Brzonkala v. Virginia Polytechnic Institute and State University, Nos. 96-1814

• Court: United States Courts of Appeals. United States Court of Appeals (4th Circuit)
• Writing for the Court: Before HALL, LUTTIG, and MOTZ; DIANA GRIBBON MOTZ; LUTTIG
• Citation: 132 F.3d 949
• Docket Number: 96-2316,Nos. 96-1814
• Decision Date: 23 December 1997
• Parties: 122 Ed. Law Rep. 1193 Christy BRZONKALA, Plaintiff-Appellant, v. VIRGINIA POLYTECHNIC INSTITUTE AND STATE UNIVERSITY; Antonio J. Morrison; James Landale Crawford, Defendants-Appellees, and Cornell D. Brown; William E. Landsidle, in his capacity as Comptroller of the Commonwealth, Defendants. Law Professors; Virginians Aligned Against Sexual Assault; The Anti-Defamation League; Center for Women Policy Studies; The Dc Rape Crisis Center; Equal Rights Advocates; The Georgetown University Law Center Sex Discrimination Clinic; Jewish Women International; The National Alliance of Sexual Assault Coalitions; The National Coalition Against Domestic Violence; The National Coalition Against Sexual Assault; The National Network to End Domestic Violence; National Organization for Women; Northwest Women's Law Center; The Pennsylvania Coalition Against Domestic Violence, Incorporated; Virginia National Organization for Women; Virginia NOW Legal Defense and Education Fund, Incorporated; Women Employed; Women's Law Project; Women's Legal Defense Fund; Independent Women's Forum; Women's Freedom Network, Amici Curiae. UNITED STATES of America, Intervenor-Appellant, and Christy Brzonkala, Plaintiff, v. Antonio J. MORRISON; James Landale Crawford, Defendants-Appellees, and Virginia Polytechnic Institute and State University; Cornell D. Brown; William E. Landsidle, in his capacity as Comptroller of the Commonwealth, Defendants. Law Professors; Virginians Aligned Against Sexual Assault; The Anti-Defamation League; Center for Women Policy Studies; The DC Rape Crisis Center; Equal Rights Advocates; The Georgetown University Law Center Sex Discrimination Clinic; Jewish Women International; The National Alliance of Sexual Assault Coalitions; The National Coalition Against Domestic Violence; The National Coalition Against Sexual Assault; The National Network to End Domestic Violence; National Organization for Women; Northwest Women's Law Center; The Pennsylvania Coalition Against Domestic Viol

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132 F.3d 949 122 Ed. Law Rep. 1193 Christy BRZONKALA, Plaintiff-Appellant,
v.
VIRGINIA POLYTECHNIC INSTITUTE AND STATE UNIVERSITY;
Antonio J. Morrison; James Landale Crawford,
Defendants-Appellees,
and
Cornell D. Brown; William E. Landsidle, in his capacity as
Comptroller of the Commonwealth, Defendants.
Law Professors; Virginians Aligned Against Sexual Assault;
The Anti-Defamation League; Center for Women Policy
Studies; The Dc Rape Crisis Center; Equal Rights
Advocates; The Georgetown University Law Center Sex
Discrimination Clinic; Jewish Women International; The
National Alliance of Sexual Assault Coalitions; The
National Coalition Against Domestic Violence; The National
Coalition Against Sexual Assault; The National Network to
End Domestic Violence; National Organization for Women;
Northwest Women's Law Center; The Pennsylvania Coalition
Against Domestic Violence, Incorporated; Virginia National
Organization for Women; Virginia NOW Legal Defense and
Education Fund, Incorporated; Women Employed; Women's Law
Project; Women's Legal Defense Fund; Independent Women's
Forum; Women's Freedom Network, Amici Curiae.
UNITED STATES of America, Intervenor-Appellant,
and
Christy Brzonkala, Plaintiff,
v.
Antonio J. MORRISON; James Landale Crawford, Defendants-Appellees,
and
Virginia Polytechnic Institute and State University;
Cornell D. Brown; William E. Landsidle, in his
capacity as Comptroller of the
Commonwealth, Defendants.
Law Professors; Virginians Aligned Against Sexual Assault;
The Anti-Defamation League; Center for Women Policy
Studies; The DC Rape Crisis Center; Equal Rights
Advocates; The Georgetown University Law Center Sex
Discrimination Clinic; Jewish Women International; The
National Alliance of Sexual Assault Coalitions; The
National Coalition Against Domestic Violence; The National
Coalition Against Sexual Assault; The National Network to
End Domestic Violence; National Organization for Women;
Northwest Women's Law Center; The Pennsylvania Coalition
Against Domestic Violence, Incorporated; Virginia National
Organization for Women; Virginia NOW Legal Defense and
Education Fund, Incorporated; Women Employed; Women's Law
Project; Women's Legal Defense Fund; Independent Women's
Forum; Women's Freedom Network, Amici Curiae. Nos. 96-1814, 96-2316. United States Court of Appeals,
Fourth Circuit. Argued June 4, 1997.
Decided Dec. 23, 1997.

Page 952

ARGUED: Julie Goldscheid, NOW Legal Defense and Education Fund, New York City; Deborah L. Brake, National Women's Law Center, Washington, DC; Mark Bernard Stern, Appellate Staff, Civil Division, United States Department of Justice, Washington, DC, for Appellants. Kay Heidbreder, Associate General Counsel/Special Assistant Attorney General, Virginia Polytechnic Institute and State University, Blacksburg, Virginia; Michael E. Rosman, Center for Individual Rights, Washington, DC, for Appellees. ON BRIEF: Martha F. Davis, NOW Legal Defense and Education Fund, New York City; Eileen N. Wagner, Richmond, VA, for Appellant Brzonkala; Frank W. Hunger, Assistant Attorney General, Robert P. Crouch, Jr., United States Attorney, Stephen W. Preston, Deputy Assistant Attorney General, Alisa B. Klein, Anne M. Lobell, Appellate Staff, Civil Division, United States Department of Justice, Washington, DC, for Appellant United States. Jerry D. Cain, General Counsel/Special Assistant Attorney General, Virginia Polytechnic Institute and State University, Blacksburg, VA; James S. Gilmore, III, Attorney General of Virginia, William H. Hurd, Deputy Attorney General, Office of the Attorney General, Richmond, VA, for Appellee VPI. Hans F. Bader, Center for Individual Rights, Washington, DC; W. David Paxton, M. Christina Floyd, Gentry, Locke, Rakes & Moore, Roanoke, VA, for Appellee Morrison; Joseph Graham Painter, Jr., Painter, Kratman, Pethybridge, Swindell & Crenshaw, Blacksburg, VA, for Appellee Crawford. Sara D. Schotland, Amy W. Schulman, Cleary, Gottlieb, Steen & Hamilton, Washington, DC, for Amicus Curiae Law Professors. Janice Redinger, Virginians Aligned Against Sexual Assault, Charlottesville, VA; Minna J. Kotkin, Sara Kay, Federal Litigation Program, BLS Legal Services Corporation, Brooklyn, NY, for Amici Curiae Virginians Aligned Against Sexual Assault, et al. E. Duncan Getchell, Jr., J. William Boland, Robert L. Hodges, McGuire, Woods, Battle & Boothe, L.L.P., Richmond, VA, for Amicus Curiae Independent Women's Forum. Michael D. Weiss, Lawson, Weiss & Danziger, Houston, TX, for Amicus Curiae Women's Freedom Network.

Before HALL, LUTTIG, and MOTZ, Circuit Judges.

Reversed and remanded by published opinion. Judge MOTZ wrote the majority opinion, in which Judge HALL joined. Judge LUTTIG wrote a dissenting opinion.

OPINION

DIANA GRIBBON MOTZ, Circuit Judge:

This case arises from the gang rape of a freshman at the Virginia Polytechnic Institute by two members of the college football team, and the school's decision to impose only a nominal punishment on the rapists.

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The victim alleges that these rapes were motivated by her assailants' discriminatory animus toward women and sues them pursuant to the Violence Against Women Act of 1994. She asserts that the university knew of the brutal attacks she received and yet failed to take any meaningful action to punish her offenders or protect her, but instead permitted a sexually hostile environment to flourish; she sues the university under Title IX of the Education Amendments of 1972. The district court dismissed the case in its entirety. The court held that the complaint failed to state a claim under Title IX and that Congress lacked constitutional authority to enact the Violence Against Women Act. Because we believe that the complaint states a claim under Title IX and that the Commerce Clause provides Congress with authority to enact the Violence Against Women Act, we reverse and remand for further proceedings.

I.

Christy Brzonkala entered Virginia Polytechnic Institute ("Virginia Tech") as a freshman in the fall of 1994. ¹ On the evening of September 21, 1994, Brzonkala and another female student met two men who Brzonkala knew only by their first names and their status as members of the Virginia Tech football team. Within thirty minutes of first meeting Brzonkala, these two men, later identified as Antonio Morrison and James Crawford, raped her.

Brzonkala and her friend met Morrison and Crawford on the third floor of the dormitory where Brzonkala lived. All four students talked for approximately fifteen minutes in a student dormitory room. Brzonkala's friend and Crawford then left the room.

Morrison immediately asked Brzonkala if she would have sexual intercourse with him. She twice told Morrison "no," but Morrison was not deterred. As Brzonkala got up to leave the room Morrison grabbed her, and threw her, face-up, on a bed. He pushed her down by the shoulders and disrobed her. Morrison turned off the lights, used his arms to pin down her elbows and pressed his knees against her legs. Brzonkala struggled and attempted to push Morrison off, but to no avail. Without using a condom, Morrison forcibly raped her.

Before Brzonkala could recover, Crawford came into the room and exchanged places with Morrison. Crawford also raped Brzonkala by holding down her arms and using his knees to pin her legs open. He, too, used no condom. When Crawford was finished, Morrison raped her for a third time, again holding her down and again without a condom.

When Morrison had finished with Brzonkala, he warned her "You better not have any fucking diseases." In the months following the rape, Morrison announced publicly in the dormitory's dining room that he "like[d] to get girls drunk and fuck the shit out of them."

Following the assault Brzonkala's behavior changed radically. She became depressed and avoided contact with her classmates and residents of her dormitory. She changed her appearance and cut off her long hair. She ceased attending classes and eventually attempted suicide. She sought assistance from a Virginia Tech psychiatrist, who treated her and prescribed anti-depressant medication. Neither the psychiatrist nor any other Virginia Tech employee or official made more than a cursory inquiry into the cause of Brzonkala's distress. She later sought and received a retroactive withdrawal from Virginia Tech for the 1994-95 academic year because of the trauma.

Approximately a month after Morrison and Crawford assaulted Brzonkala, she confided in her roommate that she had been raped, but could not bring herself to discuss the details. It was not until February 1995, however, that Brzonkala was able to identify Morrison and Crawford as the two men who had raped her. Two months later, she filed a complaint against them under Virginia Tech's Sexual Assault Policy, which was published in the Virginia Tech "University Policies for Student Life 1994-1995." These policies had

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been formally released for dissemination to students on July 1, 1994, but had not been widely distributed to students. After Brzonkala filed her complaint under the Sexual Assault Policy she learned that another male student athlete was overheard advising Crawford that he should have "killed the bitch."

Brzonkala did not pursue criminal charges against Morrison or Crawford, believing that criminal prosecution was impossible because she had not preserved any physical evidence of the rape. Virginia Tech did not report the rapes to the police, and did not urge Brzonkala to reconsider her decision not to do so. Rape of a female student by a male student is the only violent felony that Virginia Tech authorities do not automatically report to the university or town police.

Virginia Tech held a hearing in May 1995 on Brzonkala's complaint against Morrison and Crawford. At the beginning of the hearing, which was taped and lasted three hours, the presiding college official announced that the charges were being brought under the school's Abusive...