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Fryberger v. University of Arkansas

United States Court of Appeals, Eighth Circuit

May 2, 2018

Elizabeth Fryberger, Plaintiff- Appellee
v.
University of Arkansas; Board of Trustees of the University of Arkansas Defendants - Appellants USA, Intervenor State of Arizona Amicus on Behalf of Appellant(s) Equal Rights Advocates Amicus on Behalf of Appellee(s) State of Arkansas; State of Kansas; State of Louisiana; State of Nebraska; State of South Carolina; State of Texas Amici on Behalf of Appellant(s)

          Submitted: February 13, 2018

          Appeal from United States District Court for the Western District of Arkansas - Fayetteville.

          Before LOKEN, BENTON, and ERICKSON, Circuit Judges.

          BENTON, Circuit Judge.

         Elizabeth Fryberger sued the University of Arkansas and its Board of Trustees. The district court[1] partly denied the University's motion to dismiss. It appeals. Having jurisdiction under 28 U.S.C. § 1291, this court affirms.

         Fryberger 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).

         The 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).

         "[D]enials 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).

         Under 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, 284 (2011).

         "Congress 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.

         Fryberger 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 added):

(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.

         The 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 ...


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