Doe v. University of Illinois

Page 653

138 F.3d 653

124 Ed. Law Rep. 812

Jane DOE, a minor, John Doe, individually and as father and

next friend of Jane Doe, and Janet Doe,

individually and as mother and next

friend of Jane Doe, Plaintiffs-Appellees, United States of America, Intervening Appellee, v. UNIVERSITY OF ILLINOIS, a public corporation, Defendant-Appellant.

Jane DOE, a minor, John Doe, individually and as father and

next friend of Jane Doe, and JANET DOE,

individually and as mother and next

friend of Jane Doe, Plaintiffs-Appellants, v. UNIVERSITY OF ILLINOIS, a public corporation, Defendant-Appellee.

Nos. 96-3511, 96-4148.

United States Court of Appeals Seventh Circuit.

Argued Sept. 3, 1997.

Decided March 3, 1998.

Rehearing and Suggestion for Rehearing En Banc Denied April 14, 1998.

Sheryl Jaffe Halpern (argued), Patzik, Frank & Samotny Ltd., Chicago, IL, for Jane Doe, John Doe, and Janet Doe.

Carla J. Rozycki (argued), Julia H. Perkins, Jenner & Block, Chicago, IL, Norma W. Zeitler, McDermott, Will & Emery, Chicago, IL, for University of Illinois.

Jessica Dunsay Silver, Seth M. Galanter (argued), Department of Justice, Civil Rights Division, Appellate Section, Washington, DC, for United States of America.

Martha F. Davis, New York City, for Legal Defense and Education Fund, ACLU

Women's Rights Project, Equal Rights Advocates, National Women's Law Center, Texas Civil Rights Project, and Women's Legal Defense Fund.

Carla J. Rozycki (argued), Jenner & Block, Chicago, IL, Norma W. Zeitler, McDermott, Will & Emery, Chicago, IL, for Alice D. Davis-Smith, Joel Crames, Henry Meares, and Barbara L. Wysocki, in No. 96-4148.

Before CUMMINGS, COFFEY and EVANS, Circuit Judges. ^*

CUMMINGS, Circuit Judge.

Appellee/cross-appellant Jane Doe was a student at University High School in Urbana, Illinois. ¹ Although University High is a public school, it is affiliated with the defendant University of Illinois, which has responsibility for overseeing the school's administration. During a period from January 1993 through early May 1994, while a student at University High, Jane Doe was the victim of an ongoing campaign of verbal and physical sexual harassment perpetrated by a group of male students at the school. Doe and her parents complained on numerous occasions to officials of both the high school (including two successive school Principals, a counselor, the Assistant Director, and the person appointed as intake officer for sexual harassment complaints) and the University of Illinois (including two Vice Chancellors, two University police officials, the Ombudsperson, and the liaison person between the University and the high school), but those officials allegedly did not do nearly enough to combat the harassment.

Because the sufficiency of Doe's allegations of sexual harassment is not at issue on this appeal, it is not necessary to describe in detail the campaign of harassment and intimidation to which she was subjected by the self-styled "posse" of male students. It is enough to note here that according to the Magistrate Judge's Report and Recommendations, the male students' conduct included unwanted touching, epithets, and the deliberate exposure of one student's genitals in front of Doe. Although school officials did suspend two of the male students for ten days and transfer one student out of Doe's biology class, Doe claims that the school and the University took little or no meaningful action to punish the sexual harassment or to prevent further occurrences. Indeed, the complaint alleges that some administrators suggested to Doe that she herself was to blame for the harassment, and that it was she who ought to adjust her behavior in order to make it stop. On one occasion, University High's Assistant Director told Doe and two of her friends to start acting like "normal females" and scolded them for making allegations of harassment that might injure some of the male students' futures. Ultimately, Jane Doe's parents removed her from the school as a result of the campaign of harassment and sent her to a private high school in another state.

On May 24, 1995, Doe and her parents filed this suit against the University of Illinois and various individual officials of University High and the University of Illinois. They alleged violations of 20 U.S.C. §§ 1681 et seq. (Title IX) and of 42 U.S.C. § 1983, and sought damages under the Illinois Family Expense Statute, 750 ILCS 65/15. After the plaintiffs voluntarily dismissed certain claims, Magistrate Judge David G. Bernthal entertained the defendants' motion to dismiss all of the remaining claims pursuant to Federal Rules of Civil Procedure 12(b)(1) and 12(b)(6). In a lengthy Report and Recommendations, he recommended that all of the remaining claims be dismissed. He further recommended that Jane Doe be granted leave to refile her claim against the University of Illinois for intentional sexual discrimination in violation of Title IX, but that all other claims be dismissed with prejudice.

In an order dated March 29, 1996, Chief Judge Mihm adopted the Magistrate Judge's Report and Recommendations and dismissed all claims, allowing Doe leave to refile her individual Title IX claim against the University.

On April 12, 1996, the University requested that the district court reconsider its decision to allow Doe to replead the Title IX claim, in light of the United States Supreme Court's decision in Seminole Tribe of Florida v. Florida, 517 U.S. 44, 116 S.Ct. 1114, 134 L.Ed.2d 252 (1996), which had been made public on March 27, 1996. The University's motion for reconsideration asserted for the first time ² that the Title IX claim against the University was barred by the Eleventh Amendment to the United States Constitution, because Title IX did not validly abrogate the States' (and thus the University's) sovereign immunity from suit. The district court denied the University's motion for reconsideration on September 25, 1996, holding that both Title IX and the statute that expressly subjected States to suit for violations of Title IX were enacted at least in part pursuant to Congress' powers under Section 5 of the Fourteenth Amendment, and therefore that Congress validly abrogated the States' sovereign immunity with respect to Title IX suits.

The University appeals the district court's rejection of its Eleventh Amendment defense. Plaintiff Jane Doe also appeals the court's dismissal of her Title IX claim against the University pursuant to Federal Rule of Civil Procedure 12(b)(6). On Doe's motion, the two appeals were consolidated. For the reasons set forth below, this Court affirms the district court's holding with respect to the University's Eleventh Amendment defense and reverses the court's holding with respect to Jane Doe's Title IX claim.

I. THE ELEVENTH AMENDMENT IMMUNITY ISSUE

The Eleventh Amendment provides, "The Judicial power of the United States shall not be construed to extend to any suit in law or equity, commenced or prosecuted against one of the United States by Citizens of another State, or by Citizens or Subjects of any Foreign State." The University argues that it is immune from federal court suits under Title IX because it has not consented to such suits, and Congress has not validly abrogated its Eleventh Amendment immunity in the context of Title IX. The district court disagreed, holding in its denial of the University's motion for reconsideration that Congress, in enacting Title IX and rendering it enforceable against the States (via the Equal Rights Remedies Equalization Act ("Equalization Act"), 42 U.S.C. § 2000d-7), had unequivocally and validly abrogated the States' sovereign immunity with regard to suits under Title IX. ³

A. The Eleventh Amendment's Application to Federal Question Suits

Jane Doe argues in response to the University's immunity claim that the Eleventh Amendment does not give States immunity from federal question suits. Doe observes that the explicit text of the Amendment mentions only suits brought against a State by citizens of another State or of a foreign country. Based on this literal reading of the Amendment and a number of dissenting and concurring Supreme Court opinions, Doe urges this Court to hold that Eleventh Amendment immunity is not present in this case, which involves a federal question suit by a citizen of Illinois against the University of Illinois. Even were this Court inclined so to hold, however, it would not be free to do so. In Seminole Tribe of Florida v. Florida, 517 U.S. 44, 53-54, 116 S.Ct. 1114, 1122, 134 L.Ed.2d 252, the Supreme Court reiterated its view that the Eleventh Amendment extends beyond its literal language to give the States sovereign immunity against all suits by individuals for damages. See id. at 53-54, 116 S.Ct. 1114 at 1122 (citing Hans v. Louisiana, 134 U.S. 1, 10 S.Ct. 504, 33 L.Ed. 842 (1998)); but see Seminole Tribe, 517 U.S. at 83-85, 116 S.Ct. at 1137 (Stevens, J., dissenting) (arguing that Hans did not hold suits by citizens of the State to be sued barred by the Eleventh Amendment); id. at 101-03, 116 S.Ct. at 1146 (Souter, J., dissenting) (stating that Hans was incorrectly decided and that the Eleventh Amendment bars only diversity suits against States). Doe's contention that the Eleventh Amendment does not apply in this case is therefore without merit.

B. Abrogation of Eleventh Amendment Immunity

Congress may abrogate States' Eleventh Amendment immunity if it both unequivocally expresses its intent to do so and acts pursuant to a valid exercise of power. Seminole Tribe, 517 U.S. at 54-56, 116 S.Ct. at 1123. The University concedes, as it must, that Title IX and the Equalization Act, read together, unequivocally state Congress' intent to abrogate the States' Eleventh Amendment immunity, so the dispute centers around whether Congress acted pursuant to a valid exercise of power.

In Seminole Tribe, the Supreme Court held that the Indian Commerce Clause of the Constitution (art. I, § 8, cl.3) does not...