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Pederson v. Louisiana State Univ.

United States Court of Appeals for the Fifth Circuit

June 1, 2000, Decided

No. 94-30680, No. 95-30777, No. 96-30310, No. 97-30427, No. 97-30719

Opinion

ON PETITION FOR REHEARING AND SUGGESTION FOR REHEARING EN BANC

 [*863]  CARL E. STEWART, Circuit Judge:

The original opinion in [**2]  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.

 [*864]  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.

 [**3] 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. 2 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)  [**4]  ("Davis"), and the individual members of the LSU Board of Supervisors (in their official capacities only) (collectively, "Appellees"). 3

 [**5]  Subsequently, plaintiffs Cindy and Karla Pineda ("Pineda Plaintiffs" and, together with Pederson Plaintiffs, "Appellants") sought to intervene in the original action. 4 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.

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213 F.3d 858 *; 2000 U.S. App. LEXIS 12019 **; 46 Fed. R. Serv. 3d (Callaghan) 1254

BETH PEDERSON; LISA OLLAR; SAMANTHA CLARK, Individually and on behalf of all others similarly situated, Plaintiffs-Appellants, versus 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, versus 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, versus 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, versus 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. BETH PEDERSON; LISA OLLAR; SAMANTHA CLARK, Individually and on behalf of all others similarly situated, Plaintiffs-Appellants, CINDY PINEDA; KARLA PINEDA, Plaintiffs-Appellants-Appellees, versus 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.

Prior History:  [**1]  Appeals from the United States District Court for the Middle District of Louisiana.

This Opinion Substituted on Partial Grant of Rehearing for Vacated Opinion of January 27, 2000, Previously Reported at: 2000 U.S. App. LEXIS 990.

Disposition: Petition for en banc rehearing DENIED. Petition for panel rehearing GRANTED to extent that previous opinion VACATED and replaced. In all other respects, petition for rehearing DENIED. Nos. 94-30680 and 95-30777 DISMISSED. AFFIRMED order appealed from in No. 97-30427. With regard to Nos. 97-30719 and 97-30722, VACATED order approving LSU's Compliance Plan with instructions. With regard to final judgment appealed from in 97-30744 and 97-30781, and opinion appealed from in 96-30310, AFFIRMED in part, REVERSED in part, VACATED in part, and REMANDED in part with instructions. All motions carried with case DENIED.

CORE TERMS

district court, athletics, varsity, moot, team, accommodation, numerosity, female student, Compliance, female, discriminated, soccer, softball, sports, injunctive relief, sex, fast-pitch, putative class, effective, intercollegiate, intentionally, recipient, immunity, named plaintiff, funding, merits, sovereign immunity, Plaintiffs', decertify, intentional discrimination

Civil Procedure, Appeals, Standards of Review, Abuse of Discretion, Special Proceedings, Class Actions, Appellate Review, Certification of Classes, Judicial Discretion, Prerequisites for Class Action, General Overview, Responses, Defenses, Demurrers & Objections, Numerosity, Clearly Erroneous Review, De Novo Review, Justiciability, Standing, Trademark Law, Similarity of Marks, Appearance, Meaning & Sound, Mootness, Preliminary Considerations, Personal Stake, Education Law, Gender & Sex Discrimination, Title IX, Proof of Discrimination, Remedies, Injury in Fact, Constitutional Law, Case or Controversy, Scope of Title IX, The Judiciary, Case & Controversy Requirements, Class Members, Named Members, Remedies, Damages, Monetary Damages, Voluntary Cessation Exception, Business & Corporate Compliance, Protection of Rights, Federally Assisted Programs, Civil Rights Act of 1964, Federal & State Interrelationships, State Sovereign Immunity, State Immunity, Federal Judicial Limitations, Defenses, Governments, State & Territorial Governments, Claims By & Against, Immunities From Liability, Departments of Education, US Department of Education, US Department of Education Authority, Waiver, Civil Rights Law, Immunity From Liability, Congressional Duties & Powers, Spending & Taxation, Federal Assistance, Preclusion of Judgments, Full Faith & Credit, Judgments, Enforcement of Title IX, Administrative Law, Agency Rulemaking, Athletics, Local Governments, Finance, Administration & Operation, Student Financial Aid, Athletic Scholarships, Legislation, Overbreadth, Labor & Employment Law, Scope & Definitions, Criminal Law & Procedure, Crimes Against Persons, Coercion & Harassment, Elements, Discrimination in Schools, Sexual Harassment, Sexual Harassment, Civil Liability, Harassment, Misconduct & Performance, Sexual Misconduct, Harassment, Relief From Judgments