889 F.3d 471 (8th Cir. 2018), 16-4505, Fryberger v. University of Arkansas

Docket Nº:16-4505
Citation:889 F.3d 471
Opinion Judge:BENTON, Circuit Judge.
Party Name: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 ...
Attorney: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...
Judge Panel:Before LOKEN, BENTON, and ERICKSON, Circuit Judges.
Case Date:May 02, 2018
Court:United States Courts of Appeals, Court of Appeals for the Eighth Circuit
SUMMARY

The Eighth Circuit affirmed the district court's denial in part of the University's motion to dismiss an action alleging violations of Title IX of the Education Amendments of 1972. The district court refused to dismiss the Title IX claims on the basis of sovereign immunity. The court agreed that the University waived its sovereign immunity under the Remedies Equalization amendment by accepting... (see full summary)

 
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Page 471

889 F.3d 471 (8th Cir. 2018)

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

May 2, 2018

Submitted: February 13, 2018

Page 472

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

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.

OPINION

BENTON, Circuit Judge.

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

Page 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...

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