate State sovereign immunity, Congress must do so by a "‘clear legislative statement.'" Seminole Tribe, 116 S. Ct. at 1123 (quoting Blatchford v. Native Village of Noatak, 501 U.S. 775, 786 (1991)); see also Dellmuth v. Muth, 491 U.S. 223, 227-28 (1989); Atascadero State Hosp. v. Scanlon, 473 U.S. 234, 238-39 (1985); Quern v. Jordan, 440 U.S. 332, 345 (1979). Second, the Court reaffirmed the principle that Congress may validly abrogate State sovereign immunity by enacting legislation pursuant to its Section 5 powers to enforce the Equal Protection Clause. Seminole Tribe, 116 S. Ct. at 1125.

As we explain below, Title IX and the CRREA satisfy the two-prong test articulated in Seminole Tribe. The district court erred in holding that Title IX and its amendments were not valid exercises of Congress' power to pass laws to enforce the guarantees of the Equal Protection Clause.

B. Congress' Abrogation of State Immunity from Suit Under Title IX Meets the Seminole Tribe Test.
1. In Enacting Title IX and Its Amendments, Congress Unequivocally Expressed Its Intent to Abrogate State Sovereign Immunity.

Seminole Tribe requires a clear legislative statement of intent to abrogate sovereign immunity. The "simple but stringent test" articulated by the Supreme Court in that case is that "‘Congress may abrogate the States' constitutionally secured immunity from suit in federal court only by making its intention unmistakably clear in the language of the statute.'" 116 S. Ct. at 1123 (quoting Dellmuth v. Muth, 491 U.S. at 227-28 (1989)).

As GMU all but concedes, Congress has provided this unmistakable expression of intent in the context of Title IX. To begin with, Title IX provides, in relevant part, that:

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

20 U.S.C. §1681(a). For purposes of Title IX, the terms "‘program or activity' and ‘program' mean all the operations of . . . a department, agency, special purpose district or other instrumentality of a State or local government." 20 U.S.C. §1687(1)(A). Thus, Congress intended that State institutions would have to comply with Title IX in order to receive federal funds.

Moreover, Congress understood that a private right of action was essential to ensure States' compliance. Although Title IX contains no explicit provision for a private right of action, Congress clarified its intention to create a private right of action against any institution covered by Title IX when it enacted the Civil Rights Attorney's Fees Awards Act of 1976 ("Section 1988"), which provided for recovery of attorneys' fees to prevailing parties in suits brought under various civil rights statutes, including Title IX. See 42 U.S.C. § 1988; Cannon v. University of Chicago, 441 U.S. 677, 685 n. 3 (1979) (establishing an implied right of action for private damages suits under Title IX). A relevant Senate Report that accompanied that legislation notes that civil rights laws, including Title IX, "'depend heavily upon private enforcement," and further states that "fee awards have proved an essential remedy if private citizens are to have a meaningful opportunity to vindicate the important Congressional policies which these laws contain.'" Cannon, 441 U.S. at 686 n. 6 (quoting S. Rep. No. 94-1011 at 2 (1976), reprinted in 1976 U.S.C.C.A.N. 5908, 5910).

After Congress enacted Title IX and Section 1988, the Supreme Court held that a "general authorization for suit in federal court is not the kind of unequivocal statutory language sufficient to abrogate the Eleventh Amendment." Atascadero, 473 U.S. at 246. Instead, Congress' intention to abrogate Eleventh Amendment immunity must be "unmistakably clear" from the language of the statute.

In response to Atascadero, Congress further asserted its intention to abrogate sovereign immunity by enacting the CRREA, which made explicit that:

[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 . . . or the provisions of any other Federal statute prohibiting discrimination by recipients of Federal financial assistance.
42 U.S.C. § 2000d-7. Thus, there is no question that Congress intended to allow private citizens to sue State educational institutions that receive federal funding for violations of Title IX. This intent is "unmistakably clear" from the language of Title IX and the CRREA. See Seminole Tribe, 116 S. Ct. at 1125.

In view of the CRREA's "explicit language," Congress "clearly satisfied" the first prong of Seminole Tribe. See Franks v. Kentucky Sch. for the Deaf, 142 F.3d 360, 362 (6th Cir. 1998) (citing Lane v. Pena, 518 U.S. 187, 198 (1996), which noted that Congress created "an unambiguous waiver of the States' Eleventh Amendment immunity" in enacting the CRREA). "Title IX and the Equalization Act (CRREA), read together, unequivocally state Congress' intent to abrogate the States' Eleventh Amendment immunity." Doe v. University of Illinois, 138 F.3d 653, 657 (7th Cir. 1998), petition for cert. filed, 67 U.S.L.W. 3083 (July 13, 1998) (No. 98-126); see also Crawford v. Davis, 109 F.3d 1281, 1283 (8th Cir. 1997) ("Congress has unequivocally expressed its intent to abrogate the States' Eleventh Amendment immunity for Title IX claims").

2. Congress Had the Authority to Enact Title IX and the CRREA to Enforce the Substantive Guarantees of the Fourteenth Amendment.

The second prong of the Seminole Tribe test states that Congress may validly abrogate State sovereign immunity only when it is enacting legislation pursuant to its Section 5 powers to enforce the Equal Protection Clause. 116 S. Ct. at 1125. As we set out below, this prong also is met in this case, since Congress enacted Title IX and the CRREA pursuant to its constitutional power to enforce the Equal Protection Clause.

In order to indicate that it is exercising its authority to abrogate State sovereign immunity under the Equal Protection Clause, "Congress need not [have] recite[d] the words 'section 5' or 'Fourteenth Amendment' or "equal protection.'" E.E.O.C. v. Wyoming, 460 U.S. 226, 243-44 n. 18 (1983) (citing Fullilove v. Klutznick, 448 U.S. 448, 476-78 (1980)). Rather, the question of whether Congress acted pursuant to the Equal Protection Clause depends on whether Congress, "as an objective matter," had the constitutional authority to act pursuant to its power to enforce the Equal Protection Clause. Crawford v. Davis, 109 F.3d at 1283 (citing E.E.O.C. v. Wyoming); see also Franks, 142 F.3d at 363; Doe v. University of Illinois, 138 F.3d at 659-60. Here, this standard is easily met because Section 5 of the Fourteenth Amendment grants Congress the authority to enforce the substantive guarantees of the Fourteenth Amendment and Title IX is plainly within the ambit of that enforcement authority.

As the Supreme Court noted over a century ago, the scope of Congress' enforcement power under Section 5 is extremely broad. It includes:

Whatever legislation is appropriate, that is, adapted to carry out the objects the amendments have in view, whatever tends to enforce submission to the prohibitions they contain, and to secure to all persons the enjoyment and perfect equality of civil rights and the equal protection of the laws against State denial or invasion, if not prohibited, is brought within the domain of congressional powers.

Ex Parte Virginia, 100 U.S. at 345-46.

Similarly, for more than a quarter of a century, the Supreme Court has recognized that laws that prohibit discrimination on the basis of sex derive their constitutional validity from the Equal Protection Clause. See Reed v. Reed, 404 U.S. 71, 73 (1971). Indeed, since its decision in Reed, the Supreme Court "has repeatedly recognized that neither federal nor State government acts compatibly with the equal protection principle when a law or official policy denies to women, simply because they are women, full citizenship stature -- equal opportunity to aspire, achieve, participate in and contribute to society based on their individual talents and capacities." United States v. Virginia, 518 U.S. 515, 116 S. Ct. 2264, 2275 (1996) (holding that the Equal Protection Clause prohibits a State funded educational institution from discriminating against students on the basis of their gender without an "exceedingly persuasive justification"); Mississippi University for Women v. Hogan, 458 U.S. 718 (1982) (same). In short, the Fourteenth Amendment proscribes discrimination by States on the basis of gender and, as a result, it is clear that Congress was acting pursuant to its Section 5 powers to enforce the Equal Protection Clause when it enacted Title IX and extended its requirements to the States. See Crawford v. Davis, 109 F.3d at 1283; Franks, 142 F.3d at 363.

Further, because Title IX proscribes gender discrimination in education, which the Equal Protection Clause also proscribes, "it follows that Congress had the authority, pursuant to Section 5, to make Title IX applicable to the States." Franks, 142 F.3d at 363 (citing Doe, 138 F.3d at 659-60, and Crawford, 109 F.3d at 1283). For all of these reasons, there can be no doubt that the explicit abrogation of State sovereign immunity that is contained in Title IX and the CRREA pass constitutional muster.

Still further evidence of the constitutionality of these provisions lies in Congress' authority to enact Title IX as part of "‘the civil rights enforcement scheme' that successive Congresses have enacted over the past 110 years" to "enforce the 14th Amendment by eliminating discrimination." Cannon v. University of Chicago, 441 U.S. at 688 n. 7 (quoting 122 Cong. Rec. 31472 (1976) (remarks of Sen. Kennedy during debates on Section 1988)). As another court of appeals observed in holding that Congress validly abrogated state immunity from Title IX suits under Seminole Tribe, "[p]rohibiting 'arbitrary, discriminatory government conduct . . . is the very essence of the guarantee of 'equal protection of the laws' of the Fourteenth Amendment." Doe v. University of Illinois, 138 F.3d at 660 (quoting Elrod, 674 F.2d 601, 604 (7th Cir. 1982)), which held, under the same reasoning, that the Age Discrimination in Employment Act is a valid exercise of Congress' Section 5 powers). This reasoning has also led the Eighth Circuit to conclude that "we are unable to understand how a statute [Title IX] enacted specifically to combat such discrimination could fall outside the authority granted to Congress by Section 5." Crawford, 109 F.3d at 1283.

GMU suggests, however, that — all these authorities notwithstanding — Congress acted pursuant to the Spending Clause rather than the Equal Protection Clause in enacting Title IX and the CRREA. For this reason, GMU contends, Congress' abrogation of State sovereign immunity under Title IX is unconstitutional. Although GMU asserts otherwise, the Supreme Court has never decided whether Congress used its Equal Protection Clause power, or its Spending Clause power, or both in enacting Title IX. See Franklin v. Gwinnett County Public Schools, 503 U.S. 60, 75 n. 8 (1992). And, in Cannon, the Court suggested that Congress' power derived from both provisions. 441 U.S. at 704. As we pointed out at the outset, however, there is no need for this Court to resolve this issue because it is well established that the relevant question is whether the Constitution authorizes Congress to act, and not whether Congress purported to act pursuant to a particular constitutional provision. Crawford, 109 F.3d at 1283; see also Franks, 142 F.3d at 363; Doe, 138 F.3d at 659-60. As the above authorities make clear, the Constitution unquestioningly authorized Congress to enforce the Equal Protection Clause through the enactment of Title IX and the CRREA.

For all of these reasons, it is clear that Congress properly acted pursuant to its constitutional authority to enforce the Equal Protection Clause by proscribing gender discrimination in schools -- and to make states liable for engaging in such discrimination -- when it enacted both Title IX and the CRREA. Thus, Congress satisfied the second prong of Seminole Tribe by acting pursuant to its Section 5 powers to enforce the Equal Protection Clause of the Fourteenth Amendment.
II. The District Court Erred in Concluding that Title IX and the CRREA Impermissibly Expand the Substantive Guarantees of the Fourteenth Amendment.

A. Congress Did Not Exceed Its Section 5 Powers In Enacting Title IX And The CRREA Under City of Boerne v. Flores.

The district court rejected the decisions of the Sixth, Seventh and Eighth Circuits in Franks, Doe and Crawford, which all held that subjecting States to liability under Title IX was a valid exercise of Congress' Equal Protection enforcement power. The district court erroneously concluded that these cases were not persuasive authority because they were briefed or decided before the Supreme Court's decision in City of Boerne v. Flores, 117 S. Ct. 2157 (1997). Based on City of Boerne, the district court concluded that Congress' extension of Title IX to the States through the CRREA exceeded its Section 5 powers. City of Boerne, in fact, compels the opposite conclusion -- that Congress acted well within its Section 5 powers in extending Title IX to the States.

In City of Boerne, the Supreme Court invalidated the Religious Freedom Restoration Act ("RFRA") on the ground that it exceeded Congress' authority to enact legislation to enforce the guarantees of the Equal Protection Clause. The case arose after the City of Boerne challenged the validity of the RFRA in response to a lawsuit against the city by a Catholic archbishop who claimed that the city's denial of a building permit to enlarge the archbishop's church violated the RFRA. The archbishop contended that, under the RFRA, the historic preservation ordinance burdened his right to free exercise of religion. The city had denied the permit because the enlargement would have violated a local historic preservation ordinance. The RFRA, however, prohibited State and municipal governments from "substantially burdening" a person's exercise of religion, even if the burden resulted from a law of general applicability, unless the government could demonstrate that the burden was in furtherance of a compelling governmental interest and was the least restrictive means of furthering that interest. 117 S. Ct. at 2162.

In invalidating the RFRA, the Court held that the RFRA impermissibly expanded the guarantees of the Fourteenth Amendment because there was no congruence between the means used by the statute (requiring State and local laws to meet the compelling interest test) and the ends to be achieved (preventing burdens on citizens' Fourteenth Amendment right to free exercise of religion). City of Boerne, 117 S. Ct. at 2169 (citing South Carolina v. Katzenbach, 383 U.S. 301, 308 (1966)). The Court concluded that the RFRA was "so out of proportion to a supposed remedial or preventive object that it cannot be understood as responsive to, or designed to prevent, unconstitutional behavior." Id. at 2170. Clearly, however, the same cannot be said of Title IX.

1. Congress Validly Used Its Equal Protection Enforcement Powers in Extending Title IX to the States.
The district court erroneously believed that this case was like City of Boerne because it concluded that Title IX and its amendments exceeded Congress' Section 5 authority to enforce the Equal Protection Clause. According to the court, Congress exceeded its authority because (1) private parties are subject to liability under Title IX, but the Fourteenth Amendment proscribes only the conduct of State actors; and (2) Title IX proscribes disparate impact and intentional discrimination, whereas the Fourteenth Amendment proscribes only intentional discrimination. Both grounds for the court's conclusion are without merit.

First, the fact that Congress passed a statute to protect citizens from discrimination, and made it applicable to both private parties and the States, does not mean it exceeded its Section 5 enforcement powers. It is well established that Congress may pass laws to proscribe discrimination by private parties pursuant to its Article I powers. See, e.g., Katzenbach v. McClung, 379 U.S. 294, 304 (1964). It is also clear that Congress may then act to extend the application of those laws to the States pursuant to its Section 5 powers. See Elrod, 674 F.2d at 604. In this respect, Title IX "follows the familiar pattern of contemporary civil rights acts in grounding prohibitions against private parties in [its Article I powers], while reaching government conduct by the more direct route of the Fourteenth Amendment." Elrod, 674 F.2d at 604 (holding that Age Discrimination in Employment Act followed this pattern).

Because the Equal Protection Clause prohibits sex discrimination, it follows that Title IX's proscription against such discrimination is "plainly adapted" to enforcing the Equal Protection Clause. Katzenbach v. Morgan, 384 U.S. 641, 650 (1966). Moreover, when Congress enacted the CRREA to explicitly subject States to private actions under Title IX, it did so "to prohibit the arbitrary, discriminatory government conduct that is the very essence of the guarantee of ‘equal protection of the laws' of the Fourteenth Amendment. Elrod, 674 F.2d at 604 (holding that 1974 amendments to the Age Discrimination in Employment Act subjecting the States to liability is appropriate legislation under Section 5 of the Fourteenth Amendment). The fact that Title IX also proscribes discriminatory conduct by private parties does not alter this analysis, as Congress may constitutionally proscribe the conduct of private parties under its Article I powers. See Katzenbach v. McClung, 379 U.S. at 304; Elrod, 674 F.2d at 604. Therefore, the district court erroneously concluded that Congress exceeded its enforcement powers in permitting Title IX to proscribe sex discrimination by private parties and State actors.

2. Congress Did Not Exceed Its Enforcement Powers by Proscribing Disparate Impact Discrimination.

The district court also erred in concluding that Title IX's prohibition against both intentional and disparate impact discrimination exceeds Congress' enforcement powers. Section 5 of the Fourteenth Amendment clearly authorizes Congress to proscribe conduct that is otherwise constitutional — such as conduct that has discriminatory effects — in order to prevent an unintended discriminatory impact on a protected class. See Katzenbach v. Morgan, 384 U.S. at 651.

This authority stems from the broad sweep of Section 5, which was recognized over a century ago in Ex Parte Virginia. As the Supreme Court noted in City of Boerne, "[l]egislation which deters or remedies constitutional violations can fall within the sweep of Congress' enforcement power even if in the process it prohibits conduct which is not itself unconstitutional and intrudes into ‘legislative spheres of autonomy previously reserved to the States.'" City of Boerne, 117 S. Ct. at 2163 (quoting Fitzpatrick, 427 U.S. at 455). Moreover, the Supreme Court has also recognized that Congress — pursuant to its Section 5 enforcement authority — can validly enact laws that "prohibit [conduct] that ha[s] a discriminatory impact, " where there is a history of intentional discrimination. See City of Rome v. United States, 446 U.S. 156, 177 (1980) (upholding the Voting Rights Act under the Fifteenth Amendment), cited with approval in City of Boerne, 117 S. Ct. at 2170. Congress therefore acts within its constitutional powers when it passes legislation designed to prevent conduct that may have a discriminatory impact, as long as the legislation is based on a history of intentional discrimination. City of Boerne, 117 S. Ct. at 2170.

To demonstrate that Congress did not act within its constitutional powers in passing the RFRA, in the City of Boerne, the Supreme Court contrasted the legislative history of the RFRA with the legislative history of the Voting Rights Act, which contained significant evidence of racial discrimination that the Act was specifically designed to remediate. Id. at 2170. Based on this history of intentional discrimination, the Court noted that the Voting Rights Act was valid remedial legislation under Section 5 because it was "'adapted to the mischief and wrong which the [Fourteenth] [A]mendment was intended to provide against.'" 117 S. Ct. at 2170 (quoting Civil Rights Cases, 109 U.S. 3, 13 (1883)); see also City of Rome, 466 U.S. at 176; Katzenbach v. Morgan, 384 U.S. 641, 651-52 (1966). The RFRA, in contrast, was not enacted in response to a history of intentional religious discrimination and, as the Court pointed out, its legislative history "lacks examples of modern instances of generally applicable laws passed because of religious bigotry." Id. at 2169. Accordingly, the Court concluded that the RFRA was not intended to remedy a history of intentional discrimination but rather appeared instead to "attempt a substantive change in constitutional protections." Id. at 2170. Under these circumstances, the Court held that the RFRA exceeded Congress' enforcement powers under Section 5.

Title IX's legislative history, like the legislative history of the Voting Rights Act, and unlike the legislative history of the RFRA, clearly shows a history of intentional discrimination. The record is replete with tables, studies, letters, and statements regarding the persistent discrimination against women in education. "It is clear to me that sex discrimination reaches into all facets of education — admission, scholarship programs, faculty hiring and promotion, professional staffing and pay scales." (remarks of Sen. Bayh), 118 Cong. Rec. 5803 (Feb. 28, 1972). See also, e.g., 118 Cong. Rec. 5803-15 (Feb. 28, 1972); 118 Cong. Rec. 5633-65 (Feb. 25, 1972); 118 Cong. Rec. 3935-40 (Feb. 15, 1972); 117 Cong. Rec. 30404-16 (Aug. 6, 1971); 117 Cong. Rec. 25507-21 (July 15, 1971); Discrimination Against Women: Hearings on Section 805 of H.R. 16098 before the Special Committee on Education of the House Committee on Education and Labor, 91st Cong. 2d Sess. (1970).

In sum, as it applies to the States, Title IX was properly enacted pursuant to Congress' Section 5 powers because it is "plainly adapted" to secure the Fourteenth Amendment right to equal protection of the law. See Katzenbach v. Morgan, 384 U.S. at 651-52. Moreover, because Congress based Title IX on a demonstrable history of intentional sex discrimination, it could validly proscribe disparate impact discrimination by enacting Title IX. Congress therefore did not exceed its Section 5 powers in enacting Title IX and the CRREA. The district court erred in holding that Congress exceeded its Section 5 powers by including disparate impact discrimination within Title IX's proscription.

B. The District Court's Decision Is Inconsistent with the Decisions of Federal Courts of Appeals.

The district court's holding is not only inconsistent with City of Boerne, it is also inconsistent with the holdings of several federal appeals courts. As was noted above, before the Supreme Court's holding in City of Boerne, the Sixth, Seventh and Eighth Circuits all held that the extension of Title IX to the States through the CRREA is a valid exercise of Congress' Equal Protection enforcement power. See Franks, Doe and Crawford, supra. Although no federal court of appeals has had occasion to decide the validity of Congress' abrogation of State immunity under Title IX after City of Boerne, several courts have addressed the issue in the context of other civil rights statutes, including the Age Discrimination in Employment Act ("ADEA"), 29 U.S.C. § 621 et seq., the Equal Pay Act, 29 U.S.C. § 206(d), and the Americans with Disabilities Act ("ADA"), 42 U.S.C. § 12101 et seq. None of these courts has decided that City of Boerne requires a result different from the pre-City of Boerne jurisprudence. They have all held that Congress' abrogation of State sovereign immunity under these statutes was a valid exercise of its enforcement powers.

In Goshtasby v. Board of Trustees of the University of Illinois, 141 F.3d 761 (7th Cir. 1998), the Seventh Circuit affirmed that its prior holding in Elrod — that the 1974 amendments to the ADEA validly abrogated sovereign immunity — was not altered by the Supreme Court's decision in City of Boerne. Goshtasby, 141 F.3d at 770. The Court rejected the State's contention that the ADEA was not valid equal protection legislation and concluded that Congress may validly exercise its enforcement power "through an enactment protecting against arbitrary and invidious age discrimination." 141 F.3d at 770.

Similarly, in Coolbaugh v. State of Louisiana, 136 F.3d 430 (5th Cir. 1998), petition for cert. filed, 66 U.S.L.W. 3783 (May 28, 1998) (No. 97-1941), the Fifth Circuit held that, under City of Boerne, Congress did not exceed its Section 5 powers in extending application of the ADA to the States. Coolbaugh, 136 F.3d at 438. The Court examined the legislative history of the ADA and the Rehabilitation Act, and concluded that:

Congress explicitly found that persons with disabilities have suffered discrimination. Both the ADA and the Rehabilitation Act therefore are within the scope of appropriate legislation as defined by the Supreme Court. At the same time, neither act provides remedies so sweeping that they exceed the harms they are designed to redress . . . both the ADA and the Rehabilitation Act were validly enacted under the Fourteenth Amendment.

Id. (quoting Clark v. California,123 F.3d 1267, 1270 (9th Cir. 1997)). The court therefore concluded that the State of Louisiana was not immune from suit under the ADA.

And, in Varner v. Illinois State University, __ F.3d ___, 1998 U.S. App. LEXIS 16478 (7th Cir., July 21, 1998), the Seventh Circuit held that a State university was not immune from suit under the Equal Pay Act because Congress had "substantial justification to conclude that pervasive discrimination existed whereby women were paid less than men for equal work." Id.

In its brief (pp. 10-13), GMU cites a number of cases to support its position that Congress' abrogation of sovereign immunity from suit was invalid because Title IX and the CRREA were not passed pursuant to Congress' Section 5 powers. However, none of these cases is persuasive authority because they all interpreted statutes that do not implicate any equal protection concerns. As a result, it was obvious in those cases that Congress' power to enact the statutes did not derive from Section 5. See Schlossberg v. Maryland (In Re Creative Goldsmiths), 119 F.3d 1140, 1146 (4th Cir. 1997), cert. denied, 118 S. Ct. 1517 (1998) (Bankruptcy Reform Act); Abril v. Virginia, ____ F.3d. ____, 1998 U.S. App. LEXIS 10281 (4th Cir. 1998) (Fair Labor Standards Act); Chaves v. Arte Publico Press, 139 F.3d 504 (5th Cir. 1998) (Copyright Act); In re Sacred Heart Hosp.,133 F.3d 237 (3d Cir. 1998) (Bankruptcy Reform Act); College Savings Bank v. Florida Prepaid Postsecondary Educ. Expense Bd., 131 F.3d 353 (3d Cir. 1997) (Trademark Remedy Clarification Act); In Re Fernandez, 123 F.3d 241 (5th Cir. 1997) (Bankruptcy Reform Act). For the same reason, all of these cases are irrelevant to the validity of Congress' abrogation of State immunity under Title IX and the CRREA.

In sum, the reasoning of the court below is at odds with the holdings of every federal court of appeals to address the issue of the abrogation of State sovereign immunity under Section 5 of the Fourteenth Amendment both before and after the Supreme Court's ruing in City of Boerne. Moreover, it is clear that Congress' abrogation of State sovereign immunity from suit under Title IX was a valid — and not excessive — exercise of its Section 5 powers to enforce the guarantees of the Equal Protection Clause. The district court's holding to the contrary must be reversed.

III. The District Court Correctly Concluded that, Pursuant to Its Spending Clause Powers, Congress Validly Conditioned States' Receipt of Federal Funds on Their Waiver of Immunity from Suit Under Title IX.

The district court rejected GMU's argument that, because Title IX was enacted pursuant to Congress' Spending Clause powers, Seminole Tribe renders Congress' abrogation of sovereign immunity from suit under Title IX invalid. The district court correctly concluded that nothing in the Supreme Court's decision in Seminole Tribe prohibits Congress from exercising its Article I spending powers to condition States' receipt of federal funds on their waiver of immunity from suit.

As the district court properly held, Congress may constitutionally condition a State's receipt of federal funds on its compliance with a federal statute. See New York v. United States, 505 U.S. 144, 171-73 (1992) (holding that Congress validly exercised its spending powers in conditioning States' receipt of federal funds on their achievement of "milestones" for disposal of radioactive waste); South Dakota v. Dole, 483 U.S. 203, 212 (1987) (holding that Congress validly exercised its spending powers in conditioning States' receipt of highway funds on their enactment of a minimum legal drinking age of 21). Similarly, Title IX conditions the States' receipt of federal funds on their compliance with its prohibition against sex discrimination.

GMU does not dispute that it receives federal funds, and recognizes that the express provisions of Title IX and the CRREA apply to GMU as a federally funded institution. GMU nonetheless argues that, "there is nothing in the text that even remotely suggests that Virginia's public universities must waive the Eleventh Amendment as a condition of receiving federal funds." Appellant's Brief at 20 (emphasis in original). This argument is, of course, belied by the text of the two statutes.

Waiver is found, as GMU itself admits, where "Congress has unambiguously conditioned receipt of federal funding upon the States' waiver of its [sic] Eleventh Amendment immunity for Title IX suits." Appellant's Brief at 19 (citing, inter alia, Atascadero, 473 U.S. at 241). As set forth above, Title IX and its amendments (1) expressly prohibit recipients of federal funds from engaging in unlawful discrimination, (2) create a private right of action, and (3) explicitly state that "[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]." 42 U.S.C. §2000d-7. Thus, Title IX and its amendments unambiguously condition a State's receipt of funds on its compliance with Title IX's prohibition against sex discrimination and subject states to lawsuits in federal court for violating Title IX. Read together, it is incontrovertible that these two statutes condition the States' receipt of federal funding both on their compliance with Title IX and their consent to private suits.

GMU does not dispute that it receives federal funds. However, it makes the illogical argument that "the very existence of Congress' attempt to abrogate the Eleventh Amendment for Title IX claims [by enacting the CRREA] demonstrates the fallacy of the implied waiver. If Congress had intended to condition the receipt of federal funds on the waiver of the Eleventh Amendment, there would have been no need to attempt to abrogate Eleventh Amendment immunity by passage of [the CRREA.]" Appellant's Brief, p. 20 n. 12. GMU's argument makes no sense because Congress could have both abrogated states' immunity and conditioned funds on a waiver. Moreover, the text of the state is so clear that GMU cannot reasonably contend that its acceptance of federal funds does not subject it to suits in federal court.

IV. CONCLUSION

For all the foregoing reasons, amici respectfully request that this Court (1) reverse the district court's ruling that Congress did not validly exercise its constitutional authority in abrogating States' Eleventh Amendment immunity from suit under Title IX and the CRREA, and (2) affirm the district court's ruling that Congress validly conditioned GMU's receipt of federal funds on its waiver of immunity from suit under Title IX.

Respectfully submitted,
______________________________
Mary Bauer
Richard Ferris
American Civil Liberties Union of Virginia
6 North Sixth Street, Suite 400
Richmond, VA 23219
(804) 644-8080

______________________________
Sarah Posner
Trial Lawyers for Public Justice, P.C.
1717 Massachusetts Ave., N.W.
Suite 800
Washington, D.C. 20036
(202) 797-8600

Counsel for Amici Curiae