213 F.3d 858 (5th Cir. 2000), 94-30680, Pederson v Louisiana State University

Docket Nº:94-30680, 95-30777, 96-30310, 97-30427 and 97-30719.
Citation:213 F.3d 858
Party Name:BETH PEDERSON; LISA OLLAR; SAMANTHA CLARK, Individually and on behalf of all others similarly situated, Plaintiffs-Appellants, v. LOUISIANA STATE UNIVERSITY; WILLIAM E. DAVIS, Individually and in his official capacity as Chancellor of Louisiana State University; JOE C. DEAN; ELAINE D. ABELL; CLARENCE L. BARNEY; MILTON C. CHAPMAN; ELENORA A. CAWTHON
Case Date:June 01, 2000
Court:United States Courts of Appeals, Court of Appeals for the Fifth Circuit
 
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213 F.3d 858 (5th Cir. 2000)

BETH PEDERSON; LISA OLLAR; SAMANTHA CLARK, Individually and on behalf of all others similarly situated, Plaintiffs-Appellants,

v.

LOUISIANA STATE UNIVERSITY; WILLIAM E. DAVIS, Individually and in his official capacity as Chancellor of Louisiana State University; JOE C. DEAN; ELAINE D. ABELL; CLARENCE L. BARNEY; MILTON C. CHAPMAN; ELENORA A. CAWTHON; DAVID CONROY; CHARLES V. CUSIMANO; GORDON E. DORE; JANICE M. FOSTER; JIMMY A. LALONDE, JR.; JOSEPH LESAGE, JR.; ROLFE MCCOLLISTER, JR.; ROGER H. OGDEN; NICHOLAS SMITH, JR.; JOSEPH L. WAITZ; CHARLES S. WEEMS, III; JOHN R. WILLIAMS; MILTON J. WOMACK; ALL DEFENDANTS Defendants-Appellees.

BETH PEDERSON; LISA OLLAR; SAMANTHA CLARK, Individually and on behalf of all others similarly situated Plaintiffs-Appellants,

CINDY PINEDA; KARLA PINEDA Intervenor Plaintiffs-Appellants,

v.

LOUISIANA STATE UNIVERSITY; WILLIAM E. DAVIS, Individually and in his official capacity as Chancellor of Louisiana State University; JOE C. DEAN; ELAINE D. ABELL; CLARENCE L. BARNEY; MILTON C. CHAPMAN; ELENORA A. CAWTHON; DAVID CONROY; CHARLES V. CUSIMANO; GORDON E. DORE; JANICE M. FOSTER; JIMMY A. LALONDE, JR.; JOSEPH LESAGE, JR.; ROLFE MCCOLLISTER, JR.; ROGER H. OGDEN; NICHOLAS SMITH, JR.; JOSEPH L. WAITZ; CHARLES S. WEEMS, III; JOHN R. WILLIAMS; MILTON J. WOMACK; ALL DEFENDANTS Defendants-Appellees.

BETH PEDERSON; LISA OLLAR; SAMANTHA CLARK, Individually and on behalf of all others similarly situated Plaintiffs-Appellants,

v.

LOUISIANA STATE UNIVERSITY; WILLIAM E. DAVIS, Individually and in his official capacity as Chancellor of Louisiana State University; JOE C. DEAN; ELAINE D. ABELL; CLARENCE L. BARNEY; MILTON C. CHAPMAN; ELENORA A. CAWTHON; DAVID CONROY; CHARLES V. CUSIMANO; GORDON E. DORE; JANICE M. FOSTER; JIMMY A. LALONDE, JR.; JOSEPH LESAGE, JR.; ROLFE MCCOLLISTER, JR.; ROGER H. OGDEN; NICHOLAS SMITH, JR.; JOSEPH L. WAITZ; CHARLES S. WEEMS, III; JOHN R. WILLIAMS; MILTON J. WOMACK; ALL DEFENDANTS Defendants-Appellees.

BETH PEDERSON; LISA OLLAR; SAMANTHA CLARK, Individually and on behalf of all others similarly situated Plaintiffs-Appellees,

CINDY PINEDA; KARLA PINEDA Plaintiffs-Appellees,

v.

LOUISIANA STATE UNIVERSITY; WILLIAM E. DAVIS; JOE C. DEAN; ELAINE D. ABELL; CLARENCE L. BARNEY; MILTON C. CHAPMAN; ELENORA A. CAWTHON; DAVID CONROY; CHARLES V. CUSIMANO; GORDON E. DORE; JANICE M. FOSTER; JIMMY A. LALONDE, JR.; JOSEPH LESAGE, JR.; ROLFE MCCOLLISTER, JR.; ROGER H. OGDEN; NICHOLAS SMITH, JR.; JOSEPH L. WAITZ; CHARLES S. WEEMS, III; JOHN R. WILLIAMS; MILTON J. WOMACK; ALL DEFENDANTS Defendants-Appellants.

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BETH PEDERSON; LISA OLLAR; SAMANTHA CLARK, Individually and on behalf of all others similarly situated Plaintiffs-Appellants,

CINDY PINEDA; KARLA PINEDA Plaintiffs-Appellants-Appellees,

v.

LOUISIANA STATE UNIVERSITY; WILLIAM E. DAVIS, Individually and in his official capacity as Chancellor of Louisiana State University; JOE C. DEAN; ELAINE D. ABELL; CLARENCE L. BARNEY; MILTON C. CHAPMAN; ELENORA A. CAWTHON; DAVID CONROY; CHARLES V. CUSIMANO; GORDON E. DORE; JANICE M. FOSTER; JIMMY A. LALONDE, JR.; JOSEPH LESAGE, JR.; ROLFE MCCOLLISTER, JR.; ROGER H. OGDEN; NICHOLAS SMITH, JR.; JOSEPH L. WAITZ; CHARLES S. WEEMS, III; JOHN R. WILLIAMS; MILTON J. WOMACK; ALL DEFENDANTS Defendants-Appellees-Appellants.

Nos. 94-30680, 95-30777, 96-30310, 97-30427 and 97-30719.

IN THE UNITED STATES COURT OF Appeals, FOR THE FIFTH CIRCUIT

June 1, 2000

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Appeals from the United States District Court for the Middle District of Louisiana

ON PETITION FOR REHEARING AND SUGGESTION FOR REHEARING EN BANC

Before KING, Chief Judge, STEWART, Circuit Judge, and LITTLE, District Judge.[*]

CARL E. STEWART, Circuit Judge:

The original opinion in this matter was issued by the panel on January 27, 2000. A petition for panel rehearing and a petition for rehearing en banc are currently pending before the court. No active judge of this court having requested a poll, the petition for en banc rehearing is DENIED. The petition for panel rehearing is GRANTED to the extent that we VACATE our previous opinion and replace it with this one. In all other respects, the petition for rehearing is DENIED.

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OPINION

We must today determine whether the largest public university in Louisiana has discriminated against women under Title IX in the provision of facilities and teams for intercollegiate athletic competition. Before us are eight appeals, which were consolidated for briefing and argument, concerning allegations of such discrimination against the instant plaintiffs and a putative class of female undergraduates at Louisiana State University ("LSU"). After threading our way through issues relating to class certification and subject matter jurisdiction, we conclude that LSU violated Title IX by failing to accommodate effectively the interests and abilities of certain female students and that its discrimination against these students was intentional.

I. Procedural & Factual History

On March 23, 1994, three female undergraduate students attending LSU--Beth Pederson, Lisa Ollar, and Samantha Clark ("Pederson Plaintiffs")-filed suit in the United States District Court for the Middle District of Louisiana, alleging that LSU had violated and continued to violate Title IX of the Education Amendments Act of 1972, 20 U.S.C. §§ 1681-1688 (1994) ("Title IX"), and the Equal Protection Clause of the United States Constitution by denying them equal opportunity to participate in intercollegiate athletics, equal opportunity to compete for and to receive athletic scholarships, and equal access to the benefits and services that LSU provides to its varsity intercollegiate athletes, and by discriminating against women in the provision of athletic scholarships and in the compensation paid coaches.1 The Pederson Plaintiffs sought declaratory, injunctive, and monetary relief on behalf of themselves and all those similarly situated. The defendants to the action included LSU, Athletic Director Joe Dean (in his individual and official capacities) ("Dean"), Chancellor William E. Davis (in his individual and official capacities) ("Davis"), and the individual members of the LSU Board of Supervisors (in their official capacities only) (collectively, "Appellees").2

Subsequently, plaintiffs Cindy and Karla Pineda ("Pineda Plaintiffs" and, together with Pederson Plaintiffs, "Appellants") sought to intervene in the original action.3 The motion to intervene was denied, and the Pineda Plaintiffs filed suit on behalf of themselves and a class of those similarly situated in the Eastern District of Louisiana on January 3, 1995. Appellees transferred the Pineda action to the Middle District of Louisiana and moved to consolidate the Pineda action with the Pederson action. The district court granted the motion, and Appellants filed an amended complaint merging the actions.

In the course of the litigation, the district court denied Appellants' motions for preliminary injunctions. On September 14, 1995, it granted Appellees' motion for partial summary judgment, dismissing for lack of standing Appellants' claims for

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equal treatment in the areas of coaches' salaries, budgets, facilities, training, and travel, on the ground that Appellants could not demonstrate injury-in-fact related to existing varsity athletic programs in which they had never sought to participate.4 On the same date, the district court dismissed Appellants' 42 U.S.C. § 1983 claims against defendants Davis and Dean in their individual capacities on the basis of qualified immunity, and also dismissed the remaining § 1983 and Fourteenth Amendment claims. The district court also entered an order provisionally certifying the following class:

Those female students enrolled at LSU since 1993 and any time thereafter who have sought or seek to participate in varsity intercollegiate athletics at LSU but who are or were not allowed such participation due to LSU's failure to field teams in said female varsity athletics.

The district court conducted trial on Appellants' surviving claims from October 10, 1995, through November 8, 1995. On January 11, 1996, the district court entered an order decertifying the class because the numerosity requirement of Federal Rule of Civil Procedure 23(a) ("Rule 23(a)") had not been met and because a class was not needed to obtain the requested relief. On January 12, 1996, the district court entered its opinion on the merits finding that Appellees were in violation of Title IX. See Pederson v. Louisiana State Univ., 912 F.Supp. 892, 917 (M.D. La. 1996). The district court ruled, however, that Appellees did not intentionally violate Title IX and therefore would not be liable for monetary damages. The district court also dismissed the claims of the Pederson Plaintiffs for lack of standing. As a result of its finding that Appellees were in violation of Title IX, the district court ordered Appellees to submit a plan for compliance with the statute (the "Compliance Plan").

The Pederson Plaintiffs filed a notice of appeal on January 12, 1996 from the district court's order. The notice of appeal encompassed all prior district court orders. On June 9, 1997, the Pineda Plaintiffs filed a notice of appeal from the district court's May 9, 1997 order approving the Compliance Plan. The notice of the appeal encompassed all prior district court orders. On July 24, 1997, Appellants collectively filed a notice of appeal from the final judgment entered on July 1, 1997. In this consolidated appeal, Appellants challenge the district court's decision to decertify the class, the district...

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