Submitted: February 13, 2018
from United States District Court for the Western District of
Arkansas - Fayetteville.
LOKEN, BENTON, and ERICKSON, Circuit Judges.
BENTON, Circuit Judge.
Fryberger sued the University of Arkansas and its Board of
Trustees. The district court partly denied the
University's motion to dismiss. It appeals. Having
jurisdiction under 28 U.S.C. § 1291, this court affirms.
sued the University over its response to her report of a
sexual assault on campus. She sought compensatory and
punitive damages for violations of Title IX of the Education
Amendments of 1972. Title IX says (with exceptions): "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).
University moved to dismiss on the basis of sovereign
immunity. The district court refused to dismiss the Title IX
claims, citing the "Civil rights remedies
equalization" amendment of 1986 (the Remedies
Equalization amendment), 42 U.S.C. § 2000d-7, and
Franklin v. Gwinnett County Public Schools, 503 U.S.
60, 76 (1992).
of motions to dismiss on Eleventh Amendment immunity grounds
are immediately appealable." United States ex rel.
Rodgers v. Arkansas, 154 F.3d 865, 867 (8th Cir. 1998),
citing Puerto Rico Aqueduct and Sewer Auth. v. Metcalf
& Eddy, Inc., 506 U.S. 139, 147 (1993) ("States
and state entities that claim to be 'arms of the
State' may take advantage of the collateral order
doctrine to appeal a district court order denying a claim of
Eleventh Amendment immunity."). This court reviews de
novo questions of sovereign immunity. Lors v. Dean,
746 F.3d 857, 861 (8th Cir. 2014).
the Eleventh Amendment and constitutional principles of
sovereign immunity, "an unconsenting State is immune
from suits brought in federal courts by her own citizens as
well as by citizens of another state." Port Auth.
Trans-Hudson Corp. v. Feeney, 495 U.S. 299, 304 (1990),
quoting Pennhurst State Sch. & Hosp. v.
Halderman, 465 U.S. 89, 100 (1984). "A State,
however, may choose to waive its immunity in federal court at
its pleasure." Sossamon v. Texas, 563 U.S. 277,
may require a waiver of state sovereign immunity as a
condition for receiving federal funds." Jim C. v.
United States, 235 F.3d 1079, 1081 (8th Cir. 2000) (en
banc), citing College Sav. Bank v. Florida Prepaid
Postsecondary Educ. Expense Bd., 527 U.S. 666 (1999).
However, because "[s]overeign immunity principles
enforce an important constitutional limitation on the power
of the federal courts, " "[a] State's consent
to suit must be 'unequivocally expressed' in the text
of the relevant statute." Sossamon, 563 U.S. at
285, quoting Pennhurst, 465 U.S. at 99. "Only
by requiring this 'clear declaration' by the State
can we be 'certain that the State in fact consents to
suit.'" Id. at 284, quoting College
Sav., 527 U.S. at 680.
argues that under the Remedies Equalization amendment, the
University consented to this suit by accepting federal funds.
The University acknowledges it accepted federal funds. It
also does not challenge-and this court does not
address-Congress's authority to enact Title IX or the
Remedies Equalization amendment under the Spending Clause.
See Sossamon, 563 U.S. at 282 n.1 (declining to
address Congress's authority to enact RLUIPA under the
Spending Clause). The question is whether the
University's consent is unequivocally expressed in the
Remedies Equalization amendment, section 2000d-7(a) (emphasis
(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 section 504 of the Rehabilitation
Act of 1973 . . ., title IX of the Education Amendments
of 1972 . . . , the Age Discrimination Act of 1975 . .
., title VI of the Civil Rights Act of 1964 . . ., or the
provisions of any other Federal statute prohibiting
discrimination by recipients of Federal financial assistance.
(2) In a suit against a State for a violation of a statute
referred to in paragraph (1), remedies (including remedies
both at law and in equity) are available for such a violation
to the same extent as such remedies are available for such
violation in the suit against any public or private entity
other than a State.
Remedies Equalization amendment unequivocally expresses the
University's consent to suit in federal court for
violations of Title IX. See Sossamon, 563 U.S. at
291 ("[Section 2000d-7(a)(1)] expressly waives state
sovereign immunity for violations of . . . title IX . . .
."); Lane v. Pena, 518 U.S. 187, 200 (1996)
(referring to § 2000d-7 as "an unambiguous waiver
of the States' Eleventh Amendment immunity").
Cf. 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