Pederson v. LA State University , 213 F.3d 858 ( 2000 )


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  •               IN THE UNITED STATES COURT OF APPEALS
                          FOR THE FIFTH CIRCUIT
    
    
    
                                 No. 94-30680
    
    
    
    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.
    
    
    
                                 No. 95-30777
    
    
    
    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.
    
    
    
    
                                 No. 96-30310
    
    
    
    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.
    
    
    
    
                                 No. 97-30427
    
    
    
    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.;
    
    
                                      2
    JOSEPH L. WAITZ; CHARLES S. WEEMS, III; JOHN R. WILLIAMS; MILTON
    J. WOMACK; ALL DEFENDANTS
    
                                                    Defendants-Appellants.
    
    
                                 No. 97-30719
    
    
    
    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.
    
    
    
              Appeals from the United States District Court
                   for the Middle District of Louisiana
    
                            January 27, 2000
    
    Before KING, Chief Judge, and STEWART, Circuit Judge, and LITTLE,
    District Judge.*
    
    CARL E. STEWART, Circuit Judge:
    
         We must today determine whether the largest public university
    
    in Louisiana has discriminated against women under Title IX in the
    
         *
           District Judge of the Western District of Louisiana,
    sitting by designation.
    
                                      3
    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.
    
                           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.1                       The Pederson
    
          1
           Pederson, Ollar, and Clark all play soccer. Pederson
    enrolled at LSU beginning in the autumn term of 1992. Ollar
    enrolled at LSU beginning with the autumn term of 1990. Clark
    
                                               4
    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)
    
    (“Davis”),   and   the    individual       members    of   the    LSU     Board   of
    
    Supervisors (in their official capacities only) (collectively,
    
    “Appellees”).2
    
         Subsequently,   plaintiffs        Cindy    and   Karla      Pineda    (“Pineda
    
    Plaintiffs” and, together with Pederson Plaintiffs, “Appellants”)
    
    sought to intervene in the original action.3                      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
    
    
    enrolled at LSU beginning in the autumn term of 1990 through
    December 1994. The district court found that, when LSU
    implemented a soccer team in the autumn term of 1995, Pederson
    tried out for and made the team but ultimately did not
    participate because of financial difficulties and lack of
    necessary skill, and Ollar and Clark did not participate because
    they had no remaining college eligibility.
         2
           An exhaustive summary of the facts underlying this case
    and a more thorough procedural history may be found at Pederson
    v. Louisiana State Univ., 
    912 F. Supp. 892
    , 897-902 (M.D. La.
    1996). In this opinion, we repeat only those aspects of the case
    necessary to our disposition and refer the reader to the district
    court’s opinion for a fuller record of the events.
         3
           The Pineda Plaintiffs play fast-pitch softball. Cindy and
    Karla Pineda both enrolled at LSU beginning in the Autumn of
    1992. When LSU implemented a softball team at the intramural
    level, Karla participated in the league. When LSU implemented a
    varsity fast-pitch softball team for the 1996-97 season, Cindy
    tried out for and made the team as a scholarship player.
    
                                           5
    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.
    
         In the course of the litigation, the district court denied
    
    Appellants’ motions for preliminary injunctions.   On September 14,
    
    1995, it granted Appellees’ motion for partial summary judgment,
    
    dismissing for lack of standing Appellants’ claims for equal
    
    treatment in the areas of coaches’ salaries, budgets, facilities,
    
    training, and travel, on the ground that Appellants could not
    
    demonstrate injury-in-fact related to existing varsity athletic
    
    programs in which they had never sought to participate.4    On the
    
    same date, the district court dismissed Appellants’ 42 U.S.C. §
    
    1983 claims against defendants Davis and Dean in their individual
    
    
         4
           Alleged violations of Title IX in the area of athletics
    are often divided into effective accommodation claims and equal
    treatment claims. The distinction is derived from the
    regulations promulgated under Title IX. Effective accommodation
    claims correspond to the portion of the implementing regulations
    that
    
      provide that in determining whether equal athletic
      opportunities for members of both sexes are available, the
      Office of Civil Rights of the Department of Education (the
      office charged with enforcement of Title IX) will consider,
      among other factors, “[w]hether the selection of sports and
      levels of competition effectively accommodate the interests
      and abilities of members of both sexes.”
    
    Boucher v. Syracuse Univ., 
    164 F.3d 113
    , 115 n.1 (2d Cir. 1999)
    (quoting 34 C.F.R. § 106.41(c)(1)). Equal treatment claims
    “derive from the Title IX regulations found at 34 C.F.R. §§
    106.37(c) and 106.41(c)(2)-(10), which call for equal provision
    of athletic scholarships as well as equal provision of other
    athletic benefits and opportunities among the sexes.” Id. at 115
    n.2.
    
    
    
                                    6
    capacities on the basis of qualified immunity, and also dismissed
    
    the remaining § 1983 and Fourteenth Amendment claims. The district
    
    court also entered an order provisionally certifying the following
    
    class:
    
         Those female students enrolled at LSU since 1993 and any
         time thereafter who have sought or seek to participate in
         varsity intercollegiate athletics at LSU but who are or
         were not allowed such participation due to LSU’s failure
         to field teams in said female varsity athletics.
    
         The district court conducted trial on Appellants’ surviving
    
    claims from October 10, 1995, through November 8, 1995.   On January
    
    11, 1996, the district court entered an order decertifying the
    
    class because the numerosity requirement of Federal Rule of Civil
    
    Procedure 23(a) (“Rule 23(a)”) had not been met and because a class
    
    was not needed to obtain the requested relief.      On January 12,
    
    1996, the district court entered its opinion on the merits finding
    
    that Appellees were in violation of Title IX.      See Pederson v.
    
    Louisiana State Univ., 
    912 F. Supp. 892
    , 917 (M.D. La. 1996).    The
    
    district court ruled, however, that Appellees did not intentionally
    
    violate Title IX and therefore would not be liable for monetary
    
    damages.   The district court also dismissed the claims of the
    
    Pederson Plaintiffs for lack of standing.       As a result of its
    
    finding that Appellees were in violation of Title IX, the district
    
    court ordered Appellees to submit a plan for compliance with the
    
    statute (the “Compliance Plan”).
    
         The Pederson Plaintiffs filed a notice of appeal on January
    
    12, 1996 from the district court’s order.      The notice of appeal
    
    encompassed all prior district court orders.   On June 9, 1997, the
    
    
                                       7
    Pineda Plaintiffs filed a notice of appeal from the district
    
    court’s May 9, 1997 order approving the Compliance Plan.                      The
    
    notice of the appeal encompassed all prior district court orders.
    
    On July 24, 1997, Appellants collectively filed a notice of appeal
    
    from   the   final   judgment      entered    on   July   1,   1997.    In   this
    
    consolidated appeal, Appellants challenge the district court’s
    
    decision to decertify the class, the district court’s conclusion
    
    that Appellees did not intentionally violate Title IX, the district
    
    court’s decision to dismiss the Pederson Plaintiffs’ claims for
    
    lack   of    standing,    and     the   district   court’s      conclusion   that
    
    Appellants lacked standing to pursue their claims alleging a lack
    
    of equal treatment in existing LSU varsity sports.
    
           Prior to the entry of final judgment against Appellees, the
    
    Supreme Court decided Seminole Tribe v. Florida, 
    517 U.S. 44
    
    (1996). In their answer to both complaints, Appellees had pled the
    
    affirmative defense of Eleventh Amendment immunity.                 In light of
    
    Seminole Tribe, Appellees filed a Rule 12(b)(1) motion to dismiss
    
    on May 14, 1996, contending that Eleventh Amendment sovereign
    
    immunity deprived the court of subject matter jurisdiction.                    On
    
    March 4, 1997, the district court denied Appellees’ motion.                    On
    
    March 19, 1997, Appellees filed a notice of appeal of the district
    
    court’s     denial   of   their    12(b)(1)   motion.      On    June   9,   1997,
    
    Appellees appealed from the district court’s May 9, 1997 order
    
    approving the Compliance Plan.            The notice of appeal encompassed
    
    all of the district court’s earlier rulings, including the district
    
    court’s finding that LSU is or was in violation of Title IX.                   On
    
    
                                             8
    July 7, 1997, Appellees filed another notice of appeal from the
    
    final judgment entered on July 1, 1997.               On appeal, Appellees
    
    challenge the district court’s denial of their 12(b)(1) motion to
    
    dismiss, the district court’s conclusion that Appellees were in
    
    violation of Title IX, and the district court’s ordered injunctive
    
    relief on the ground that it is overbroad.
    
                                 II. Jurisdiction
    
          We begin our analysis by determining our jurisdiction to
    
    entertain these appeals. We must address the jurisdictional issues
    
    of   standing,   mootness,    state       sovereign   immunity,    and   class
    
    certification; we address these issues in no particular order.5            We
    
    proceed, first, by reviewing the district court’s decision to
    
    decertify the class it provisionally certified on September 14,
    
    1995.     Next, with regard to standing, we determine whether the
    
    district court correctly determined that the Pederson Plaintiffs
    
    lacked standing to pursue their claims and whether it correctly
    
    determined that Appellants lacked standing to pursue their claims
    
    of unequal treatment in existing varsity sports at LSU.             Third, we
    
    examine Appellees’ contentions regarding mootness.                Finally, we
    
          5
           When questions of both Article III jurisdiction and class
    certification are presented, the class certification questions,
    at times, “should be treated first because class certification
    issues are ‘logically antecedent’ to Article III concerns and
    pertain to statutory standing, which may properly be treated
    before Article III standing.” Ortiz v. Fibreboard Corp., 119 S.
    Ct. 2295, 2300 (1999) (quoting Amchem Products, Inc. v. Windsor,
    
    521 U.S. 591
    , 612 (1997) ) (internal citations omitted). Because
    the class certification issue presented here is not outcome
    determinative, as it was in both Ortiz and Amchem, it need not,
    in our minds, be treated first. We nonetheless begin by
    discussing the district court’s decertification of the putative
    class.
    
                                          9
    determine whether the doctrine of sovereign immunity bars suit in
    
    this case.
    
                            A. Class Decertification
    
    
    
         We review a district court’s class certification decisions for
    
    abuse of discretion.6    See Shipes v. Trinity Indus., 
    987 F.2d 311
    ,
    
    316 (5th Cir. 1993); Merrill v. Southern Methodist Univ., 
    806 F.2d 600
    , 607 (5th Cir. 1986).     “[T]he district court maintains great
    
    discretion in certifying and managing a class action.       We will
    
    reverse a district court's decision to certify a class only upon a
    
    showing that the court abused its discretion, or that it applied
    
    incorrect legal standards in reaching its decision.”      Mullen v.
    
    Treasure Chest Casino, LLC, 
    186 F.3d 620
    , 624 (5th Cir. 1999).   The
    
    decision to decertify a provisionally certified class is a class
    
    certification decision and, as such, is reviewed for abuse of
    
    discretion.   See Mooney v. Aramco Services Co., 
    54 F.3d 1207
    , 1212
    
    (5th Cir. 1995); Briggs v. Anderson, 
    796 F.2d 1009
    , 1017 (8th Cir.
    
    1986).
    
         In the district court, Appellants sought to certify the class
    
    of “all LSU women students enrolled at any time since February,
    
    1993 or who seek to enroll or become enrolled during the course of
    
    
         6
           We review the district court’s decertification of the
    class despite Appellees’ contentions that this action is moot as
    to Appellants. Even if that contention holds true, Appellants
    are the proper parties to contest the district court’s
    certification decisions regarding the putative class. See United
    States Parole Comm’n v. Geraghty, 
    445 U.S. 388
    , 404 (1980).
    Appellees also argue that the class claims are moot. We
    determine, infra, that they are not.
    
                                       10
    this litigation and who seek or have sought to participate and or
    
    were       deterred   from    participating       in   varsity     intercollegiate
    
    athletics funded by LSU.”7           Memorandum Ruling of Jan. 12, 1996, at
    
    1.     On     September   14,      1995,   the   district     court    provisionally
    
    certified      the    class   of    “[t]hose     who   have   sought    or   seek   to
    
    participate in varsity intercollegiate athletics at LSU but who are
    
    or were not allowed such participation due to LSU’s failure to
    
    field teams in said female varsity athletics.”                  Id. at 4.    At that
    
    time, the district court voiced its concern that the numerosity
    
    requirement of Rule 23(a) had not been met.                   The court stated:
    
           provisional certification will require plaintiffs, before
           judgment is rendered, to further support their assertion that
           the joinder of potential class members is impracticable. . . .
           In particular this Court is concerned that plaintiffs cannot
           show that one major argument on numerosity is causally weak,
           i.e. whether women who participate in intermurals [sic] at LSU
    
    
           7
           In order to maintain a class action, plaintiffs must first
    show that the four requirements Rule 23(a) have been met and,
    additionally, that one of the requirements of Rule 23(b) have
    been met. See FED. R. CIV. P. 23. The requirements of Rule 23(a)
    are
    
         (1) the class is so numerous that joinder of all members is
         impracticable, (2) there are questions of law or fact common
         to the class, (3) the claims or defenses of the
         representative parties are typical of the claims or defenses
         of the class, and (4) the representative parties will fairly
         and adequately protect the interests of the class.
    
    Id. 23(a). The district court initially certified a class under
    Rule 23(b)(2), which allows a class action if “the party opposing
    the class has acted or refused to act on grounds generally
    applicable to the class, thereby making appropriate final
    injunctive relief or corresponding declaratory relief with
    respect to the class as a whole.” Id. 23(b)(2). Appellants
    contend that they reserved the right to move for certification
    under Rule 23(b)(3), but the Appellees dispute this contention.
    We take no position on this debate because no appeal was filed
    with respect to the certification of a Rule 23(b)(3) class.
    
                                               11
         would have the ability or interests to compete at the varsity
         level at LSU.
    
    Memorandum Ruling of Sept. 14, 1995, at 10-11.             Following the close
    
    of evidence at trial, both sides briefed the issue of numerosity.
    
         Ultimately, the district court decertified the provisional
    
    class.   See Memorandum Ruling of Jan. 12, 1996, at 8-9.                   It stated
    
    that it had “cautioned plaintiffs’ counsel in its original ruling
    
    that the evidence presented on numerosity was not sufficient to
    
    uphold a class certification and granted plaintiffs the opportunity
    
    to bolster that information. [It] remain[ed] unconvinced that such
    
    numerosity exists.”8        Id. at 4-5.
    
         Appellants       challenge   the   decertification         of   the   putative
    
    class.    It    is    important   for   our    purposes    to    recognize     that
    
    Appellants do not challenge the district court’s redefinition of
    
    the putative class; they merely challenge the district court’s
    
    decision to decertify the redefined class.9               The precise question
    
    before us, therefore, is whether the district court abused its
    
    discretion     when    it   decertified,      on   the   grounds     of     lack   of
    
    
         8
           The district court then established “lack of necessity” as
    an alternative ground for decertifying the class. This court
    has, in the past, declined to decide whether necessity can play a
    role in class certification decisions. See Johnson v. City of
    Opelousas, 
    658 F.2d 1065
    , 1069-70 (5th Cir. 1981). We again
    decline to decide this question. We simply decide that, if
    indeed a necessity requirement exists, the substantial risk of
    mootness here created a necessity for class certification in this
    case, and the district court abused its discretion in finding no
    necessity for a class.
         9
           Appellants assert in their brief before this court a
    desire to represent the class they originally proposed to the
    district court, but they fail to challenge the district court’s
    redefinition of the putative class.
    
                                            12
    numerosity and lack of necessity, the class of “[t]hose female
    
    students enrolled at LSU since 1993 and any time thereafter who
    
    have sought or seek to participate in varsity intercollegiate
    
    athletics at LSU but who are or were not allowed such participation
    
    due    to    LSU’s    failure   to   field       teams    in    said   female   varsity
    
    athletics.”         Memorandum Ruling of Jan. 12, 1996, at 4.
    
           Appellants’ major contention appears to be that the evidence
    
    presented at trial clearly satisfied the numerosity requirement and
    
    that    the    district     court’s     decertification           order,    therefore,
    
    erroneously assessed that evidence.                  Appellants also attack the
    
    district court’s failure to make specific findings of fact in its
    
    memorandum ruling decertifying the putative class. See Appellants’
    
    Brief at 34-35 (“Although the District Court (contrary to Rules 23
    
    and 52) made no factual findings supporting its holding as to
    
    numerosity, the trial evidence clearly established the numerosity
    
    element.”).
    
           The    district     court     made   clear        that   its    decertification
    
    decision, in all aspects relevant to this discussion, rested on
    
    Appellants’         inability   to   satisfy       the    numerosity       requirement.
    
    Moreover,      in    its   September    14,      1995,     Memorandum      Ruling,   the
    
    district court explained that Appellants had failed to provide
    
    evidence that members of the intramural and club teams had the
    
    desire or ability to compete at the varsity level.                      Appellants are
    
    correct, however, that the district court failed to identify
    
    specific findings of fact to support its conclusion that the
    
    numerosity requirement had not been met.                   Both parties briefed the
    
    
                                                13
    numerosity issue following the close of evidence at trial.    These
    
    briefs detailed the evidence in favor of and against a conclusion
    
    that the numerosity prong of Rule 23(a) had been satisfied.   This
    
    same evidence is reiterated in the briefs prepared on appeal.
    
         At trial, Appellants established that a number of current LSU
    
    female students had a desire to try out for varsity soccer or fast-
    
    pitch softball.10   Appellees admit that eight people showed up for
    
    varsity soccer tryouts.    These eight, however, do not constitute
    
    the sum total of class members.   The class consists of all “female
    
    students enrolled at LSU since 1993 and any time thereafter” who
    
    wish to participate.   Plaintiffs established that, around the time
    
    of trial, well over 5,000 young women were playing soccer or fast-
    
    pitch softball at the high school level in Louisiana.    They also
    
    established that many former members of a Baton Rouge soccer club
    
    received scholarships to play intercollegiate soccer. As Appellees
    
    point out, these women, because they are not students at LSU, are
    
    not members of the putative class. However, considering the talent
    
    pool in Louisiana established by these figures and the number of
    
    LSU students who come from Louisiana, Appellants have established
    
    that numerous future female LSU students will desire to try out for
    
    varsity soccer and fast-pitch softball.   To satisfy the numerosity
    
    prong, “a plaintiff must ordinarily demonstrate some evidence or
    
    
         10
           Because we determine, infra, that to establish standing,
    an individual need only demonstrate that she is able and ready to
    compete for a position on the unfielded team, we do not focus, as
    the district court seems to have, on whether potential class
    members have the skill necessary to obtain a position on a
    varsity team.
    
                                      14
    reasonable estimate of the number of purported class members.”
    
    Zeidman v. J. Ray McDermott & Co., Inc., 
    651 F.2d 1030
    , 1038 (5th
    
    Cir. 1981).      The evidence presented brings Appellants’ assertions
    
    as to numerosity beyond the “mere allegation that the class is too
    
    numerous   to    make   joinder   practicable”       which,   by   itself,   is
    
    insufficient.      Fleming v. Travenol Laboratories, Inc., 
    707 F.2d 829
    , 833 (5th Cir. 1983).11
    
         Our independent review of the record satisfies us that the
    
    numerosity prong has been satisfied.            Because the district court
    
    failed to identify specific findings that led it to conclude that
    
    the numerosity prong had not been satisfied, we can only conclude
    
    that its assessment of the evidence was clearly erroneous and,
    
    therefore, that it abused its discretion in declining finally to
    
    certify the putative class on the ground of lack of numerosity.
    
    Accordingly, we vacate the district court’s decertification order.
    
    
    
         It    has   been   over   four    years    since   the   district     court
    
    provisionally     certified    the    class    at   issue.    While   we   have
    
         11
           We have previously stated that when conducting a
    numerosity analysis, district courts must not focus on sheer
    numbers alone but must instead focus “on whether joinder of all
    members is practicable in view of the numerosity of the class and
    all other relevant factors.” Phillips v. Joint Legislative
    Comm., 
    637 F.2d 1014
    , 1022 (5th Cir. 1981). We have found the
    inclusion of future members in the class definition a factor to
    consider in determining if joinder is impracticable. In Jack v.
    American Linen Supply Co., we noted that “[t]he alleged class
    . . . include[d] unnamed, unknown future . . . [members] who will
    be affected by . . . discriminatory policies, and joinder of
    unknown individuals is certainly impracticable.” 
    498 F.2d 122
    ,
    124 (5th Cir. 1974). In the case at hand, the fact that the
    class includes unknown, unnamed future members also weighs in
    favor of certification.
    
                                           15
    determined    that   the    district   court     abused   its   discretion   in
    
    decertifying the class on the grounds of numerosity and, possibly,
    
    lack of need, this court is not as well situated as the district
    
    court to determine whether the putative class should now finally be
    
    certified given all other considerations that go into a class
    
    certification decision. Upon remand, therefore, the district court
    
    should reconsider final class certification in light of this
    
    opinion and all other class certification considerations, including
    
    the adequacy as a representative of any person who hereafter comes
    
    forward to represent the class.
    
                                    B. Standing
    
         The district court ruled that the Pederson Plaintiffs lacked
    
    standing to bring suit for violations of Title IX and that all
    
    Appellants lacked standing to challenge LSU’s existing varsity
    
    program.   We review each ruling in turn.
    
                                1. Legal Principles
    
         “Jurisdictional questions are questions of law, and thus
    
    reviewable de novo by this Court. . . .               If the district court
    
    resolves   any    factual    disputes       in   making   its   jurisdictional
    
    findings, the facts expressly or impliedly found by the district
    
    court are accepted on appeal unless the findings are clearly
    
    erroneous.”      In the Matter of the Complaint of Tom-Mac, Inc., 
    76 F.3d 678
    , 682 (5th Cir. 1996) (internal citations omitted).                  “A
    
    question of standing raises the issue of whether the plaintiff is
    
    entitled to have the court decide the merits of the dispute or of
    
    particular issues.     Standing is a jurisdictional requirement that
    
    
                                           16
    focuses on the party seeking to get his complaint before a federal
    
    court and not on the issues he wishes to have adjudicated.”         Cook
    
    v. Reno, 
    74 F.3d 97
    , 98-99 (5th Cir. 1996) (internal quotations and
    
    footnotes omitted).
    
         To have standing, a plaintiff must establish three elements:
    
         First, the plaintiff must show that it has suffered an injury
         in fact--a harm suffered by the plaintiff that is concrete and
         actual or imminent, not conjectural or hypothetical. Second,
         the plaintiff must establish causation–a fairly traceable
         connection   between   the    plaintiff’s   injury   and   the
         complained-of conduct of the defendant. Lastly, there must be
         redressability--a likelihood that the requested relief will
         redress the alleged injury.
    
    Sierra Club v. Peterson, 
    185 F.3d 349
    , 360 (5th Cir. 1999).
    
    Additionally, courts have refused to adjudicate cases that raise
    
    only generalized grievances.       “A generalized grievance is a harm
    
    shared in substantially equal measure by all or a large class of
    
    citizens.      The   prudential   principle   barring   adjudication   of
    
    generalized grievances is closely related to the constitutional
    
    requirement of personal injury in fact, and the policies underlying
    
    both are similar."    Walker v. Mesquite, 
    169 F.3d 973
    , 979 n.16 (5th
    
    Cir. 1999) (internal citations and quotation marks omitted).
    
         Finally, the doctrine of standing is distinguishable from that
    
    of mootness.    The Supreme Court has acknowledged “mootness as ‘the
    
    doctrine of standing set in a time frame:       The requisite personal
    
    interest that must exist at the commencement of the litigation
    
    (standing) must continue throughout its existence (mootness).’”
    
    United States Parole Comm’n v. Geraghty, 
    445 U.S. 388
    , 397 (1980)
    
    (quoting Monaghan, Constitutional Adjudication:         The Who and When,
    
    82 YALE L.J. 1363, 1384 (1973)).
    
                                        17
                              2. Pederson Plaintiffs
    
           The district court determined that the Pederson Plaintiffs--
    
    Pederson, Ollar, and Clark--lacked standing to bring claims for
    
    equitable or declaratory relief.            With regard to Ollar and Clark,
    
    the    court    found   that    they   “were    ineligible    to    compete    in
    
    intercollegiate athletics after May, 1995 under the regulations of
    
    the    National     Collegiate     Athletic      Association        [(“NCAA”)].”
    
    Pederson, 912 F. Supp. at 907.              The court found that Pederson
    
    retained NCAA eligibility and had made the team, but she quit the
    
    team for financial reasons and was, at the same time, cut from the
    
    team due to a lack of skill. Id. at 907 & n.34.              The court further
    
    found that LSU had no men’s varsity soccer team and that it
    
    provided men and women the same opportunity to participate in club
    
    soccer.      Finally, the court found that the Pederson Plaintiffs did
    
    not establish the ability to play soccer above the club level and
    
    that they did not establish the interest or ability to play any
    
    sport other than soccer. The court therefore concluded that “LSU’s
    
    alleged violation of Title IX by not providing additional athletic
    
    opportunity to its female students in no way personally impacted
    
    these three plaintiffs.”        Id. at 907.     Absent any personal impact,
    
    the court determined that the Pederson Plaintiffs lacked standing
    
    and dismissed their claims.
    
           The   district   court    failed     appropriately    to    evaluate   the
    
    Pederson Plaintiffs’ standing. First, the district court addresses
    
    each    plaintiff’s     NCAA    eligibility      at   the    time    of   trial.
    
    Eligibility at the time of trial, however, implicates mootness; it
    
    
                                           18
    has no bearing on the particular litigant’s standing at the time
    
    the suit was filed.12
    
          Second, the district court’s conclusion that LSU provided men
    
    and   women    the   same   opportunities   to   play   soccer     and   that,
    
    therefore, LSU’s Title IX violation did not impact the Pederson
    
    Plaintiffs reaches the merits of the Pederson Plaintiffs’ effective
    
    accommodation claim.        The Pederson Plaintiffs claim that LSU, by
    
    failing to field a women’s varsity soccer team, ineffectively
    
    accommodated the interests and abilities of female students at the
    
    school.     Whether or not the Pederson Plaintiffs produced evidence
    
    at trial sufficient to establish this alleged violation is the very
    
    heart of the matter in their case and does not implicate standing.
    
    Standing requires alleged misconduct, not proven misconduct.                 To
    
    the extent that the district court reached the merits of the
    
    Pederson Plaintiffs’ claims in its opinion, we remark only that
    
    “[i]t is inappropriate for the court to focus on the merits of the
    
    case when considering the issue of standing.”           Hanson v. Veterans
    
    Admin., 
    800 F.2d 1381
    , 1385 (5th Cir. 1986).
    
          Third, the district court misconceived the level of injury
    
    necessary to establish standing in this area. The district court’s
    
    focus on the ability of each Pederson Plaintiff to secure a
    
    position on the varsity soccer team was misplaced.            This inquiry
    
    will be appropriate in the determination of damages during Stage
    
    II.   If the Pederson Plaintiffs have standing and succeed on their
    
    violation     claims,   then   each   plaintiff’s   ability   to    secure    a
    
          12
               We discuss mootness in Part II.C., infra.
    
                                          19
    position on the unfielded varsity soccer team during the period of
    
    the violation is a factor to consider in assessing damages.                  Of
    
    course, each plaintiff’s ability to secure a position will be
    
    impacted both by skill and NCAA eligibility.            The findings of the
    
    district court, therefore, do not help to determine whether the
    
    Pederson Plaintiffs have standing to challenge LSU’s effective
    
    accommodation under Title IX, i.e., whether they met the minimum
    
    standing requirements at the time they instituted this suit.
    
           We are unaware of, nor does either party point to, precedent
    
    delineating the precise level of injury a litigant must demonstrate
    
    to    establish   standing   to   assert   a   claim   under   Title   IX    for
    
    ineffective accommodation. Clearly, the alleged misconduct here is
    
    LSU’s failure to field a varsity soccer team in violation of Title
    
    IX.    The remedies sought are both monetary and injunctive.                As a
    
    general matter, injury in fact is the “invasion of a legally
    
    protected interest.”     Northeastern Fla. Chapter of the Associated
    
    Gen. Contractors of Am. v. City of Jacksonville, 
    508 U.S. 656
    , 663
    
    (1993). The difficult question, then, is whether there is, in this
    
    case, any legally protected interest actually violated or in
    
    imminent danger of being violated that is fairly traceable to the
    
    alleged misconduct and from which the Pederson Plaintiffs will
    
    likely obtain relief as a result of a favorable ruling.                      The
    
    district court seems to require that the Pederson Plaintiffs allege
    
    the injury of being denied the opportunity to compete on a specific
    
    varsity team.     It follows from this reasoning that a determination
    
    that a plaintiff would not have made the specific varsity team,
    
    
                                         20
    even had it existed, defeats her standing because she fails to
    
    demonstrate sufficient injury.         The district court requires too
    
    much.
    
         Our decision here is informed on two fronts.              First, we find
    
    the case of Boucher v. Syracuse Univ., 
    164 F.3d 113
     (2d Cir. 1999)
    
    supportive. There, members of the club lacrosse and softball teams
    
    brought suit for violation of Title IX.          Neither the district court
    
    nor the Court of Appeals for the Second Circuit discussed whether
    
    any of the students possessed the skills necessary to make one of
    
    the unfielded varsity teams.          Nonetheless, the Second Circuit,
    
    after dismissing their equal treatment claims for lack of standing,
    
    never   even   questioned     their        standing    to   bring   effective
    
    accommodation claims.      See id. at 120.
    
         Second,   we   find    the    Supreme       Court’s    Equal   Protection
    
    jurisprudence instructive.        In the context of set-aside programs,
    
    the Court has stated:
    
         When the government erects a barrier that makes it more
         difficult for members of one group to obtain a benefit than it
         is for members of another group, a member of the former group
         seeking to challenge the barrier need not allege that he would
         have obtained the benefit but for the barrier in order to
         establish standing.     The "injury in fact" in an equal
         protection case of this variety is the denial of equal
         treatment resulting from the imposition of the barrier, not
         the ultimate inability to obtain the benefit.      And in the
         context of a challenge to a set-aside program, the "injury in
         fact" is the inability to compete on an equal footing in the
         bidding process, not the loss of a contract. To establish
         standing, therefore, a party challenging a set-aside program
         . . . need only demonstrate that it is able and ready to bid
         on contracts and that a discriminatory policy prevents it from
         doing so on an equal basis.
    
    Northeastern   Florida,     508    U.S.     at   666   (citations    omitted).
    
    Violating Title IX by failing to field women’s varsity teams that
    
                                          21
    effectively    accommodate   the   interests      and    abilities      of   the
    
    university    community   certainly     creates   a     barrier   for   female
    
    students.    In much the same way as set-aside programs, the injury
    
    here results from the imposed barrier–the absence of a varsity team
    
    for a position on which a female student should be allowed to try
    
    out.   We hold, therefore, that to establish standing under a Title
    
    IX effective accommodation claim, a party need only demonstrate
    
    that she is “able and ready” to compete for a position on the
    
    unfielded team.
    
           The Pederson Plaintiffs have certainly established standing in
    
    this case.     They all participated in club soccer, and, indeed,
    
    Pederson actually competed for a spot on the team once it was
    
    fielded. Whether or not they have proved sufficiently their claims
    
    on the merits, however, is for the district court to decide.                 The
    
    district court’s conclusion that Appellees violated Title IX by
    
    failing to field a women’s varsity fast-pitch softball team does
    
    not compel a conclusion that they likewise violated Title IX by
    
    failing to field a women’s varsity soccer team.            Upon remand, the
    
    district court should determine, prior to proceeding to Stage II,
    
    the merits of the Pederson Plaintiffs’ claim.
    
                         3. Unequal Treatment Claims
    
           Appellants also challenge the district court’s determination
    
    that they did not have standing to challenge LSU’s entire varsity
    
    athletic program as it then existed, including the allocation of
    
    scholarships and other benefits to varsity athletes.              They argue
    
    that the district court should not have dismissed their claims for
    
    
                                       22
    declaratory and injunctive relief with respect to women’s varsity
    
    basketball,    volleyball,   track,   tennis,    golf,   gymnastics,   and
    
    swimming because they have individually sustained the requisite
    
    injury necessary to address the operation of LSU’s athletic program
    
    as a whole, and because limiting the inquiry to specific teams
    
    contradicts the policies of Title IX as well as traditional notions
    
    of fairness.
    
           The district court found that Appellants had standing to
    
    challenge the lack of effective accommodation but not the denial of
    
    equivalence in other athletic benefits.            Appellees defend the
    
    district court’s conclusion on the ground that persons who never
    
    participated in intercollegiate athletics have no standing to
    
    challenge the treatment of existing athletes.
    
           We agree with the district court that Appellants lack standing
    
    to challenge the alleged unequal treatment of varsity athletes at
    
    LSU.    At the time of trial, no named plaintiff was a member of a
    
    varsity team.13     Moreover, the class that Appellants seek to
    
    represent includes women injured by LSU’s failure to field teams
    
    for certain sports.    Standing to challenge effective accommodation
    
    does not automatically translate into standing to challenge the
    
    treatment of existing varsity athletes.         See Boucher, 164 F.3d at
    
    116 (“The [district] court held that since none of the named
    
           13
           We do not mean to imply that an equal treatment claim can
    only be brought by an existing varsity athlete. Whether, for
    example, a female student who was deterred from competing for a
    spot on an existing varsity team because of perceived unequal
    treatment of female varsity athletes would have standing to
    challenge the existing varsity program is a question we leave for
    another day.
    
                                      23
    plaintiffs were varsity athletes, they did not have standing to
    
    assert the equal treatment claims.    Its ruling on this issue was
    
    proper and we affirm the dismissal of plaintiffs’ equal treatment
    
    claims . . . .”).      Because we agree substantially with the
    
    reasoning set forth by the district court in its September 14,
    
    1995, Memorandum Ruling, for further explanation we rely on the
    
    district court’s discussion.14
    
    
         14
           The district court stated:
              If she [plaintiffs] cannot show personal injury, then
              no Article III case or controversy exists, and a
              Federal Court is powerless to hear that grievance. The
              individual injury requirement is not met by alleging
              “that injury has been suffered by other, unidentified
              members of the class to which [the plaintiff] belong[s]
              and which she purports to represent.” Warth v. Seldin,
              
    422 U.S. 490
    , 502, 
    95 S. Ct. 2197
    , 2207, 
    45 L. Ed. 2d 343
              (1975). Accordingly, a named plaintiff in a class
              action who cannot establish the requisite case or
              controversy between him or herself and the defendants
              simply cannot seek relief for anyone...not for herself,
              and not for any other member of the class. O’Shea v.
              Littleton, 
    414 U.S. 488
    , 494, 
    94 S. Ct. 669
    , 675, 
    38 L. Ed. 2d 674
     (1974)...The treatment of participants in
              female varsity athletics has not impacted plaintiffs as
              they have not been female varsity athletes and
              therefore have not been discriminated against by any
              alleged treatment of LSU’s female varsity athletes;
              therefore a change in said treatment would not impact
              plaintiffs. Plaintiffs have personally suffered no
              injury or threatened injury due to LSU’s allegedly
              illegal treatment of its varsity athletes and as such
              fail the initial prong of the standing inquiry as to
              the claims for illegal treatment of athletes.
    District Court Memorandum Ruling, September 14, 1995.
    
       We note, additionally, that we would be unable to reach the
    merits of this claim even were Appellants to have standing. We
    determined, supra, that the putative class is not properly
    certified, and we determine, infra, that the claims for
    injunctive relief have been rendered moot as to the named
    plaintiffs by reason of their graduation; because there is no
    proper party before us to raise this issue, we would be unable to
    reach the merits of it. See Geraghty, 445 U.S. at 400 n.7, 404.
    
                                     24
                                  C.     Mootness
    
           Appellees insist, at several points throughout their brief,
    
    that issues presented are moot as to the named plaintiffs and the
    
    class.    Appellants seem to agree with this assertion, as least in
    
    relation to the injunctive claims asserted by the named plaintiffs.
    
    In    their   brief,   Appellants   state,    “[The    Pineda   Plaintiffs’]
    
    graduation would render the issue [of injunctive relief] moot and
    
    thereby alleviate the requirement that LSU maintain a women’s
    
    softball team . . . .”      Appellants’ Brief at 45.         As to the class,
    
    Appellees assert that the district judge’s order was “essentially
    
    class relief.”     Appellees’ Brief at 76.       They fault Appellants for
    
    failing to “argue in their brief that the compliance plan ordered
    
    by the District Court is deficient or that the plan does not bring
    
    LSU    into   compliance   with     respect     to   Title   IX’s   effective
    
    accommodation requirements for participatory opportunities.”               Id.
    
    at 77. The gist of Appellees’ argument is that the district court,
    
    in effect, ordered class relief; Appellants do not contest that
    
    relief; therefore, any class claims for injunctive relief are moot.
    
           Appellees rely on Locke v. Board of Public Instruction, 
    499 F.2d 359
     (5th Cir. 1974), for the proposition that the district
    
    court’s acceptance of their Compliance Plan moots the class claims.
    
    In that case, a teacher sued her school district for race and sex
    
    discrimination     surrounding    her    maternity    leave.     Before   oral
    
    argument on appeal, the maternity policy was changed and Locke was
    
    transferred, at her own request, into a teaching position that she
    
    found satisfactory.
    
    
                                            25
           We noted there that “in her original complaint the only relief
    
    sought by Mrs. Locke other than money damages was an injunction
    
    restraining the school system from implementing its present leave
    
    policy against the plaintiff in a discriminatory manner.”     Id. at
    
    363 (emphasis added).    We went on to explain:
    
           It is clear from the facts before us . . . that the plaintiff
           herein has now been satisfied as to her request for a job
           complete with supplemental work and pay. The counsel for the
           school board . . . has assured this court that the school
           board always had, and still maintains, good will toward Mrs.
           Locke. Furthermore, it is clear that the school board has
           done everything within its power to comply with Mrs. Locke’s
           wishes within the limitations placed upon the board by the
           various federal orders and mandates.     This court is aware
           . . . that voluntary cessation of allegedly illegal conduct
           does not deprive the tribunal of power to hear and determine
           the cases, i.e., does not make the case moot.        But, the
           mootness in this case . . . depends not at all upon a
           voluntary cessation of activity, but rather depends on the
           simple fact that Mrs. Locke’s wishes have been complied with
           and it is a matter of record that the school board is
           complying with the various federal mandates and orders as to
           integration of its school system. Even though . . . it could
           be argued that this is a question that is capable of
           repetition, here, . . . that is not possible. The maternity
           leave policy allegedly forced on Mrs. Locke is no longer in
           existence, a new one having taken its place on December 12,
           1972. Mrs. Locke will never again be forced to comply with
           that leave policy.
    
    Id. at 364 (internal quotation marks and citations omitted).
    
    Finally, we concluded that “although this matter has generated
    
    public concern, the nature of the case itself we find is that of a
    
    single individual alleging infringement of her rights.     This does
    
    not make the dispute one of ‘general public interest’ requiring a
    
    decision even if many attributes of mootness exist.”     Id. at 366.
    
           Appellants here have consistently maintained that the alleged
    
    Title IX violation impacts not only themselves, but many women at
    
    LSU.    Furthermore, the fact that the district court ordered a
    
                                      26
    Compliance Plan demonstrates that the issues here go far beyond the
    
    impact of the alleged violations on the named plaintiffs. Finally,
    
    Appellees have failed to show the same dedication to accommodating
    
    the desires     of    Appellants     that      the    school    district     in   Locke
    
    demonstrated. Locke was rightly decided, but, without intending to
    
    put too fine a point on it, it is on all counts not the case before
    
    us today.
    
         This appeal raises three merit-based questions.                        Appellees
    
    argue that the district court erred in its conclusion that LSU
    
    violated Title IX.          Appellants argue that the district court erred
    
    in finding that Appellees did not discriminate intentionally.
    
    Finally, Appellees argue that the district court’s Compliance Plan
    
    requirements were overly broad. The Title IX violation question is
    
    necessarily antecedent to the issue of intentional discrimination,
    
    and the intentional discrimination issue, as discussed infra,
    
    implicates Appellants’ damages claim. The Compliance Plan question
    
    deals   with    the    injunctive       relief       prayed    for    by   Appellants.
    
    “Justiciability must be analyzed separately on the issues of money
    
    damages and the propriety of equitable relief.”                      Henschen v. City
    
    of Houston, 
    959 F.2d 584
    , 587 (5th Cir. 1992).                        We, therefore,
    
    analyze separately the mootness of the injunctive claims and the
    
    damages claims.       Furthermore, we examine mootness as to the named
    
    plaintiffs     and    the    putative    class.        “The    starting     point   for
    
    analysis is the familiar proposition that ‘federal courts are
    
    without power to decide questions that cannot affect the rights of
    
    litigants in the case before them.’”              DeFunis v. Odegaard, 
    416 U.S. 27
    312, 316 (1974) (quoting North Carolina v. Rice, 
    404 U.S. 244
    , 246
    
    (1971)).
    
                               1.   Injunctive Relief
    
           In the present case, Appellants have all graduated from LSU.
    
    Even assuming that any one of them retains any NCAA eligibility at
    
    this point, they have not argued that there is any likelihood that
    
    any of them will return to LSU and attempt to play varsity sports.
    
    As is so often the case in suits for injunctive relief brought by
    
    students, graduation or impending graduation           renders their claims
    
    for injunctive relief moot.          See Id. at 319-20; Sapp v. Renfroe,
    
    
    511 F.2d 172
    , 175 (5th Cir. 1975).            Because the named plaintiffs
    
    will    not    benefit   from   a    favorable   ruling    on   the   question
    
    implicating injunctive relief, we hold that this question is moot
    
    as to them.
    
           The issue of injunctive relief, however, is not moot as to the
    
    putative      class.     Appellees    argue   that   the   district   court’s
    
    effective class relief and their compliance with Title IX, based
    
    upon a plan entered into before this litigation began, renders the
    
    issue of injunctive relief moot as to the putative class as well.
    
    Contrary to Appellees’ assertions, it is well established that the
    
           voluntary cessation of allegedly illegal conduct does not
           deprive the tribunal of power to hear and determine the case,
           i.e., does not make the case moot. But jurisdiction, properly
           acquired, may abate if he case becomes moot because (1) it can
           be said with assurance that there is no reasonable expectation
           . . . that the alleged violation will recur, and (2) interim
           relief or events have completely and irrevocably eradicated
           the effects of the alleged violation.
                When both conditions are satisfied it may be said that
           the case is moot because neither party has a legally
           cognizable interest in the final determination of the
           underlying questions of fact and law.
    
                                           28
                   The burden of demonstrating mootness is a heavy one.
    
    County of Los Angeles v. Davis, 
    440 U.S. 625
    , 631 (1979) (internal
    
    citations and quotation marks omitted).                 In this case, Appellees
    
    bear the burden of demonstrating that “‘there is no reasonable
    
    expectation that the wrong will be repeated.’” ACLU v. Finch, 
    638 F.2d 1336
    , 1346 (5th Cir. 1981) (quoting United States v. W.T.
    
    Grant, 
    345 U.S. 629
    , 633 (1953)).              Appellees have failed to meet
    
    this burden.        They have made no representation to this court that
    
    they    are    dedicated     to    ensuring    equal    opportunities    and   fair
    
    accommodation for both their female and male athletes in the long
    
    run.    They simply state that they have instituted varsity women’s
    
    fast-pitch softball and soccer and that they have, as required,
    
    submitted a Compliance Plan to the district court.                Appellees have
    
    given no assurance that they will not disband these programs, as
    
    they have with varsity fast-pitch softball in the past.                  In its May
    
    9, 1997, order, the district court, although speaking highly of
    
    LSU’s       turnaround     in     the   area   of     effective   accommodation,
    
    nonetheless required periodic reporting for several years. We will
    
    not secondguess the district court’s reasoned judgment by declaring
    
    this issue moot when Appellees have failed to demonstrate that
    
    their Title IX effective accommodation violations will not recur.
    
           We     do   not   think,    however,    that    the   voluntary   cessation
    
    exception applies equally to the individual Appellants.                  Even were
    
    LSU to resume its illegal activity, Appellants, because of their
    
    graduation, would be unaffected. The question of injunctive relief
    
    
    
    
                                              29
    is therefore, as stated supra, rendered moot as to the named
    
    plaintiffs.
    
                               2.    Monetary Relief
    
          Finally, Appellants’ damages claim is not moot.            The district
    
    court held that, with regard to the Pineda Plaintiffs, and we have
    
    remanded for a determination whether, with regard to the Pederson
    
    Plaintiffs, LSU violated the individual rights of each named
    
    plaintiff by failing to accommodate effectively the interests and
    
    abilities of female students.               Appellees contest the district
    
    court’s   holding.        Appellants    assert     that   LSU   intentionally
    
    discriminated against women.           If these questions on appeal are
    
    answered in Appellants’ favor, then to the extent that LSU’s
    
    violations caused a named plaintiff’s actual damages, that person
    
    is   entitled   to   be   compensated       for   those   damages.    A   live
    
    controversy, therefore, exists with regard to the damages claim,
    
    and the legal questions underlying that claim are not moot.               See
    
    Henschen, 959 F.2d at 588.
    
                              D.    Sovereign Immunity
    
          Appellees contend that the district court lacked subject
    
    matter    jurisdiction     to    consider      Appellants’   claims   because
    
    Appellees are immune from suit pursuant to the Eleventh Amendment.
    
    Appellants, and the United States as Intervenor, counter that the
    
    Eleventh Amendment does not bar Appellants’ suit because (1)
    
    Congress validly abrogated the States’ Eleventh Amendment immunity
    
    for purposes of Title IX, (2) LSU waived its Eleventh Amendment
    
    immunity when it accepted federal funding for its educational
    
    
                                           30
    institutions, or (3) jurisdiction properly lies under the doctrine
    
    of   Ex Parte   Young.15    The   district   court    held   that   Eleventh
    
    Amendment immunity did not deprive the court of subject matter
    
    jurisdiction.16    See 912 F. Supp. at 901.          The district court’s
    
    ruling on Appellees’ Eleventh Amendment immunity is subject to de
    
    novo review.      See Seminole Tribe v. Florida, 
    11 F.3d 1016
    , 1021
    
    (11th Cir. 1994), aff’d, 
    517 U.S. 44
     (1996).
    
          In order to abrogate a State’s sovereign immunity, Congress
    
    must (1) have “unequivocally expresse[d] its intent to abrogate the
    
    immunity,” and (2) have “acted pursuant to a valid exercise of
    
    power.”     Seminole Tribe, 517 U.S. at 55 (internal quotations
    
    omitted).
    
          There is no dispute that Congress unequivocally has expressed
    
    its intent to abrogate the States’ sovereign immunity in the
    
    context of Title IX.       In response to Atascadero State Hosp. v.
    
    Scanlon, 
    473 U.S. 234
     (1985), Congress enacted the Civil Rights
    
    Remedies Equalization Act (“CRREA”) as part of the Rehabilitation
    
    
    
    
          15
           The United States did not join in Appellants’ argument
    that jurisdiction lies under the doctrine of Ex Parte Young.
    Because we determine that Congress validly abrogated state
    sovereign immunity in this context, we need not, and will not,
    address the two alternative arguments.
          16
           The district court reasoned that Congress can validly
    abrogate Eleventh Amendment immunity pursuant to its Article I
    spending power. See 912 F. Supp. at 901. This reasoning cannot
    stand in light of Seminole Tribe. Nevertheless, the district
    court’s ultimate conclusion is correct, as we will discuss infra.
    
                                        31
    Act Amendments of 1986, § 1003, Pub. L. No. 99-506, 100 Stat. 1845
    
    (codified at 42 U.S.C. § 2000d-7).17         Section 2000d-7 provides:
    
         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,
         42 U.S.C. § 6101 et seq., Title VII of the Civil Rights
         Act of 1964, 42 U.S.C. § 2000d et seq., or the provisions
         of any other Federal statute prohibiting discrimination
         by recipients of Federal financial assistance.
    
    42 U.S.C. § 2000d-7(a)(1) (some internal citations omitted).
    
         Thus, the only issue is whether Congress acted pursuant to a
    
    valid exercise of power when abrogating the States’ immunity.            See
    
    Seminole Tribe, 517 U.S. at 59 (“Was the Act in question passed
    
    pursuant to a constitutional provision granting Congress the power
    
    to abrogate?”).    The Fourteenth Amendment is recognized to be such
    
    a power.   See id.; Fitzpatrick v. Bitzer, 
    427 U.S. 445
    , 452-56
    
    (1976) (finding that, because the Fourteenth Amendment expanded
    
    federal power     at   the   expense   of   state   power,   the   Fourteenth
    
    Amendment extended federal power into the province of the Eleventh
    
    Amendment and, therefore, § 5 of the Fourteenth Amendment allows
    
    Congress to abrogate the immunity of the Eleventh Amendment).
    
    Formerly, the Interstate Commerce Clause, see U.S. CONST. art I, §
    
    
         17
           Atascadero held that § 504 of the Rehabilitation Act of
    1973, 29 U.S.C. § 794, which prohibits discrimination on the
    basis of disability by programs receiving federal funds, did not
    unequivocally demonstrate Congress’s intent to abrogate the
    States’ Eleventh Amendment immunity in order to authorize private
    damage actions against State entities. See 473 U.S. at 245-46.
    Section 2000d-7 was a response to this decision; the provision
    explicitly abrogates the States’ Eleventh Amendment immunity in
    the context of § 504 of the Rehabilitation Act and other similar
    federal statutes, including Title IX.
    
                                           32
    8, cl. 3, was also recognized to be such a power.          See Pennsylvania
    
    v. Union Gas Co., 
    491 U.S. 1
    , 19-20 (1989) (plurality opinion)
    
    (holding that the power to regulate interstate commerce would be
    
    “incomplete without the authority to render States liable in
    
    damages”).       Seminole Tribe, which involved the Indian Commerce
    
    Clause, overruled Union Gas.      See Seminole Tribe, 517 U.S. at 63,
    
    72-73 (finding “no principled distinction . . . to be drawn between
    
    the Indian Commerce Clause and the Interstate Commerce Clause,” and
    
    holding that the Eleventh Amendment restricts judicial power under
    
    Article III, and Article I powers cannot be used to circumvent
    
    constitutional limitations).
    
         After Seminole Tribe, then, legislation passed pursuant to
    
    Congress’s Article I powers cannot validly abrogate the States’
    
    sovereign immunity.      Appellees contend that Title IX is Spending
    
    Clause legislation, and that therefore Congress does not have the
    
    authority after Seminole Tribe to abrogate the States’ Eleventh
    
    Amendment immunity when acting pursuant to the Spending Clause.
    
    Appellants respond that Title IX can also be justified as an
    
    exercise   of    Congress’s   power    pursuant     to   Section   5   of   the
    
    Fourteenth Amendment, and that Congress can, after Seminole Tribe,
    
    abrogate   the    States’   Eleventh    Amendment    immunity   when   acting
    
    pursuant to Section 5 of the Fourteenth Amendment.
    
         We must first decide whether Title IX is merely Spending
    
    Clause legislation, or whether it can also be supported by Section
    
    5 of the Fourteenth Amendment.        This court, in Lesage v. Texas, 
    158 F.3d 213
     (5th Cir. 1998),rev’d on other grounds, 120 S.Ct 467
    
    
                                           33
    (1999), held that Congress validly abrogated the States’ Eleventh
    
    Amendment immunity for purposes of Title VI of the Civil Rights Act
    
    of 1964 by enacting CRREA, 42 U.S.C. § 2000d-7(a)(1).18 In response
    
    to arguments that Title VI was enacted pursuant to the Spending
    
    Clause rather than Section 5 of the Fourteenth Amendment and that
    
    Congress therefore could not validly abrogate the States’ Eleventh
    
    Amendment immunity for purposes of Title VI, we stated that the
    
    subjective intent of the legislators in enacting legislation is
    
    irrelevant:
    
         In evaluating the constitutionality of a statute, we
         simply ask if Congress sufficiently articulated an
         abrogation of state sovereign immunity and if it had the
         power to do so . . . . This is an entirely objective
         inquiry, for “[t]he constitutionality of action taken by
         Congress does not depend on recitals of the power which
         it undertakes to exercise.”
    
    Id. at 217 (quoting EEOC v. Wyoming, 
    460 U.S. 226
    , 243 n.18 (1983))
    
    (citations and further internal quotations omitted).
    
         Lesage supports the proposition that, even if Congress stated
    
    that it was acting pursuant to the Spending Clause in enacting
    
    Title IX,19 if Congress could have acted pursuant to Section 5 of
    
         18
           Appellants contend that this provision also abrogates the
    States’ Eleventh Amendment immunity for purposes of Title IX.
         19
           As Appellees recognize, Congress did not explicitly state
    upon which provision it relied for authority to pass Title IX.
    Appellees argue that the statutory framework conclusively
    demonstrates that Congress was acting pursuant to its Spending
    Clause power. The Supreme Court has recently agreed. In a
    series of sexual harassment cases over the last two terms, the
    Court has made clear its belief that Title IX was enacted
    pursuant to the Spending Clause. In Davis v. Monroe County Bd.
    of Ed., 
    526 U.S.
    ___, 
    119 S. Ct. 1661
    , 1669 (1999), the Court
    explained that “we have repeatedly treated Title IX as
    legislation enacted pursuant to Congress’ authority under the
    Spending Clause.” This conclusion follows the Court’s reasoning
    
                                    34
    the Fourteenth Amendment, Congress has the authority to abrogate
    
    for purposes of Title IX.      See id. at 217-18; see also Crawford v.
    
    Davis, 
    109 F.3d 1281
    , 1283 (8th Cir. 1997) (“The resolution of
    
    defendants’ contention therefore turns on whether Congress, as an
    
    objective matter, could have enacted Title IX pursuant to § 5 of
    
    the   Fourteenth    Amendment.”).        Moreover,    as    the   Lesage   court
    
    recognized,   “it   is   the   statute    abrogating       immunity,   not   the
    
    particular substantive provision of the statute, which specifically
    
    concerns us.”      Lesage, 158 F.3d at 218.          Because § 2000d-7, the
    
    provision which abrogated the States’ Eleventh Amendment immunity
    
    for purposes of both Title VI and Title IX, was enacted pursuant to
    
    Section 5 of the Fourteenth Amendment, the Lesage court found that
    
    Congress had validly abrogated the States’ Eleventh Amendment
    
    immunity.    See id. at 218-19.
    
          This reasoning supports the conclusion that Congress had the
    
    authority to abrogate the States’ Eleventh Amendment immunity for
    
    purposes of Title IX—either because Title IX could have been
    
    enacted pursuant to Section 5 of the Fourteenth Amendment, see
    
    Crawford, 109 F.3d at 1283 (“[W]e are unable to understand how a
    
    statute enacted specifically to combat [gender] discrimination
    
    could fall outside the authority granted to Congress by § 5.”), or
    
    because the legislation actually abrogating the States’ immunity,
    
    § 2000d-7, was enacted pursuant to Section 5, see Lesage, 158 F.3d
    
    at 218-19.
    
    
    in Gebser v. Lago Vista Indep. Sch. Dist., 
    524 U.S. 274
    , 287
    (1998) and Franklin v. Gwinnett County Pub. Schs., 
    503 U.S. 60
    ,
    74-75 (1992).
    
                                        35
         Other circuits have similarly concluded that Congress validly
    
    abrogated the States’ Eleventh Amendment immunity for purposes of
    
    Title IX.    In Crawford v. Davis, 
    109 F.3d 1281
     (8th Cir. 1997), the
    
    court held that Title IX could be justified by Section 5 of the
    
    Fourteenth Amendment, even if Congress did not explicitly state
    
    that it was acting pursuant to its Section 5 authority, and
    
    therefore Title IX validly abrogated the States’ immunity. See id.
    
    at 1283.    In Doe v. University of Illinois, 
    138 F.3d 653
     (7th Cir.
    
    1998), the court similarly found that Title IX could be justified
    
    by Section 5 of the Fourteenth Amendment, and that Congress’s
    
    abrogation of the States’ Eleventh Amendment immunity was therefore
    
    valid.     See id. at 660; accord Franks v. Kentucky Sch. for the
    
    Deaf, 
    142 F.3d 360
    , 363 (6th Cir. 1998) (holding that Congress
    
    validly abrogated Eleventh Amendment immunity for purposes of Title
    
    IX because Congress had authority pursuant to Section 5 of the
    
    Fourteenth Amendment to enact Title IX); cf. Timmer v. Michigan
    
    Dep’t of Commerce, 
    104 F.3d 833
    , 838-39 (6th Cir. 1997) (stating
    
    that it is not necessary for Congress to say explicitly which
    
    constitutional provision it is relying upon, and concluding that
    
    the Equal Pay Act was enacted pursuant to Section 5 of the
    
    Fourteenth Amendment).
    
         Notwithstanding our conclusion that Title IX validly abrogates
    
    the States’ sovereign immunity, we pause to address two recent
    
    decisions of the Supreme Court, handed down after oral argument in
    
    this case, which speak to abrogation issues in the area of Eleventh
    
    Amendment sovereign immunity.    Appellees have submitted them to us
    
    
                                      36
    as support for their contention that the instant suit be dismissed
    
    under the Eleventh Amendment.               In the first, College Savings Bank
    
    v. Florida Prepaid Postsecondary Ed. Expense Bd., 
    527 U.S.
    ___, 
    119 S. Ct. 2219
    , 
    1999 WL 412639
     (1999), the Court held that legislation
    
    under    §   5   of    the    Fourteenth     Amendment    must   be   confined   to
    
    enforcement of the Amendment’s other provisions by legislation that
    
    remedies or prevents constitutional violations. In College Savings
    
    Bank, Petitioner argued that the Trademark Remedy Clarification Act
    
    (“TRCA”) was designed to remedy and to prevent state deprivations
    
    of two property interests without due process of law, but the Court
    
    held that the asserted property interests—the right to be free from
    
    a business competitor’s false advertising about its own product and
    
    the right to be secure in one’s business interests—did not qualify
    
    as protected property rights.
    
         In Florida Prepaid Postsecondary Ed. Expense Bd. v. College
    
    Savings Bank, 
    527 U.S.
    ___, 
    119 S. Ct. 2199
    , 
    1999 WL 412723
     (1999),
    
    the Court both reaffirmed its holding in Seminole Tribe that
    
    Congress may not rely on Article I powers—here, the Commerce Clause
    
    and the Patent Clause—to abrogate sovereign immunity and extended
    
    the principle of College Savings Bank to cover actions against
    
    states   under        the    Patent   and   Plant    Variety   Protection   Remedy
    
    Clarification Act. Specifically, the Court in Florida Prepaid held
    
    that abrogation under § 5 is invalid where it cannot be sustained
    
    as legislation enacted to enforce the guarantees of the Fourteenth
    
    Amendment’s Due Process Clause.                  In order to enact “appropriate”
    
    legislation under the remedial power of § 5, see City of Boerne v.
    
    
                                                37
    Flores, 
    521 U.S. 507
    , 519 (1997), Congress must identify conduct
    
    transgressing the Fourteenth Amendment’s substantive provisions and
    
    must tailor its legislative scheme to remedy or to prevent such
    
    conduct; unremedied patent infringement by the States did not meet
    
    the test of City of Boerne and could not, therefore, validly
    
    abrogate immunity.
    
         We believe it beyond peradventure that Title IX meets the test
    
    first explained in Seminole Tribe and recently clarified by College
    
    Savings Bank and Florida Prepaid.                  Congress expressed a clear
    
    intent   to    abrogate     immunity       with     CRREA,      and    that    Act   was
    
    appropriately passed under Congress’s § 5 power to remedy past
    
    discrimination. As such, it was appropriate legislation itself and
    
    its goal—protecting         the   reach    of     Title    IX   and    other    similar
    
    statutes—was, by extension, also appropriate.
    
                                      III.    Title IX
    
         We now turn to the merits of this dispute, and we will address
    
    the underlying issues in Parts III and IV of this opinion.                      In this
    
    Part, we affirm the district court’s judgment that LSU violated
    
    Title IX and reverse the district court’s judgment that LSU did not
    
    intentionally       discriminate       against     women   in    the    provision    of
    
    athletics.
    
                                      A.    Background
    
         Title     IX    proscribes        gender     discrimination        in    education
    
    programs      or    other    activities         receiving       federal       financial
    
    assistance.        See North Haven Bd. of Educ. v. Bell, 
    456 U.S. 512
    ,
    
    514 (1982).        Patterned after Title VI of the Civil Rights Act of
    
    
                                              38
    1964, Pub. L. No. 88-352, 78 Stat. 252, 42 U.S.C. § 2000d (1994),
    
    Title IX, as amended, contains two core provisions.              The first is
    
    a “program-specific” prohibition of gender discrimination:
    
          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 . . . .
    
    § 901(a), 20 U.S.C. § 1681(a).        The second core provision relates
    
    to enforcement.      Section 902 of Title IX authorizes each agency
    
    awarding federal financial assistance to any education program to
    
    promulgate regulations “ensuring that aid recipients adhere to §
    
    901(a)’s mandate.”      North Haven, 456 U.S. at 514.          The “ultimate
    
    sanction” for noncompliance is termination of federal funding or
    
    the denial of future federal grants to the offending institution.
    
    Id.   Like § 901, § 902 is program-specific:
    
          [S]uch termination or refusal shall be limited to the
          particular political entity, or part thereof, or other
          recipient as to whom such a finding [of noncompliance]
          has been made, and shall be limited in its effect to the
          particular program, or part thereof, in which such
          noncompliance has been so found . . . .
    
    § 902, 20 U.S.C. § 1682.
    
          Beginning    in   the   mid-1970’s,     the   Department      of   Health,
    
    Education    and   Welfare,   and   its     successor,   the   Department     of
    
    Education,    have   relied    on   their    §   902   power   to   promulgate
    
    regulations governing the operation of federally-funded education
    
    programs. These regulations encompass not only athletics policies,
    
    but also actions by funding recipients in the areas of, inter alia,
    
    
    
    
                                         39
    admissions, textbooks, and employment.20     See, e.g., 34 C.F.R. §§
    
    106.21    (admissions),   106.42   (textbooks),   106.51   (employment)
    
    (1999).    The regulation most pertinent to the instant controversy
    
    requires that
    
         No person shall, on the basis of sex, be excluded from
         participation in, be denied the benefits of, be treated
         differently from another person or otherwise be
         discriminated    against    in   any    interscholastic,
         intercollegiate, club or intramural athletics offered by
         a recipient, and no recipient shall provide any such
         athletics separately on such basis.
    
    34 C.F.R. § 106.41(a) (1999). The regulations further provide that
    
         A recipient which operates or sponsors interscholastic,
         intercollegiate, club or intramural athletics shall
         provide equal athletic opportunity for members of both
         sexes. In determining whether equal opportunities are
         available the Director will consider, among other
         factors:
              (1) Whether the selection of sports and levels
              of competition effectively accommodate the
              interests and abilities of members of both
              sexes;
              (2) The provision of equipment and supplies;
    
         20
           The regulations accompanying Title IX define a
    “recipient” as
    
      any State or political subdivision thereof, or any
      instrumentality of a State or political subdivision thereof,
      any public or private agency, institution, or organization,
      or other entity, or any person, to whom Federal financial
      assistance is extended directly or through another recipient
      and which operates an education program or activity which
      receives or benefits from such assistance, including any
      subunit, successor, assignee, or transferee thereof.
    
    34 C.F.R. § 106.2(h) (1999). The Supreme Court recently
    clarified, in holding that the National Collegiate Athletic
    Association (“NCCA”) is not a Title IX recipient, that
    “[e]ntities that receive federal assistance, whether directly or
    through an intermediary, are recipients within the meaning of
    Title IX; entities that only benefit economically from federal
    assistance are not.” National Collegiate Athletic Ass’n v.
    Smith, ___ U.S. ___, ___, 
    119 S. Ct. 924
    , 929 (1999).
    
    
                                       40
              (3) Scheduling of games and practice time;
              (4) Travel and per diem allowance;
              (5) Opportunity to receive coaching and
              academic tutoring;
              (6) Assignment and compensation of coaches and
              tutors;
              (7) Provision of locker rooms, practice and
              competitive facilities;
              (8)   Provision   of  medical   and   training
              facilities and services;
              (9) Provision of housing and dining facilities
              and services;
              (10) Publicity.
         Unequal aggregate expenditures for members of each sex or
         unequal expenditures for male and female teams if a
         recipient operates or sponsors separate teams will not
         constitute noncompliance with this section, but the
         Assistant Secretary may consider the failure to provide
         necessary funds for teams for one sex in assessing
         equality of opportunity for members of each sex.
    
    34 C.F.R. § 106.41(c).
    
                          B.   Title IX Violation
    
         Appellees argue brazenly that the evidence did not demonstrate
    
    sufficient interest and ability in fast-pitch softball at LSU and
    
    that, therefore, they cannot be liable under Title IX.   The heart
    
    of this contention is that an institution with no coach, no
    
    facilities, no varsity team, no scholarships, and no recruiting in
    
    a given sport must have on campus enough national-caliber athletes
    
    to field a competitive varsity team in that sport before a court
    
    can find sufficient interest and abilities to exist.   It should go
    
    without saying that adopting this criteria would eliminate an
    
    effective accommodation claim by any plaintiff, at any time.     In
    
    any event, the district court’s finding that the requisite level of
    
    interest existed is a finding of fact subject to review for clear
    
    error.   Having reviewed the record, we determine that the district
    
    
    
                                     41
    court did not clearly err because there was ample indication of an
    
    interest by women in fast-pitch softball.
    
         Appellees argue that the district court applied the wrong
    
    legal framework to assess Appellees’ liability by placing the
    
    evidentiary burden upon them to explain the reason for their 1983
    
    decision to disband the women’s fast-pitch softball team.                  They
    
    argue for de novo review of that decision, but we agree with
    
    Appellants   and   the   record   supports        that   the   district   court
    
    considered all the evidence of interest and ability at LSU before
    
    concluding that Appellees were in violation of Title IX, not merely
    
    the fact that LSU disbanded its team in 1983.
    
         Appellees would have us hold that, although the student
    
    population of LSU is 51% male and 49% female, the population
    
    participating in athletics is 71% male and 29% female.                Given this
    
    breakdown,   they    argue    that    it     is     improper     to    consider
    
    proportionality, because to do so would be to impose quotas, and
    
    that the evidence shows that female students are less interested in
    
    participating in sports than male students.                The law suggests
    
    otherwise.   Title IX provides that the district court may consider
    
    disproportionality when finding a Title IX violation:
    
         This subsection shall not be construed to prevent the
         consideration in any hearing or proceeding under this
         chapter of statistical evidence tending to show that such
         an imbalance exists with respect to the participation in
         or receipt of the benefits of, any such program or
         activity by the members of one sex.
    
    20 U.S.C. § 1681(b).      LSU’s hubris in advancing this argument is
    
    remarkable, since of course fewer women participate in sports,
    
    given the voluminous evidence that LSU has discriminated against
    
                                         42
    women in refusing to offer them comparable athletic opportunities
    
    to those it offers its male students.
    
         Nevertheless,    Appellees        persist   in   their    argument    by
    
    suggesting that the district court’s reliance on the fact that LSU
    
    fields a men’s baseball team as evidence of discrimination was
    
    improper because there is no requirement that the same sports be
    
    offered for both men and women and because LSU offers nine sports
    
    for women and only seven for men.           We find that it was indeed
    
    proper for the district court to consider the fact that LSU fields
    
    a men’s baseball team while declining to field a comparable team
    
    for women despite evidence of interest and ability in fast-pitch
    
    softball at LSU.
    
         Appellees finally contest the district court’s determination
    
    that LSU’s decision to add fast-pitch softball and soccer was not
    
    for the purpose of encouraging women’s athletics.             They challenge
    
    the district court’s finding that LSU did not attempt to determine
    
    the interest and ability level of its female student population,
    
    contending that there is evidence in the record that shows that LSU
    
    does analyze the interest level of its female student athletes.
    
    Our review of the record demonstrates no such analysis on the part
    
    of LSU.   The proper analytical framework for assessing a Title IX
    
    claim can be found in the Policy Interpretations to Title IX, which
    
    require   an   analysis     of   the    disproportionality     between    the
    
    university’s   male   and    female    participation,   the     university’s
    
    history of expanding opportunities for women, and whether the
    
    university effectively accommodates the interests of its female
    
    
                                           43
    students.    See Title IX of the Education Amendments of 1972, Policy
    
    Interpretation, 44 Fed. Reg. 71,413, 71,414 (1979).              Specifically,
    
    the Policy Interpretation explains that Title IX’s application to
    
    athletic programs covers three general subject areas: scholarships,
    
    equivalent treatment, and equal accommodation.            See id. at 71,415,
    
    71, 417.    As a matter of law, a Title IX violation “may be shown by
    
    proof of a substantial violation in any one of the three major
    
    areas of investigation set out in the Policy Interpretation.”
    
    Roberts v. Colorado St. Univ., 
    814 F. Supp. 1507
    , 1511 (D. Colo.)
    
    (emphasis added), aff’d in part & rev’d in part sub nom. Roberts v.
    
    Colorado St. Bd. of Agric., 
    998 F.2d 824
     (10th Cir. 1993).            Credible
    
    evidence supports the conclusion that LSU failed all three prongs.
    
    Nevertheless,       addressing      merely     the    accommodation     prong,
    
    regulations adopted by the Department of Education in 1997 also
    
    support    the    district     court’s   conclusions.      See   34   C.F.R.   §
    
    106.37(c)(1)      (providing     that    recipients    that   award   athletic
    
    scholarships must do so with a view toward reasonable opportunities
    
    for such awards to members of both sexes); id. § 106.41(c)(1)
    
    (declaring       that   “[a]    recipient     which   operates   or   sponsors
    
    interscholastic, intercollegiate, club or intramural athletics
    
    shall provide equal athletic opportunity for members of both
    
    sexes”); 45 C.F.R. § 86.41(c)(1) (requiring the consideration of
    
    “[w]hether the selection of sports and levels of competition
    
    effectively accommodate the interests and abilities of members of
    
    both sexes”).       Applying this framework, as the Supreme Court has
    
    indicated that we should, see Martin v. Occupational Safety &
    
    
                                             44
    Health Review Comm’n, 
    449 U.S. 144
    , 150 (1991), the district court
    
    correctly found that LSU did not have a history of expanding
    
    women’s athletic programs and had not presented credible evidence
    
    regarding the interests and abilities of its student body.                  These
    
    findings were not clearly erroneous.                 See Anderson v. City of
    
    Bessemer    City,     
    470 U.S. 564
    ,    575   (1985).     Regardless,   our
    
    independent review of the record supports the district court’s
    
    conclusion that Appellees failed to accommodate effectively its
    
    female    students.         Proper   evaluation     of   the   district   court’s
    
    conclusion that Appellees violated Title IX required a careful
    
    consideration of the evidence presented at trial.                 Based on that
    
    review, we believe that the district court did not commit clear
    
    error in its factual conclusions or legal error in the standards
    
    that it applied.
    
                          C.     Intentional Discrimination
    
         The district court found that LSU had violated and continued
    
    to violate the prescriptions of Title IX.                The trial judge further
    
    concluded that, notwithstanding this threshold finding, a Title IX
    
    claimant must additionally prove intentional discrimination on the
    
    part of a recipient before she may recover monetary damages.21 With
    
    respect to the claims at issue in this case, the district court
    
    considered the question to be a “very close one” but eventually
    
    
         21
           The district court held that damages could not be
    recovered under Title IX unless the plaintiff proves that the
    institution intentionally discriminated. Appellants do not argue
    on appeal that damages should be available for unintentional
    discrimination. We, therefore, need not and do not address the
    accuracy of the district court’s holding in this regard.
    
                                                45
    held that LSU did not intentionally violate Title IX.                912 F. Supp.
    
    at 918.    Having carefully reviewed the trial record we hold that
    
    the district court erred in its legal conclusion.              We find that LSU
    
    did intentionally violate Title IX, thus we reverse that ruling.
    
         The district court stated that Appellees’ actions were not a
    
    result    of   intentional     discrimination      but   rather     of   “arrogant
    
    ignorance, confusion regarding the practical requirements of the
    
    law, and a remarkably outdated view of women and athletics which
    
    created the byproduct of resistance to change.”               Id.    The district
    
    court reasoned, inter alia, that, because Athletic Director Dean
    
    testified that he believes that his “women’s athletics” program is
    
    “wonderful” and because he was ignorant of the program’s state of
    
    compliance      with   Title    IX,    Appellees     did   not      intentionally
    
    discriminate against women.           See id. at 919.
    
         The       district   court’s      decision     finding       LSU    to   have
    
    unintentionally violated Title IX by not effectively accommodating
    
    their female student-athletes simply does not withstand scrutiny.
    
    The district court stated that
    
         Rather than taking notice of the enormous social change
         which has taken place in the past 25 years, LSU has
         continued to assume athletics is as it once was, a
         traditionally male domain, and its women students did not
         want to participate in athletics in the same manner and
         to the same extent as its mean, and acted accordingly.
    
    912 F. Supp. at 920 (emphasis added).              If an institution makes a
    
    decision not to provide equal athletic opportunities for its female
    
    students because of paternalism and stereotypical assumptions about
    
    their interests and abilities, that institution intended to treat
    
    women differently because of their sex.                  Moreover, Appellees’
    
                                            46
    ignorance about whether they are violating Title IX does not excuse
    
    their intentional decision not to accommodate effectively the
    
    interests of their female students by not providing sufficient
    
    athletic opportunities.
    
         Apparently, Dean “believed his program to be so wonderful that
    
    he invited an investigator from the Department of Education’s
    
    Office of Civil Rights to visit LSU to evaluate the athletics
    
    program’s compliance with Title IX.”        Id.   That representative’s
    
    findings   confirmed   Dean's   ignorance   of    the   actual   state   of
    
    compliance with Title IX by his athletic program, see id., but the
    
    district court nonetheless reasoned that Dean’s testimony was
    
    “credible” because “otherwise he would not have invited OCR to LSU
    
    to assess the program.”     Id.    This conclusion ignores the fact
    
    that, already on notice of potential violations, Dean and others
    
    continued to adhere to deprecatory nomenclature when referring to
    
    female athletes, refused to authorize additional sports for women,
    
    and instead seemed content that the “women’s teams fielded [by LSU]
    
    during the relevant time frame performed well in competition.” Id.
    
    This assessment of the athletics program is not merely “arrogance,”
    
    as the district court concluded, see id.; it belies an intent to
    
    treat women differently in violation of the law.
    
         It bears noting that the provisions of Title IX and its
    
    attendant regulations are not merely hortatory; they exist, as does
    
    any law, to sculpt the relevant playing field.             Consequently,
    
    Appellees’ alleged ignorance of the law does not preclude our
    
    finding that LSU acted intentionally.         Appellees need not have
    
    
                                      47
    intended to violate Title IX, but need only have intended to treat
    
    women    differently.       Cf.     Local      189,     United     Papermakers      and
    
    Paperworkers v. United States, 
    416 F.2d 980
    , 996 (5th Cir. 1969)
    
    (holding that “intent” under Title VII requires only that “the
    
    defendant    meant    to    do    what      he     did”      and   did      not   behave
    
    “accident[ally]”); United States v. Koon, 
    34 F.3d 1416
    , 1449 (9th
    
    Cir. 1994) (applying the same test to constitutional violations),
    
    aff’d in part and rev’d in part on other grounds, 
    518 U.S. 81
    
    (1996); United States v. Balistrieri, 
    981 F.2d 916
    , 936 (7th Cir.
    
    1992) (holding that a defendant need not actually know that he is
    
    violating the Fair Housing Act in order to be found to have
    
    discriminated).      Appellees’ outdated attitudes about women amply
    
    demonstrate this intention to discriminate, and the district court
    
    squarely    found    that   LSU’s     treatment         of    women      athletes   was
    
    “remarkably outdated,” “archaic,” and “outmoded.”                     912 F. Supp. at
    
    918-20. Well-established Supreme Court precedent demonstrates that
    
    archaic assumptions such as those firmly held by LSU constitute
    
    intentional gender discrimination.                 See, e.g., United States v.
    
    Virginia, 
    518 U.S. 515
    , 533 (1996) (holding that an institution’s
    
    refusal to admit women is intentional gender discrimination in
    
    violation of the Equal Protection Clause because, inter alia, of
    
    “overbroad generalizations about the different talents, capacities,
    
    or preferences of males and females”); Roberts v. United States
    
    Jaycees, 
    468 U.S. 609
    , 625 (1984) (warning of the dangers posed by
    
    gender     discrimination        based        on      “archaic        and     overbroad
    
    assumptions”).      We conclude that, because classifications based on
    
    
                                             48
    “archaic”   assumptions     are   facially      discriminatory,      actions
    
    resulting   from   an   application    of   these   attitudes   constitutes
    
    intentional discrimination.
    
         In addition to the district court’s evaluation of LSU’s
    
    attitudes as “archaic,” our independent evaluation of the record
    
    and the evidence adduced at trial supports the conclusion that
    
    Appellees persisted in a systematic, intentional, differential
    
    treatment of women.       For instance, in meetings to discuss the
    
    possibility of a varsity women’s soccer team, Dean referred to Lisa
    
    Ollar repeatedly as “honey,” “sweetie,” and “cutie” and negotiated
    
    with her by stating that “I’d love to help a cute little girl like
    
    you.”   Dean also opined that soccer, a “more feminine sport,”
    
    deserved consideration for varsity status because female soccer
    
    players “would look cute running around in their soccer shorts.”
    
    Dean, charismatically defending LSU’s chivalry, later told the
    
    coach of the women’s club soccer team that he would not voluntarily
    
    add more women’s sports at LSU but would “if forced to.”               Among
    
    many other examples, Karla Pineda testified that, when she met with
    
    representatives of the Sports and Leisure Department to request the
    
    implementation of an intramural fast-pitch softball team, she was
    
    told that LSU would not sponsor fast-pitch softball because “the
    
    women might get hurt.”
    
         LSU perpetuated antiquated stereotypes and fashioned a grossly
    
    discriminatory athletics system in many other ways.             For example,
    
    LSU appointed a low-level male athletics department staff member to
    
    the position of “Senior Women’s Athletic Administrator,” which the
    
    
                                          49
    NCAA defines as the most senior women in an athletic department.
    
    LSU consistently approved larger budgets for travel, personnel, and
    
    training facilities for men’s teams versus women’s teams.                    The
    
    university consistently compensated coaches of women’s team’s at a
    
    rate far below that of its male team coaches.
    
         Appellees have not even attempted to offer a legitimate,
    
    nondiscriminatory      explanation   for     this   blatantly      differential
    
    treatment of male and female athletes, and men’s and women’s
    
    athletics in general; they merely urge that “archaic” values do not
    
    equate to intentional discrimination.               Instead, LSU makes its
    
    mantra the contention that it was either ignorant of or confused by
    
    Title   IX   and   thus    cannot    be    held     intentionally     to    have
    
    discriminated.     To support this dubious argument, LSU turns for
    
    support to cases that deal with the standard for school liability
    
    for sexual harassment under Title IX.          A series of cases, crowned
    
    by Supreme Court pronouncements in the last two terms, hold that
    
    schools sued     for   harassment    under   Title    IX    must   have    actual
    
    knowledge of the harassment and cannot be liable on a theory of
    
    strict liability.      See Gebser v. Lago Vista Indep. Sch. Dist., 
    524 U.S. 274
    , ___, 
    118 S. Ct. 1989
    , 1997 (1998); Rosa H. v. San Elizard
    
    Indep. Sch. Dist., 
    106 F.3d 648
    , 652-53 (5th Cir. 1997); Canutillo
    
    Indep. Sch. Dist. v. Leija, 
    101 F.3d 393
    , 398-400 (5th Cir. 1997).
    
    Where the school has control over the harasser but acts with
    
    deliberate indifference to the harassment or otherwise fails to
    
    remedy it, liability will lie under Title IX.              See Davis v. Monroe
    
    County Bd. of Educ., 
    526 U.S.
    ___, ___, 
    119 S. Ct. 1661
    , 1671
    
    
                                         50
    (1999).     LSU seeks to apply these holdings to the case at bar,
    
    arguing that, before a finding of intentional discrimination is
    
    warranted,      Appellees     must    have    been     aware    that   they   were
    
    discriminating on the basis of sex by not effectively accommodating
    
    the interests and abilities of its female student-athletes.
    
           We   conclude   that    the    Title    IX    sexual    harassment     cases
    
    discussed above have little relevance in determining whether LSU
    
    intentionally discriminated here.             Indeed, the most significant of
    
    the    sexual   harassment     holdings      actually    supports      Appellants’
    
    argument: LSU arguably acted with deliberate indifference to the
    
    condition of its female athletics program.              Cf. Davis, 
    526 U.S.
    at
    
    ___, 119 S. Ct. at 1671 (holding that deliberate indifference to
    
    differential      treatment    between       the    genders    can   itself   cause
    
    discrimination to occur).            In any event, the requirement in the
    
    sexual harassment cases—that the academic institution have actual
    
    knowledge of the sexual harassment—is not applicable for purposes
    
    of    determining   whether     an    academic      institution      intentionally
    
    discriminated on the basis of sex by denying females equal athletic
    
    opportunity. In the sexual harassment cases, the issue was whether
    
    the school district should be liable for the discriminatory acts of
    
    harassment committed by its employees.                  These cases hold that
    
    school districts must themselves have actual discriminatory intent
    
    before they will be liable for the discriminatory acts of their
    
    employees.      In the instant case, it is the institution itself that
    
    is discriminating.     The proper test is not whether it knew of or is
    
    responsible for the actions of others, but is whether Appellees
    
    
                                            51
    intended to treat women differently on the basis of their sex by
    
    providing them unequal athletic opportunity, and, as we noted
    
    above, we are convinced that they did.         Our review of the record
    
    convinces us that an intent to discriminate, albeit one motivated
    
    by chauvinist notions as opposed to one fueled by enmity, drove
    
    LSU’s decisions regarding athletic opportunities for its female
    
    students.
    
         The judgment of the district court is REVERSED and the case
    
    REMANDED with instruction to proceed to Stage II.
    
                           IV.    Compliance Plan
    
         Appellees   challenge   the    district   court’s    Compliance   Plan
    
    requirements, as they pertain to soccer.       LSU argues that, because
    
    the plaintiffs who played soccer lacked eligibility by the time of
    
    trial, making their claims moot, the Compliance Plan requirements
    
    only should have pertained to fast-pitch softball.         Appellees also
    
    challenge the requirement that they gauge the athletic interests of
    
    incoming students through surveys and like materials.
    
         Appellants argue that the relief granted by the district court
    
    was not overbroad because the injury suffered by them was not
    
    merely the absence of a women’s varsity fast-pitch softball team
    
    but Appellees’ failure to provide equal athletic opportunity to its
    
    female students.     They    also   argue   that   the   requirement   that
    
    Appellees implement procedures to gauge the interest levels of
    
    their students is necessary to promote effective accommodation
    
    because, in order effectively to accommodate student interests, the
    
    university must know what those interests are. They argue that the
    
    
                                        52
    purpose   of   Title   IX   is   to   provide   broad-based   equality   in
    
    federally-funded educational programs and not merely to provide
    
    relief to individual plaintiffs.
    
         We find this issue nonjusticiable at this time.              In Part
    
    II.A., we determined that the district court abused its discretion
    
    in decertifying the provisionally certified class.            We remanded
    
    with instructions to consider further final certification of the
    
    putative class.     In part II.C., we determined that the issue of
    
    injunctive relief is moot as to the named plaintiffs.             A named
    
    plaintiff whose claim has become moot cannot press the merits of an
    
    issue on behalf of a class when that class has not properly been
    
    certified.     See Geraghty, 445 U.S. at 400 n.7, 404.22
    
         To maintain the status quo by leaving the district court’s
    
    injunctive order in place would work an injustice to Appellees,
    
    who, through no fault of their own, would be forced to comply with
    
    an order the merits of which they are powerless to contest.              “A
    
    party who seeks review of the merits of an adverse ruling, but is
    
    frustrated by the vagaries of circumstance, ought not in fairness
    
    be forced to acquiesce in the judgment.           The same is true when
    
    mootness results from unilateral action of the party who prevailed
    
         22
           We note that, although we do not reach the merits of the
    district court’s Compliance Plan requirements, we do not, at
    first blush, find that portion of the Compliance Plan dealing
    with the evaluation and assessment of student interests and
    abilities problematic. However, while we have not studied the
    matter closely, we are unclear how the district court justified
    granting relief with regard to women’s varsity soccer when it
    determined that no plaintiff had standing to challenge LSU’s
    failure to field such a team. Of course, this concern may
    disappear after the district court reaches the merits of the
    Pederson Plaintiffs’ issues on remand.
    
                                          53
    below.”    U.S. Bancorp Mortgage Co. v. Bonner Mall Partnership, 
    513 U.S. 18
    , 25 (1994).    It cannot reasonably be argued that Appellees
    
    brought about mootness in this case by causing Appellants to be
    
    graduated.    They were, it seems, “frustrated by the vagaries of
    
    circumstance.”    In such instances it is the custom of appellate
    
    courts to vacate the lower court’s injunctive order, and we follow
    
    that custom here.     See id. at 22-23, United States v. Munsingwear,
    
    Inc., 
    340 U.S. 36
    , 39-40 (1950); Karcher v. May, 
    484 U.S. 72
    , 82-83
    
    (1987).    On remand, however, should the district court finally
    
    certify a class, it is free to reinstate so much of its order and
    
    subsequent rulings as is it deems necessary under the then-existing
    
    circumstances.
    
                                       VI
    
         The   numerous   holdings   and    dispositions   included   in   this
    
    opinion warrant iteration:
    
    
    
         1) We HOLD that this suit is not barred by the Eleventh
    
    Amendment.
    
    
    
         2)     We HOLD that to establish standing under a Title IX
    
    effective accommodation claim of the sort presented here, a party
    
    need only demonstrate that she is able and ready to compete for a
    
    position on the unfielded team.
    
    
    
         3) With regard to Appellants, we REVERSE the district court’s
    
    ruling that the Pederson Plaintiffs lacked standing to challenge
    
    
                                       54
    LSU’s failure to field a varsity soccer team and REVERSE its
    
    subsequent judgment dismissing their claims with prejudice.             We
    
    AFFIRM the district court’s ruling that Appellants lacked standing
    
    to   challenge   the   entire   LSU   varsity   program.   We   HOLD   that
    
    Appellants’ damages claims, and the questions of Title IX violation
    
    and intentional discrimination underlying them, are not moot as to
    
    the named Appellants. We further HOLD that the issue of injunctive
    
    relief is moot as to the named Appellants.             We REMAND to the
    
    district court to determine the merits of the Pederson Plaintiffs’
    
    claims before proceeding to Stage II of trial, the damages phase.
    
    
    
          4) With regard to the putative class, we HOLD that the
    
    numerosity prong of Rule 23(a) was satisfied and a class was
    
    necessary, if any such requirement exists.         Accordingly, we VACATE
    
    the district court’s decertification order, REVERSE the district
    
    court’s judgment dismissing the claims for class relief, and REMAND
    
    with instructions to consider further the certification of the
    
    putative class in light of this opinion.        We HOLD that the issue of
    
    injunctive relief is not moot as to the putative class.
    
    
    
          5) With regard to the merit issues, we AFFIRM the district
    
    court’s judgment that Appellees violated Title IX.         We REVERSE the
    
    district court’s finding that Appellees did not intentionally
    
    discriminate, VACATE its subsequent judgment denying the Pineda
    
    Plaintiffs’ damages claims, and REMAND to the district court with
    
    instructions to proceed to Stage II of trial.        We HOLD that we lack
    
    
                                          55
    jurisdiction to address the district court’s injunctive relief
    
    order and VACATE that order, leaving the district court free to
    
    reinstate so much of the order and subsequent rulings as it deems
    
    necessary, if and when a class is finally certified.
    
         Appellants do not argue any points of error regarding the
    
    orders appealed from in Nos. 94-30680 and 95-30777; therefore, Nos.
    
    94-30680 and 95-30777 are DISMISSED.      We AFFIRM the order appealed
    
    from in No. 97-30427.       With regard to Nos. 97-30719 and 97-30722,
    
    we   VACATE   the   order    approving   LSU’s   Compliance   Plan   with
    
    instructions.   With regard to the final judgment appealed from in
    
    97-30744 and 97-30781, and the opinion appealed from in 96-30310,
    
    we AFFIRM in part, REVERSE in part, VACATE in part, and REMAND in
    
    part with instructions. All motions carried with the case are
    
    DENIED.   Each party shall bear its own costs.
    
    
    
    
                                        56
    

Document Info

DocketNumber: 95-30777

Citation Numbers: 213 F.3d 858

Filed Date: 1/27/2000

Precedential Status: Precedential

Modified Date: 3/24/2017

Authorities (58)

Cook v. Reno , 74 F.3d 97 ( 1996 )

Tom-Mac, Inc. v. Biela , 76 F.3d 678 ( 1996 )

Mullen v. Treasure Chest , 186 F.3d 620 ( 1999 )

United States v. Munsingwear, Inc. , 340 U.S. 36 ( 1950 )

United States v. WT Grant Co. , 345 U.S. 629 ( 1953 )

North Carolina v. Rice , 404 U.S. 244 ( 1971 )

O'Shea v. Littleton , 414 U.S. 488 ( 1974 )

Warth v. Seldin , 422 U.S. 490 ( 1975 )

Fitzpatrick v. Bitzer , 427 U.S. 445 ( 1976 )

County of Los Angeles v. Davis , 440 U.S. 625 ( 1979 )

United States Parole Comm'n v. Geraghty , 445 U.S. 388 ( 1980 )

North Haven Bd. of Ed. v. Bell , 456 U.S. 512 ( 1982 )

EEOC v. Wyoming , 460 U.S. 226 ( 1983 )

Roberts v. United States Jaycees , 468 U.S. 609 ( 1984 )

Anderson v. Bessemer City , 470 U.S. 564 ( 1985 )

Atascadero State Hospital v. Scanlon , 473 U.S. 234 ( 1985 )

Karcher v. May , 484 U.S. 72 ( 1987 )

Pennsylvania v. Union Gas Co. , 491 U.S. 1 ( 1989 )

Franklin v. Gwinnett County Public Schools , 503 U.S. 60 ( 1992 )

Northeastern Fla. Chapter, Associated Gen. Contractors of ... , 508 U.S. 656 ( 1993 )

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