799 F.2d 155 (5th Cir. 1986), 85-1429, Bennett v. West Texas State University

Docket Nº:85-1429.
Citation:799 F.2d 155
Party Name:Tina BENNETT, Geneva McAfee, Deanne Robertson, Yvonne Berryhill, Arlene Bern and Diana Byrnes, Plaintiffs-Appellants, v. WEST TEXAS STATE UNIVERSITY, et al., Defendants-Appellees.
Case Date:September 05, 1986
Court:United States Courts of Appeals, Court of Appeals for the Fifth Circuit
 
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Page 155

799 F.2d 155 (5th Cir. 1986)

Tina BENNETT, Geneva McAfee, Deanne Robertson, Yvonne

Berryhill, Arlene Bern and Diana Byrnes,

Plaintiffs-Appellants,

v.

WEST TEXAS STATE UNIVERSITY, et al., Defendants-Appellees.

No. 85-1429.

United States Court of Appeals, Fifth Circuit

September 5, 1986

Page 156

        Suzanne E. Meeker, Washington, D.C., Hoffman & Wheeler, Betty Wheeler, Amarillo, Tex., Nancy Duff Campbell, Marcia D. Greenberger, Washington, D.C., for plaintiffs-appellants.

        Sedora R. Jefferson, Asst. Carla M. Crisford, Attys. Gen., Jim Mattox, Atty. Gen., Austin, Tex., for defendants-appellees.

        Appeal from the United States District Court for the Northern District of Texas.

        Before GEE, RANDALL, and DAVIS, Circuit Judges.

        RANDALL, Circuit Judge:

        Appellants, a class of female student athletes at West Texas State University, appeal from summary judgment. The class alleges sex discrimination in violation of Title IX of the Education Amendments of 1972 in the University's intercollegiate athletics program. The district court held, however, that Title IX coverage does not extend to the athletics program as it is not receiving federal financial assistance within the meaning of Sec. 901 of Title IX. We affirm.

       I.

        Appellants filed this class action against West Texas State University ("WTSU" or "the University") and several of its officials on April 15, 1980, alleging that WTSU discriminates on the basis of gender in its intercollegiate athletics program. Appellees' first motion for summary judgment was granted on July 27, 1981. The court held that Title IX applies only to a program or activity that receives "direct" federal financial assistance, and characterized the federal funding received by the WTSU athletics program as "indirect." 525 F.Supp. 77, 80 (N.D.Tex.1981). Appellants appealed from that judgment. On appeal, this court in an unpublished opinion declined to decide whether the federal funding received

Page 157

by the University brought it under the ambit of Title IX, but remanded to give appellants the opportunity to develop the record on the receipt of federal financial assistance by the athletics department. 698 F.2d 1215 (5th Cir.1983), cert. denied, 466 U.S. 903, 104 S.Ct. 1677, 80 L.Ed.2d 152 (1984).

        On remand, the district court again granted the defendants' motion for summary judgment after considering evidence regarding the financial assistance received by the athletics program. The court held that the intervening decision in Grove City College v. Bell, 465 U.S. 555, 104 S.Ct. 1211, 79 L.Ed.2d 516 (1984), controlled, and that the athletics program was not federally assisted within the meaning of that decision.

        Appellants appeal on three grounds: (1) that the receipt of federal funds by WTSU directly benefits the intercollegiate athletics program within the meaning of Sec. 901 of Title IX, (2) that even if the federal funding is not deemed "direct", the program is covered under Title IX because sex discrimination...

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