Fryberger v. Univ. of Ark.

Citation889 F.3d 471
Decision Date02 May 2018
Docket NumberNo. 16-4505,16-4505
Parties Elizabeth FRYBERGER, Plaintiff–Appellee USA, Intervenor v. UNIVERSITY OF ARKANSAS; Board of Trustees of the University of Arkansas, Defendants–Appellants 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)
CourtUnited States Courts of Appeals. United States Court of Appeals (8th Circuit)

889 F.3d 471

Elizabeth FRYBERGER, Plaintiff–Appellee

USA, Intervenor
v.
UNIVERSITY OF ARKANSAS; Board of Trustees of the University of Arkansas, Defendants–Appellants

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)

No. 16-4505

United States Court of Appeals, Eighth Circuit.

Submitted: February 13, 2018
Filed: May 2, 2018


Counsel who presented argument on behalf of the appellant and appeared on the brief was David A. Curran, of Little Rock, AR. The following attorney(s) appeared on the appellant brief; Carmine Joseph Cordi, Jr., of Fayetteville, AR., Matthew Blayne McCoy, of Fayetteville, AR.

Counsel who presented argument on behalf of the appellee and appeared on the brief was Mason Boling, of Rogers, AR. The following attorney(s) appeared on the appellee brief; George McAllaster Rozzell, of Rogers, AR.

The following attorney(s) appeared on the intervenor brief filed by the United States; Tovah Calderon, of Washington, DC., Francesca Lina Procaccini, of Washington, D.C.

The following attorney(s) appeared on the amicus brief of the States of Arizona, Arkansas, Kansas, Louisiana, Nebraska, South Carolina and Texas,; Patrick E. Hollingsworth, AAG, of Little Rock, AR., Lee P. Rudofsky, Arkansas Solicitor General, of Little Rock, AR.

The following attorney(s) appeared on the amicus brief of the Equal Rights Advocates; Rebecca Peterson–Fisher, of San Francisco, CA.

Before LOKEN, BENTON, and ERICKSON, Circuit Judges.

BENTON, Circuit Judge.

Elizabeth Fryberger sued the University of Arkansas and its Board of Trustees.

889 F.3d 473

The district court1 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, 112 S.Ct. 1028, 117 L.Ed.2d 208 (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, 113 S.Ct. 684, 121 L.Ed.2d 605 (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, 110 S.Ct. 1868, 109 L.Ed.2d 264 (1990), quoting Pennhurst State Sch. & Hosp. v. Halderman , 465 U.S. 89, 100, 104 S.Ct. 900, 79 L.Ed.2d 67 (1984). "A State, however, may choose to waive its immunity in federal court at its pleasure." Sossamon v. Texas , 563 U.S. 277, 284, 131 S.Ct. 1651, 179 L.Ed.2d 700 (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, 119 S.Ct. 2219, 144 L.Ed.2d 605 (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, 131 S.Ct. 1651, quoting Pennhurst , 465 U.S. at 99, 104 S.Ct. 900. "Only by requiring this ‘clear declaration’ by the State can we be ‘certain that the State in fact consents to suit.’ " Id. at 284, 131 S.Ct. 1651, quoting College Sav. , 527 U.S. at 680, 119 S.Ct. 2219.

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

889 F.3d 474

Title IX or the Remedies Equalization amendment under the Spending Clause. See Sossamon , 563 U.S. at 282 n.1, 131 S.Ct. 1651 (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, 131 S.Ct. 1651 ("[ Section 2000d–7(a)(1) ] expressly waives state sovereign immunity for violations of ... title IX...."); Lane v. Pena , 518 U.S. 187, 200, 116 S.Ct. 2092, 135 L.Ed.2d 486 (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 Title IX claims, see 42 U.S.C. § 2000d–7(a)(1)...."), citing Egerdahl v. Hibbing Cmty. Coll. , 72 F.3d 615, 619 (8th Cir. 1995).

The University contends, however, that this consent does not extend to the only relief sought by Fryberger, damages in a Title IX suit. The University relies on Sossamon . There, the Supreme Court reaffirmed that "a waiver of sovereign immunity ‘will be strictly construed, in terms of its scope, in favor of the sovereign.’ " Sossamon , 563 U.S. at 285, 131 S.Ct. 1651, quoting Lane , 518 U.S. at 192, 116 S.Ct. 2092. Accordingly, "a waiver of sovereign immunity to other types of relief does not waive immunity to damages." Id. (alteration in original), quoting Lane , 518 U.S. at 192, 116 S.Ct. 2092. "The question ... is ... whether Congress has given clear direction that it intends to include a damages remedy. The text must ‘establish unambiguously that the waiver extends to monetary claims.’ " Id. at 289, 131 S.Ct. 1651, quoting United States v. Nordic Village , 503 U.S. 30, 34, 112 S.Ct. 1011, 117 L.Ed.2d 181 (1992).

The Court in Sossamon addressed the waiver provision in the Religious Land Use and Institutionalized Persons Act of 2000 (RLUIPA). Id. at 280, 131 S.Ct. 1651. That waiver says, "A person may assert a violation of [RLUIPA] as a claim or defense in a judicial proceeding and obtain appropriate relief against a government." Id. at 282, 131 S.Ct. 1651 (alteration in original), quoting 42 U.S.C. § 2000cc–2(a) . The Court held that "appropriate relief" does not unambiguously include damages. Id. at 285, 131 S.Ct. 1651. Strictly construing the waiver in favor of the sovereign, the Court said, " ‘Appropriate relief’ does not so clearly and unambiguously waive sovereign immunity to private suits for damages that we can ‘be certain that the State in fact consents’ to such a suit."

889 F.3d 475

Id....

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