1

RECOMMENDED FOR FULL-

Pursuant to Sixth Circ

ELECTRONIC CITATION: 2000 F

File Name: 00a0

UNITED STATES COU

FOR THE SIXTH 

____________

LORRIE ANN HORNER, by and

through her father nfr HaskelHorner; JENNIFER BAKER, by

and through her father nfrDouglas Baker; JULIANABROWN, by and through herfather nfr Michael Brown;ANGELLA CHAFFIN, by and

through her father nfr DaleChaffin; TRACY DOTSON, by

and through her father nfrSherman Dotson; JACQUELINEELSTON, by and through herfather Joseph Elston; AMYHACKER, by and through herfather nfr Chris Hacker;ELIZABETH SUZANNEHARTLAGE, an adult; KELLYJOHNSON, by and through her

father nfr Charles Johnson;MARY CHRISTINE

WHITELOCK, an adult,

Plaintiffs-Appellants,

LESLIE BURGETT, by and

through her father nfr Billy
2 Horner, et al. v. Kentucky High

Sch. Athletic Ass’n, et al.

No. 97-6264

Burgett; BARRIE WAGERS, by

and through her father nfrLyde Wagers,

Plaintiffs,

v.

KENTUCKY HIGH SCHOOL

ATHLETIC ASSOCIATION;KENTUCKY STATE BOARDFOR ELEMENTARY ANDSECONDARY EDUCATION,

Defendants-Appellees.



1

Appeal from the United States District Court

for the Western District of Kentucky at Louisville.

No. 92-00295—Edward H. Johnstone,

Senior District Judge.

Argued: February 3, 1999 

Decided and Filed: March 20, 2000

Before: JONES, NORRIS, and SUHRHEINRICH, Circuit

Judges.

_________________

COUNSEL

ARGUED: Gregory W. Butrum, Louisville, Kentucky, forAppellants. Danny C. Reeves, GREENEBAUM, DOLL &McDONALD, Lexington, Kentucky, Robert E. Stopher,BOEHL, STOPHER & GRAVES, Louisville, Kentucky, forAppellees. ON BRIEF: Donald E. Armstrong, Louisville,Kentucky, for Appellants. Danny C. Reeves, Roger G.
No. 97-6264 Horner, et 

Sch. 

Wright, GREENEBAUM, DOLexington, Kentucky, Robert E. Sto& GRAVES, Louisville, Kentuck

SUHRHEINRICH, J., delivered 

which NORRIS, J., joined. JONEa separate dissenting opinion.

____________

OPINION

____________

SUHRHEINRICH, Circuit Judg

female student athletes attending appeal following remand from granting summary judgment to Deand school athletic association on discrimination under Title IX of thof 1972, as amended by the Civil 1987 (20 U.S.C. §1681) ("Title IXthe denial of their post-judgment mWe AFFIRM.

I. BACKGRO

In 1992, Plaintiffs sued Defenda

Athletic Association (“AssociationBoard for Elementary and Secondclaiming that the Association's faisoftball violated the Equal PrFourteenth Amendment, 42 U.S.C3 of the Constitution of the CommoTitle XXVII, Labor and Human RRights (Ky. Rev. Stat. Ann. § 344.01997)). Specifically, Plaintiffs failure to sponsor fast-pitch sofdiminished the ability of female stfor college fast-pitch softball atcompared with male student athlet
4 Horner, et al. v. Kentucky High

Sch. Athletic Ass’n, et al.

No. 97-6264

baseball and then competed for college baseball athleticscholarships. Plaintiffs requested declaratory and injunctiverelief sanctioning fast-pitch softball for girls, compensatorydamages, certification as a class, attorneys’ fees, and costs. 

The Board and Association defended on the basis of its “25

percent” rule, whereby a new sport would not be sanctionedunless at least 25 percent of the member schools indicated awillingness to participate. At the time the lawsuit was filed,two surveys, in 1988 and 1992 respectively, revealed that themember schools indicated only a 9 percent (1988) and a 17percent (1992) interest in fast-pitch softball for girls. 

The district court granted Defendants’ motions for

summary judgment, holding that: (1) Defendants hadcomplied with Title IX because they had offered equalopportunities in accordance with the interests and abilities ofstudents; and (2) Defendants had complied with the EqualProtection Clause because they permitted students toparticipate in sanctioned sports without gender restriction.Plaintiffs appealed, and this Court affirmed in part andreversed in part. See Horner v. Kentucky High SchoolAthletic Ass'n, 43 F.3d 265 (6th Cir. 1994) (Horner I).

Horner I affirmed the judgment for Defendants on

Plaintiffs’ equal protection claim because Plaintiffs failed toprove that Defendants intentionally discriminated againstthem, as required by the Equal Protection Clause. See id. at

276. The court held that Plaintiffs had not alleged thatDefendants adopted or adhered to the 25 percent rule becauseof rather than in spite of its disparate impact on females andthat sheer disparate impact is insufficient to demonstrate anequal protection violation. The Horner I panel reversed the

judgment for Defendants on Plaintiffs’ Title IX claim,however, finding that issues of fact “abound[ed].” See id. at

275.

While Plaintiffs’ first appeal was pending in this Court, the

Kentucky General Assembly amended the statute regulating

No. 97-6264 Horner, et 

Sch. 

119 S.Ct. at 1671.discriminatory effect is a requiremDefendants are charged with knownot recognize fast-pitch softball uremand is appropriate to determine deliberately indifferent to Plaintiff

For the foregoing reasons, I w

court’s dismissal of Plaintiffs’ clairemand for a determination of wdeliberately indifferent to Plainaccordance with Davis. I would awhether Plaintiffs were “prevailinpurposes until after the remand.

V.

 Because I believe that the 

affirmance is contrary to the remeddissent. 
40 Horner, et al. v. Kentucky High

Sch. Athletic Ass’n, et al.

No. 97-6264

4The Policy Interpretation has been cited with approval by several

courts, including this one. See Horner, 43 F.3d at 273-74; Cohen v.

Brown Univ., 101 F.3d 155, 166 (1st Cir. 1996).

5Although similar reasoning with respect to Title VI’s regulations

failed to garner a majority view in Guardians, see 463 U.S. at 628-32

(Marshall, J., dissenting), there is every reason now, in the fullness ofsubsequent developments, to accord much more force to JusticeMarshall’s convincing arguments with regard to Title IX. Another reasonwhy the Alexander Court limited Guardians to Title VI cases was

because, by the time § 504 was enacted, Title VI had been in force fornearly a decade. See Alexander, 469 U.S. at 294-95 n.11. Title VI’s

enforcement regulations had incorporated a disparate impact standard, andnearly 40 federal agencies had adopted standards in which Title VI wasinterpreted to bar programs with a discriminatory impact. See Guardians,463 U.S. at 629-30 (Marshall, J., dissenting). In Alexander, the Court

theorized that because Congress was well-aware of Title VI regulationsprohibiting a discriminatory effect, but took no steps to restrict theremedies available under § 504 (which was based on Title VI), thenCongress implicitly rejected an “intentional” standard for § 504violations. Alexander, 469 U.S. at 294-95 n.11. Because Title IX was

enacted only one year before § 504, it seems safe to suggest that the sameimplicit assumption applies to Title IX. Indeed, because Davis relies on

the Department of Education’s Title IX regulations as providing adequatenotice to defendants of their Title IX obligations, Davis is a validation of

Justice Marshall’s arguments in the context of Title IX cases. See Davis,

IX. See Title IX of the Education Amendments of 1972; APolicy Interpretation; Title IX and Intercollegiate Athletics,44 Fed. Reg. 71,413 (Dec. 11, 1979).4 The Policy

Interpretation explicitly states that a finding of compliance ornoncompliance with Title IX would be based in part onwhether the federal funding recipient’s athletic programs “arediscriminatory in language or effect[.]” Id. at 71,417, 71,418;see also 34 C.F.R. § 106.41(c)(1) (“[w]hether the selection ofsports and levels of competition effectively accommodate theinterests and abilities of members of both sexes” is to beconsidered for Title IX compliance). These regulationsprovided clear notice to defendants of their Title IXobligations. See Davis, 119 S.Ct. at 1671, 1673 (Title IXregulations inform federal funding recipients of theircontractual duties).5 Providing an environment free from

No. 97-6264 Horner, et 

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1The following language was added 

1995-96 school year:

To qualify as having “sponsored” a sto demonstrate the following:(1) If similar versions of a particuladifferences in the scholarship opporin that sport, a survey must be taken reasonable times and places to determthe sport(s).(2) If said survey reveals sufficient squad required for play in the particuof the sport is to be played, the schooand other allowances to properly fiethe sport for which the NCAA mem

KHSAA Bylaw 40 §2(1), (2). high school sports. See Ky. Rev. SBaldwin 1995) (effective July 15offered one of two similar spodirected the Board and the Asregulations to offer the sport Collegiate Athletic Association (scholarships. In response to the paAssociation amended its Bylaw 40

If a member school sponsors oathletic activity that is similar to members offer an athletic scholsponsor the athletic activity oscholarships are offered. The athsimilar to sports for which Nscholarships are: Girls' fast pitch slow pitch.

KHSAA Bylaws, Div. IV, Bylaw 
6 Horner, et al. v. Kentucky High

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No. 97-6264

On remand, the district court again granted summary

judgment for Defendants. The district court held that: (1)Plaintiffs’ claims for class certification, injunctive relief, anddeclaratory relief under Title IX were moot because of theamendment to Ky. Rev. Stat. Ann. § 156.070; (2) the Title IXclaims of Plaintiffs who had graduated were also moot; and(3) Plaintiffs’ claims for monetary damages under Title IXfailed because Plaintiffs had presented no evidence ofintentional discrimination.

Plaintiffs moved to alter judgment and also moved for

attorneys’ fees. The district court denied both motions.Regarding attorneys’ fees, the district court found thatPlaintiffs had received no relief on the merits of their claim,and that there was no proof that Plaintiffs had been thecatalyst for Defendants’ policy change. Plaintiffs appeal.

II. DISCUSSION

On appeal, Plaintiffs challenge the district court’s refusal to

grant money damages under Title IX and its denial of theirrequest for attorneys’ fees. 

A. Compensatory Damages

Plaintiffs argue that the district court erred in granting

summary judgment because the Horner I panel did not hold

that there was no evidence of intentional discrimination byDefendants regarding Title IX. Plaintiffs further contend thatTitle IX does not require intentional discrimination to recoverdamages. Finally, Plaintiffs argue that if monetary damagesare premised upon a finding of intentional discrimination,Defendants’ gender-based classification meets that standard. We address Plaintiffs’ second argument first.

1. Intent Requirement

Plaintiffs contend that a lack of intentional discrimination

does not always preclude a plaintiff from recovering moneydamages under Title IX. Plaintiffs’ claim notwithstanding,

No. 97-6264 Horner, et 

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Defendants have complied with Timandate.” 43 F.3d at 275. On tdistrict court’s entry of summary Nevertheless, the majority now stahold that Plaintiffs made out a primviolation,” Ante at 21, and projudgment. I believe that rather than effect, this reading simply echoes which also reasoned that because a prima facie case of a Title IX violshould have been granted on the T276 (Batchelder, J., dissenting in pcurrent majority now concludes twarranted because Plaintiffs haadditional evidence” that Title IX runs roughshod over the Horner I a sufficient dispute in the recorjudgment. Yet again, the majorityadheres to the Horner I dissent, 

“silent or otherwise inadequate” othe plaintiffs’ case depends,” aPlaintiffs’ statistics showing a disgirls’ participation in Kentucky hiat 277 (Batchelder, J., dissenting believe this Court should stamp icourt’s clear mishandling of the Hrewrite the conclusion of Horner I

its dissent. 

Second, contrary to the majorit

possible that the standards of indifference could be met in this caall, the sole entities that could sancin Kentucky, and implemented slNor can Defendants argue that “surprised” by imposition of a modefendants in Guardians. Three sanctioned slow-pitch softball, thEducation and Welfare issued its Po
38 Horner, et al. v. Kentucky High

Sch. Athletic Ass’n, et al.

No. 97-6264

caused by a “neutral policy.” In each situation, the student isbeing denied the use of school resources on the basis of hergender–precisely the evil Title IX was designed to prevent.And in each situation, the defendant is “well aware” of thedeprivation of opportunities. It follows that in each situation,monetary relief should be available. 

IV.

Finally, I disagree with the majority’s decision to overlook

the district court and magistrate court’s error below, an errorwhich I believe deprived Plaintiffs of the opportunity tosatisfy the deliberate indifference standard. Our reviewingresponsibility is to correct error, not rationalize it.

The majority concedes that the magistrate court was

“technically incorrect” in holding that the Horner I opinion

established that there was no intentional discrimination forTitle IX purposes as a matter of law. Ante at 16. As themajority acknowledges, the original panel held “that therewere genuine issues of fact regarding a Title IX violation.”Id. Yet the magistrate court improperly applied the Horner Ipanel’s summary judgment on the equal protection claim tothe Title IX claim, concluding, as a matter of law, that therewas no intentional discrimination under Title IX. J.A. at 340.It further stated that Plaintiffs had not offered additionalevidence regarding intentional discrimination since theremand, and thus declared Plaintiffs’ claim for monetarydamages “not viable.” J.A. at 340. Despite this clearmisreading of Horner I, rather than remanding for the district

court to assess whether Defendants were deliberatelyindifferent to Plaintiffs’ Title IX rights, the majority still findsfor Defendants.

I find this result unacceptable. First, I think the majority’s

discussion improperly revisits and re-decides the disputealready resolved by Horner I. Over a dissent, the Horner I

majority concluded that “genuine issues of material factabound in this case, and preclude any determination that

No. 97-6264 Horner, et 

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proof of intent, however defined

compensatory relief for any type brief history of the key Title IX casof the relevant cases, the Supreminvoked a “contract” rationale: thlegislation, the relationship betweefederal funding recipient is consetherefore not be subject to money dthat it will be liable for the conduc

In 1979, the Supreme Court f

private right of action under TUniversity of Chicago, 441 U.S. reasoned that because Title IX was the Civil Rights Act of 1964, whcontaining an implied private righof Title IX explicitly assumed that applied as Title VI had been [interp696. See also Guardians Ass’n v. CYork City, 463 U.S. 582, 594 (198major part of the analysis in Cann

been derived from Title VI, that private remedies were available Congress intended similar remedTitle IX”). 

The relationship between mone

intent emerged in Guardians, a Tiand Hispanic police officers sued falleging that their layoffs under thhired, first-fired policy were discofficers claimed that the policy dthem because they had loweexaminations than White applicahired later than higher scoring Whiit came layoffs, Black officers weofficers who had been hired before higher qualifying examinationsacknowledged the discriminatory 
8 Horner, et al. v. Kentucky High

Sch. Athletic Ass’n, et al.

No. 97-6264

2Justice White explained the fractured votes as follows:

Despite the numerous opinions, the views of at least five

Justices on two issues are identifiable. The dissenters, JusticesBRENNAN, MARSHALL, BLACKMUN, AND STEVENS,join with me to form a majority for upholding the validity of theregulations incorporating a disparate-impact standard. See n.2,

supra. A different majority, however, would not allowcompensatory relief in the absence of proof of discriminatoryintent. Justice REHNQUIST and I reach this conclusiondirectly. See Parts II and IV, supra; post, at 3237(REHNQUIST, J., concurring in the judgment). JusticePOWELL, joined by THE CHIEF JUSTICE, post at 3235,believe that no private relief should ever be granted under TitleVI under any circumstances. Justice O’CONNOR, post, at3237, would hold that all relief should be denied unlessdiscriminatory intent is proven. It follows from the views ofthese latter three Justices that no compensatory relief should beawarded if discriminatory animus is not shown.

Id. at 607 n.27 (White, J.).

nevertheless, found that the plaintiffs failed to prove that thedefendant had acted with discriminatory intent. 

The plaintiffs appealed the issue of whether Title VI

requires proof of discriminatory intent. See id. at 584.Although a fractured ruling, a majority of the Court held thatTitle VI supports a private right of action providing limiteddeclarative and injunctive relief for unintentional violations.See id. at 602. A different majority of the Court rejected theplaintiffs’ argument that monetary damages were available forunintentional discrimination.2 Although his rationale for thisruling did not gain a majority, Justice White explained that:

We have also indicated that “make whole” remedies

are not ordinarily appropriate in private actions seekingrelief for violations of statutes passed by Congresspursuant to its “power under the Spending Clause toplace conditions on the grant of federal funds.”Pennhurst State School v. Halderman, 451 U.S. 1, 15,

No. 97-6264 Horner, et 

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the present situation.” Ante at 13majority concludes, Guardians is t

Given that Davis holds that Title IXfunding recipients on notice of thgiven that the regulations state thaa school’s athletic policies are dimajority’s distinguishing of Davi

Furthermore, I can discern no praDefendants’ “neutral policy” anaffirmatively to gauge the intereamong its student body. I find it under the former should be mstandard while the latter by a standard even though both violatstatute.

I also believe that such a distin

Davis, as the Court again remindestudents, not schools:

Consider, for example, a case physically threaten their femsuccessfully preventing the femaparticular school resource–an athlab, for instance. District adminof the daily ritual, yet they delibfor aid from the female studeresource. The district’s knowaction in response to such behavof Title IX’s core principlesindifference may appropriately monetary damages.

Davis, 119 S.Ct. at 1675. I fail to snot apply to Defendants in this caintentionally deprives a student of when it fails to curb harassment casurely a defendant likewise intentiothose opportunities when it fails to 
36 Horner, et al. v. Kentucky High

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1016 (5th Cir. 1996) (allowing recovery only upon showingthat school responded to harassment claims differently on thebasis of gender)). Rejecting Rowinsky and the very “animus”standard urged by Defendants, the Court held that Title IX“makes clear that . . . students must not be denied access toeducational benefits and opportunities on the basis of gender,”and that such a denial of benefits is to be measured from a“deliberate indifference” and/or an “actual knowledge”standard. Id. at 1675.

In my view, Davis makes abundantly clear that the crucial

factor determining whether a defendant has intentionallyviolated Title IX is notice. Besides, Davis was hardly a

revolutionary opinion. Rather, the decision marks the third

time that the Court has articulated a “deliberate indifference”standard for Title IX liability in this decade. Both Gebser andFranklin involved a Title IX lawsuit filed against a schooldistrict after a teacher had sexually abused the studentplaintiff. In Franklin, the Court authorized compensatorydamages under Title IX for the first time, reasoning that “[t]hepoint of not permitting monetary damages for an unintentionalviolation is that the receiving entity lacks notice that it will beliable for a monetary award. The notice problem does notarise in a case such as this, in which intentionaldiscrimination is alleged.” Franklin, 503 U.S. at 74-75. TheCourt ruled that the defendant-school district had“intentionally” violated Title IX because school officials were“aware of and investigated [the teacher’s] sexual harassmentof Franklin and other female students [but] took no action tohalt it and discouraged Franklin from pressing charges against[the teacher].” Id. at 64-65. Conversely, in a similar situationsix years later, the Court held that the defendant had notintentionally violated Title IX because it had no notice of thesexual harassment. See Gebser, 118 S.Ct. at 1999-2000

(noting that plaintiffs admitted that they could not prevailunder an “actual notice” standard). 

The majority suggests that the meaning of Gebser and

Davis is unclear because they “are not readily analogous to

No. 97-6264 Horner, et 

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101 S. Ct. 1531, 1539, 67 L. Edbecause the receipt of federaSpending Clause legislation is a State or other grantee weighs thbefore accepting the funds and athe conditions attached to their r

Id. at 596 (White, J.). 

In Franklin v. Gwinnett County 

60, 74 (1992), the Supreme Court the implied right of action under Ta damages remedy. In Franklindistrict under Title IX, alleging ththat she had been sexually harasnothing. The Court held that damaTitle IX violations from the sdiscrimination was intentional. characterized the holding of Guar

Though the multiple opinions in 

the difficulty of inferring the comJustices in that case, a clear majthat damages were available undseeking remedies for an intentJustice challenged the traditional a federal court’s power to awarcognizable cause of action.

Id. at 70. 

Justice White, this time writing f

same Spending Clause analysis to Guardians under Title VI:

In Pennhurst State School and 

. . . the Court observed that remesuch Spending Clause statutes wwas unintentional. Respondentmaintain that this presumption 
10 Horner, et al. v. Kentucky High

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No. 97-6264

intentional violations. We disagree. The point of not

permitting monetary damages for an unintentionalviolation is that the receiving entity of federal funds lacksnotice that it will be liable for a monetary award. . . . This notice problem does not arise in a case such as this,in which intentional discrimination is alleged.

Franklin, 503 U.S. at 74-75 (citation omitted) (emphasisadded). Franklin did not, however, define the contours of theschool district’s liability in such a situation. 

Gebser v. Lago Vista Independent School District, 524

U.S. 274, 118 S. Ct. 1989 (1998) took up that task. See id. at

__, 118 S. Ct. at 1995. There the Court held that a schooldistrict may be held liable for damages under Title IX, butonly if the district had “actual notice” and was “deliberatelyindifferent” to the underlying violation. See id. at 1999. In

Gebser, a high school student and her parents sued a schooldistrict for damages under Title IX, alleging that a teachersexually harassed her. The Supreme Court rejected the use ofagency or negligence principles to render the school districtliable for monetary damages under Title IX. See id. at 1997(“we conclude that it would ‘frustrate the purposes’ of TitleIX to permit a damages recovery against a school district fora teacher’s sexual harassment based on principles ofrespondeat superior or constructive notice, i.e., without actualnotice to a school district official”). Observing once againthat Title IX was modeled after Title VI, Justice O’ Connor,writing for the majority, invoked the “contract” rationale ofGuardians:

Title IX’s contractual nature has implications for our

construction of the scope of available remedies. WhenCongress attaches conditions to the award of federalfunds under its spending power, as it has in Title IX andTitle VI, we examine closely the propriety of privateactions holding the recipient liable in monetary damagesfor noncompliance with the condition. Our centralconcern in that regard is with ensuring “that the receiving

No. 97-6264 Horner, et 

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1982) (compensatory relief available for defendants adequate notice that they werantidiscrimination mandates); Love v. M(N.D. Ind. 1995) (refusing to accommorequests for access amounted to intentiona

558 (7th Cir. 1996). 

In each of these cases, the federal 

opportunity to the § 504 plaintiff accommodation for the plaintiff’s disa“animus” against the disabled plaintiff eithese cases. Rather, these defendants weobligations– very much like defendanNonetheless, the statutory violations werdefendants had full knowledge of their othe Second Circuit explained:

[I]ntentional discrimination may “policymaker acted with at least destrong likelihood that a violation of will result from the implementation . . . [or] custom.” Ferguson v. City 

688, 697 (D. Ariz. 1996), aff’d and (9th Cir. 1998)] . . . ; see also Canto385, 109 S. Ct. 1197, 103 L. Ed. 2d 

Bartlett, 156 F.3d at 331. The Seco“intentional discrimination” is in perfect Court’s decision in Davis.

Finally, and most significantly

presented in Davis with an opport

standard as a requisite for monetarbut instead ruled that a “deliberawould support a finding of intenDavis, the plaintiff brought a Tcomplaints of sexual harassment bignored by school officials. See DThe Court noted that the circuits wintentional discrimination in Title Iand that one circuit had endorsed monetary recovery in Title IX c(citing Rowinsky v. Bryan Indep. 
34 Horner, et al. v. Kentucky High

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2Bartlett was vacated in light of the Supreme Court’s recent decisions

limiting the scope of “disability” under the ADA. See Sutton v. United

Air Lines, Inc., 119 S.Ct. 2139 (1999); Murphy v. United Parcel Serv.,

Inc., 119 S.Ct. 2133 (1999); Albertsons, Inc. v. Kirkingburg, 119 S.Ct.

2162 (1999). Nevertheless, I still find Bartlett’s discussion of damages

to be a correct statement of the law.

3Incidentally, courts have been very hesitant to hold § 504 plaintiffs

to the “animus” standard as a requisite for compensatory relief. See, e.g.,Bartlett,156 F.3d at 330-31; Greater Los Angeles Council on Deafness v.

Zolin, 812 F.2d F.2d 1103, 1106-09 (9th Cir. 1987) (allowing action formonetary relief for discriminatory refusal to provide interpreters to deafplaintiffs); Miener v. State of Missouri, 673 F.2d 969, 978-79 (8th Cir.

1999);2 Moreno v. Texas Southern Univ., 573 F. Supp. 73, 77

(S.D. Tex. 1983) (recognizing that Justice White’s opinion ondamages was not the opinion of the Court); Tyler v. City ofManhattan,118 F.3d 1400, 1414 (10th Cir. 1997)(Jenkins, J.,

dissenting).

My position that Justice White’s opinion must be kept

within its proper bounds is further supported by subsequentSupreme Court decisions. A unanimous Court explained theGuardians holding in an opinion issued the following term:“A majority of the [Guardians] Court agreed that retroactiverelief is available to private plaintiffs for all discrimination,whether intentional or unintentional, that is actionable underTitle VI.” Consolidated Rail Corp. v. Darrone, 465 U.S. 624,

630 n.9 (1984). It seems to me that if the Guardians Court

did indeed limit compensatory relief to cases of intentionaldiscrimination involving discriminatory animus, such alimitation would have been acknowledged in Consolidated

Rail Corporation’s explanation of Guardians. See Bartlett,

970 F. Supp. at 1148-49. Additionally, another unanimousCourt explicitly limited Guardians to situations involving

“factors peculiar to Title VI” when it refused to read an intentrequirement in § 504 of the Rehabilitation Act of 1973, 29

U.S.C. § 701 et seq., which was another Spending Clause

antidiscrimination statute. See Alexander v Choate, 469 U.S.

287, 294-95 n.11 (1985).3

No. 97-6264 Horner, et 

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3The Gebser court also explained th

and VII:

That contractual framework distingVII, which is framed in terms not outright prohibition. Title VII appliregard to federal funding and aimdiscrimination throughout the economProducts, 511 U.S. 244, 254, 114 

Ed.2d 229 (1994) (internal quotation moreover, seeks to “make persons wthrough past discrimination.” Ibid. 

omitted). Thus, whereas Title VII aivictims of discrimination, Title IX foindividuals from discriminatory recipients of federal funds. Cannon, 1961-62. That might explain whrecognized the implied right under 

opinion referred to injunctive or eqaction, see 441 U.S., at 705, and n. 38

at 1962, and n. 38, 1964, n. 44, 19

remedy.

entity of federal funds [has] notfor a monetary award.” Juannouncing the Court’s judgme

Civil Serv. Comm’n of New Yconcluded that the relief in an alleging unintentional discrprospective only, because wunintentional, “it is surely not owas aware that it was adminiviolation of the [condition].” concerns here. If a school dteacher’s sexual harassment constructive notice or responlikewise be the case that the unaware of the discrimination. that Congress did not envision damages in that situation. 

Gebser, 118 S. Ct. at 1998 (citatio
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Gebser, 118 S. Ct. at 1997-98.

Most recently, in Davis v. Monroe County Board of

Education, 119 S. Ct. 1661 (1999), the Supreme Courtconsidered whether a damages action under Title IX will lieagainst a school board for student-on-student harassment.Consistent with its earlier cases, the Davis Court held that

private damages actions are available only where federalfunding recipients act with “deliberate indifference” to“known” acts of harassment. Again, the Court reasoned:

This Court has indeed recognized an implied privateright of action under Title IX, see Cannon v. University

of Chicago, supra, and we have held that moneydamages are available in such suits, Franklin v. GwinnettCounty Public Schools, 503 U.S. 60, 112 S. Ct. 1028,117 L.Ed.2d 208 (1992). Because we have repeatedlytreated Title IX as legislation enacted pursuant toCongress’ authority under the Spending Clause, however,see, e.g., Gebser v. Lago Vista Independent Schools,

supra, at 287, 118 S. Ct. 1989 (Title IX); Franklin v.

Gwinnett Public County Schools, supra, at 74-75, and n.8, 112 S. Ct. 1028 (Title IX), see also Guardians Assn. v.Civil Serv. Comm’n of New York City, 463 U.S. 582,598-99, 103 S. Ct. 3221, 77 L.Ed.2d 866 (1983) (opinionof White, J.) (Title VI), private damages actions areavailable only where recipients of federal funding hadadequate notice that they could be liable for the conductat issue. When Congress acts pursuant to its spendingpower, it generates legislation “much in the nature of acontract: in return for federal funds, the States agree tocomply with federally imposed conditions.” PennhurstState School and Hospital v. Halderman, 451 U.S. 1, 17,101 S. Ct. 1531, 67 L.Ed.2d 694 (1981). In interpretinglanguage in spending legislation, we thus “insis[t] thatCongress speak with a clear voice, “recognizing that“[t]here can, of course, be no knowing acceptance [of the

No. 97-6264 Horner, et 

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1Justice White summarized the vario

Despite the numerous opinions, the von two issues are identifiable. TBRENNAN, MARSHALL, BLACKwith me to form a majority for uphregulations incorporating a disparate

supra. A different majority, hocompensatory relief in the absence intent. JUSTICE REHNQUIST andirectly. See Parts III and IV

(REHNQUIST, J., concurring in POWELL, joined by THE CHIEF JUbelieves that no private relief should VI under any circumstances. JUST615, would hold that all relief discriminatory intent is proved. It these three latter Justices that no comawarded if discriminatory animus is 

Id. at 463 U.S. at 607 n. 27 (White, J.). 

unintentional discrimination.1 Of 

that case, only Justice White’s opifor “intentional discrimination.” Sthat . . . in the absence of proof compensatory relief should not be aplaintiffs”) (White, J.); id. at 607 njustice joined Justice White on t(Rehnquist, J., concurring in the Court has already declined to takJustice White’s opinion in Guardiait did not command a majoriNeighborhood Action Coalition v1012, 1015 (6th Cir. 1989); see aState Bd. of Law Exam’rs, 970 F. SN.Y. 1997), aff’d in relevant pa1998), vacated on other grounds, 6
32 Horner, et al. v. Kentucky High

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athletic opportunities are more often–if not always– the resultof misperceptions, ignorance, or an unwillingness to alter thestatus quo rather than a conscious decision to treat womendifferently because they are women. Because the “animus”standard ensures that Title IX defendants will be virtuallyimpervious to a money judgment, they have little incentive torectify any inequities in their athletic programs until judiciallydirected. Instead, the“animus” standard allows defendants toremain blissfully ignorant of their Title IX obligations withlittle fear of having to pay damages for depriving theirstudents of equal athletic opportunities. For this reason, Ibelieve the standard is antithetical to the remedial purposes ofTitle IX, frustrating, rather than promoting, the Act’s centralgoals See Gebser, 118 S.Ct. at 2005 (Stevens, J., dissenting).

III.

Moreover, I believe the standard itself rests on flimsy legal

ground. The sole source for the“discriminatory animus”standard is Justice White’s plurality opinion in Guardians,

463 U.S. at 584-607 (White, J.). In Guardians, a class ofminority civil employees in New York City brought an actionunder Title VI of the Civil Rights Act of 1964, contendingthat the city’s “last hired, first fired” policy had a disparateeffect on minority workers. 

The issue in Guardians was “whether proof of

discriminatory intent [was] required to establish a violation ofTitle VI[.]” Id. at 615 (Marshall, J., dissenting). Sevenopinions were filed in the Guardians case, in which a

consensus emerged twice. First, a majority of the Courtagreed that injunctive and declaratory relief were available forso-called “unintentional” violations of Title VI. Second, adifferent majority of the Court rejected the workers’ argumentthat monetary damages were recoverable in cases of

No. 97-6264 Horner, et 

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terms of the putative contract] if conditions [imposed by the legascertain what is expected of it.” 25, 101 S. Ct. 1531. 

Id. at __, 118 S. Ct. at 1669-70. Dof Gebser to student-on-student seschool officials are aware of the mistop it, despite its ability to exercise 

In sum, although the Supreme C

ruled on the point, we think that proof of intentional discrimination damages under Title IX when a challenged under a disparate impacdiscussion illustrates, the Supremapplied Justice White’s Spending articulated in Guardians in its Tit

consensual relationship between fethe recipient must be aware of the receipt of those funds. As JuFranklin, “The point of not permittan unintentional violation is thafederal funds lacks notice that it waward.” Franklin, 503 U.S. at 74. that we are ignoring Title IX’s remignores this countervailing intrequirement seeks to accommodatcompensatory damages under Titlfacially neutral policy is challengviolation is shown. 

This leaves the question of w

determine intent when a facially neCurrently, the only clear test in the “deliberate indifference.” Howevthat test arose, Franklin, Gebser

deliberate indifference to sexual readily analogous to the present s
14 Horner, et al. v. Kentucky High

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4For example, a deliberate indifference test might be appropriate

when Plaintiffs claim that defendant school officials had actualknowledge of the disparate impact of their policies, either at the time ofenactment or when subsequently brought to their attention postenactment, and turn a blind eye. We can also perceive school officialsadopting a policy simply because of gender bias, without empiricalevidence of disparate effect. In this situation, we do not think that thedeliberate indifference test works, because it would be difficult forPlaintiffs to prove actual knowledge of disparate impact. Thediscriminatory animus test, albeit a stricter standard, might help PlaintiffsLouisiana State Univ., ___ F.3d ___, Nos. 94-30680, 95-30777, 96-30310, 97-30427, 97-30719, 2000 WL 19350, at *21 (5th Cir., Jan. 27, 2000). In those cases the school districtwas sued for its failure to prevent its agents from sexuallyharassing a student (or engaging in some other form ofmisconduct). Thus, “intent” in that context means “actualnotice” of the abuse by a third party and a failure to stop it. 

This case is the Title IX equivalent of Guardians. In

Guardians, the district court acknowledged the disparateimpact of the defendant police department’s employmentpolicies but did not impose liability for damages because thepolicies were not intentionally discriminatory. However, asthe dissent notes, only Justice White advocated a standard forintentional discrimination when a facially neutral policy ischallenged, that of “discriminatory animus.” See Guardians,463 U.S. at 584 (White, J.) (“I conclude that . . . in theabsence of proof of discriminatory animus, compensatoryrelief should not be awarded to private Title VI plaintiffs”);id. at 607 n.27 (same). The dissent nonetheless advocates the“deliberate indifference” of Franklin, Gebser, and Davis; andcriticizes the discriminatory animus standard as“overdemanding,” “near[ly] insurmountable,” and“antithetical to the remedial purposes of Title IX.” 

We can envision various scenarios in which the

discriminatory animus and deliberate indifference tests mighthelp establish “intent” under Title IX when a facially neutralpolicy is challenged.4 However, because of Plaintiffs’

No. 97-6264 Horner, et 

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Yet, purported “unintentional” 

pervasive in our educational inscentury after the statute’s enactchanged for female athletes since much remains the same. AccordEducation, in 1997,

[a]t the high school level, thermore boys’ varsity teams than women receive only one-third of and, between 1992 and 19expenditures for women’s collegonly 89 percent, compared to representing only 23 percent expenses.

United States Department of EducProgress, Part 6 (1997). Another IX’s Silver Anniversary concluded “significant gains” in athletic oppostudents, 

these gains still leave girls and wshare of opportunities to compDivision I colleges provide atwomen within 5 percentage poienrollment. Even among Divisisponsor football, only 16 perceproviding women with athproportion to women’s enrollme

National Women's Law Center, Ton Gender Equity (1997). Thiinstitutions an overall grade of “C” athletic programs. Id. 

Despite these recent statistics, I 

IX athletic-equality case in which tthe overdemanding “animus” discrimination. As explained ab
30 Horner, et al. v. Kentucky High

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available remedies in Title IX cases. See Franklin, 503 U.S.at 72. Indeed, in 1986, Congress even abrogated the states’Eleventh Amendment immunity in Title IX cases. See id.Thus, the remaining question is whether an award of damagesto Plaintiffs in this case would frustrate the purposes of TitleIX.

In dicta, the majority appears to agree with Defendants’

argument that the “discriminatory animus” standard isappropriate here. The Supreme Court has defined adiscriminatory animus towards women as having “a purposethat focuses upon women by reason of their sex . . . directedspecifically at women as a class.” Bray v. AlexandriaWomen’s Health Clinic, 506 U.S. 263, 269-70 (1993). Ibelieve that, short of a defendant actually defying a courtinjunction, the “animus” standard will almost never be met ina Title IX athletic-equity case. Cf. Guardians Ass’n v. CivilServ. Comm’n of New York City, 463 U.S. 582, 632 (1983)(Marshall, J., dissenting). 

The excuses for not maintaining gender equity in scholastic

athletic programs are all too familiar. School administratorsusually justify differences in athletic opportunities betweenthe sexes because of a misperceived lack of interest or abilityamong female athletes, or because of a belief that altering thestatus quo in athletic programs is not worth the inconvenienceor expense. See generally Cook v. Colgate Univ., 802 F.Supp. 737, 746-50 (N.D. N.Y. 1992) (addressing variousdefenses for college’s failure to grant varsity status towomen’s hockey team), vacated as moot, 992 F. 2d 17 (2d

Cir. 1993); Daniels v. School Bd. of Brevard Co., Fla., 995 F.Supp. 1394, 1395 (M.D. Fla. 1997) (school board argued thatit was too expensive to remedy existing inequities betweensoftball and baseball programs); Pederson v. Louisiana StateUniv., 912 F. Supp. 892, 918 (M.D. La. 1996) (Title IXviolations were “result of arrogant ignorance, confusionregarding the practical requirements of the law, and aremarkably outdated view of women and athletics whichcreated the by-product of resistance to change”). 

No. 97-6264 Horner, et 

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establish the requisite intent.

Recently, the Fifth Circuit held that 

applied in Title IX sexual harassment cdetermining whether an academic instituon the basis of sex by failing to accomPederson v. Louisiana State Univ., ___ 30777, 96-30310, 97-30427, 97-30719, 2Jan. 27, 2000). According to Pederson, “[the school district] knew of or is responsiwhether [the school district] intended to basis of their sex by providing them unequthe Pederson court observed, classifassumptions are facially discriminating, application of these attitudes constitutes at * 20. However, as discussed, this casdiscrimination.

5For this reason, we disagree with th

answer to [the] question [of whether the dthat the plaintiffs produced no evidence owill depend entirely on the definition within the meaning of Title IX.” fundamental failure to establish a alone an intentional violation,5 we this time. This brings us to Plaint

2. Plaintiffs’ P

 In holding that Plaintiffs’s Title 

damages failed for lack of proof of the district court held that:

It is clear, as a matter of the law was no intentional discriminatiocase. Horner v. Kentucky High 

265, 276 (6th Cir. 1994).3

[FN]3 The Sixth Circuit detefailed to offer sufficient evidintentional discrimination to 
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6In the first appeal of this case, this Court, relying on Personnel

Administrator v. Feeney, 442 U.S. 256 (1979), recognized thatdiscriminatory intent requires a showing that the challenged policy wasadopted “because of, not merely in spite of, its adverse impact on persons

in the . . . class.” Horner, 43 F.3d at 276 (citing Feeney, 442 U.S. at 279)

(emphasis added). 

Applying this rule, the Horner I panel ruled that: 

Plaintiffs did not allege that defendants adopted or adhered

to the 25 percent rule because of rather than in spite of itsdisparate impact on females. Nor did they come forward withevidence of discriminatory intent, such as a tainted historicalbackground of the rule, or a circumstantially suspicioussequence of events leading up to the rule. In short, plaintiffsclaimed only that sheer disparate impact was sufficient todemonstrate an equal protection violation. This simply was notenough to defeat the defendants' motion for summary judgment.

Id. (internal citation omitted).

motion for summary judgment on the EqualProtection Claim. Plaintiffs have not offered anyadditional evidence regarding intentionaldiscrimination since the case was remanded from theSixth Circuit. 

(J.A. 340.)6 Plaintiffs contend that this ruling is wrong

because the Horner I panel’s ruling pertained only to theirEqual Protection Claim; and furthermore, that the SixthCircuit explicitly held that Plaintiffs had made their primafacie case under Title IX. 

Plaintiffs are correct that the ruling in Horner I regarding

intentional discrimination pertained only to their equalprotection claim. Thus, the district court was technicallyincorrect in holding that the original panel’s decision was“law of the case” as to Plaintiffs’ Title IX claim. Given theHorner I panel’s holding that there were genuine issues offact regarding a Title IX violation in the first place, a rulingthat there was no evidence of intentional discrimination underTitle IX would have been premature. This, however, brings

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Chicago, 441 U.S. 667, 696 (1979explicitly assumed that it would be Title VI had been during the precSupreme Court has observed thaTitle IX were (1) “to avoid the usupport discriminatory practicesindividual citizens effective ppractices.” Gebser v. Lago Vista I1989, 1997 (1998); see also Haffe

Supp. 531, 533 (E.D. Pa. 1981) provide “the essential guarantees education for men and women”) 5808 (1972) (remarks of Sen. Bircdoubt that Congress fully intended equity in scholastic athletic prog

(recounting legislative history avarious measures that would have on athletic programs); see also 

(recipients of federal funds must geathletic opportunity to students of bBd. of Ed. v. Ohio High School Ath660-61 (6th Cir. 1981) (Jones, Jdissenting in part). Finally, the Sup

that Title IX was enacted pursuanpower. See Davis, 119 S.Ct. at 16at 74. By agreeing to accept fessentially contracted with the fedwould not discriminate on the baSee Gebser, 118 S.Ct. at 1997. 

An implied cause of action ex

Davis, 119 S.Ct. at 1669; Gebser, 1

441 U.S. at 717. As noted supra, c“make good on the wrong done” been infringed, subject to only twlimited in granting relief when (1) the contrary, or (2) the purposes would be frustrated. See Gebserwell-accepted that Congress did 
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wrongly concluded that Defendants are entitled to summaryjudgment on monetary damages. To the contrary, Plaintiffsmust be afforded an opportunity to meet the Davis standardbelow.

II.

The starting point for our analysis should be the seminal

decision of Bell v. Hood, 327 U.S. 678 (1946) in which the

Supreme Court stated the oft-repeated principle that

where federally protected rights have been invaded, it hasbeen the rule from the beginning that courts will be alertto adjust their remedies so as to grant the necessary relief.And it is also well settled that where legal rights havebeen invaded, and a federal statute provides for a generalright to sue for such invasion, federal courts may use anyavailable remedy to make good the wrong done.

Id. at 684 (footnotes omitted); see also Franklin v. GwinnettCo. Pub. Schs., 503 U.S. 60, 70-71 (1992) (“[A]bsent cleardirection to the contrary by Congress, the federal courts havethe power to award any appropriate relief in a cognizablecause of action brought pursuant to a federal statute”); Justicev. Pendleton Place Apartments, 40 F.3d 139, 143 (6th Cir.1994) (stating that the burden is on the defendant todemonstrate that Congress did not intend requested relief).

The majority opinion is replete with references to Title IX,

but nowhere does it examine closely the statute’s provisions.I submit that to engage in a proper analysis, we must look tothe Act itself. The pertinent language of Title IX states: “Noperson in the United States shall, on the basis of sex, beexcluded from participation in, be denied the benefits of, orbe subjected to discrimination under any education programor activity receiving Federal financial assistance[.]” 20U.S.C. § 1681(a). When Title IX was enacted in 1972, it waspatterned after Title VI of the Civil Rights Act of 1964, 42U.S.C. § 2000d et seq., which banned racial discrimination infederally funded programs. See Cannon v. University of

No. 97-6264 Horner, et 

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7Title IX provides that “[n]o person i

basis of sex, be excluded from participatior be subjected to discrimination under anreceiving Federal financial assistance[.]” us to Plaintiffs’ contention that outhat they had stated a prima facie cnot correct, as an examination of ou

Initially, Horner I discussed th

determining whether Defendants IX’s equal opportunity mandate.7 that the regulations implemnondiscriminatory requirements independent requirement that an iseparate teams for each sport it san34 C.F.R. § 106.41(b)). The pregulations do require that institutequality of athletic opportunity to iC.F.R. § 106.41(c)). This requirefactors, including “‘[w]hether thlevels of competition effectively aand abilities of members of both C.F.R. § 106.41(c)(1)). 

In making this assessment, the H

the Department of Health, EducatInterpretation of 1979. See id. accommodation requirement of 34 institution must effectively accommsexes in both the selection of the competition, to the extent necessaropportunity.” Id. (citing PolicVII.C.1., 44 Fed. Reg. at 71,417) (

Regarding the interests of the stu

“the Policy Interpretation instructs the institution must be nondiscrdisadvantage members of an un
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(citing Policy Interpretation, Section VII.C.3., 44 Fed. Reg. at71,417). The court held:

The district court found that plaintiffs have anunrestricted opportunity to compete based upon theinterests of the member schools. However, the interests

of the member schools is not necessarily identical withthat of the students, a question on which the record iscompletely silent. At best, the record reflects that 17

percent of the member schools were interested in havingfast-pitch softball sanctioned. The interest of femalestudents at other schools is unknown, because there is noinformation regarding whether the member schoolspolled their students before responding, or failing torespond, to the KHSAA’s survey. 

Id. (emphasis added).

Regarding the selection of sports, the Horner I panel noted

that Title IX Plaintiffs must establish that:

(1) The opportunities for members of the excluded sexhave historically been limited;(2) There is sufficient interest and ability among themembers of the excluded sex to sustain a viable team anda reasonable expectation of intercollegiate competitionfor that team; and(3) Members of the excluded sex do not possesssufficient skill to be selected for a single integrated team,or to compete actively on such team if selected.

Id. at 274 (quoting Policy Interpretation, Section VII.C.4.b.,44 Fed. Reg. at 71,418). 

Regarding these factors, the Horner I panel held that there

was record evidence to support the first requirement, but notthe second or third:

With respect to subsection (1), there is evidence in therecord that the opportunities for girls were, and are, more

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standing with the college’s addesignating the applicant as a “recthat college softball coaches wvaluable scholarship monies, or oefforts to Kentucky high school sKentucky’s softball players were unfast-pitch game. Kentucky’s high course, faced no such impediment

Recently, a district court obser

“[f]or too long, the girls’ softbaathletic opportunity equal to thDaniels v. School Bd. of Brevard 1458, 1462 (M.D. Fla. 1997). Tappeal is whether the district courPlaintiffs produced no evidiscrimination” as a predicate for damages. An answer to this questithe definition of “intentional discrPlaintiffs urge us to apply a “knoindifference” standard for “intentioPlaintiffs contend that so long as Dthe discriminatory effect of their fasoftball, but nevertheless failed tcomply with Title IX’s mandatesviolated Title IX. Defendants discrimination” under Title IX “discriminatory animus” against P

The majority suggests in dicta 

correct in their choice of standardlose as a matter of law in either cconclusions. First, the Supreme C“deliberate indifference” standard is intentionally violated. See Davis 119 S.Ct. 1661, 1675 (1999). Furthcourt clearly misread the holding obelieve the majority essentially rewits reasoning in this case, the majo
26 Horner, et al. v. Kentucky High

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__________________

DISSENT

__________________

NATHANIEL R. JONES, Circuit Judge, dissenting. The

majority finds it unnecessary to remand this case despite themagistrate court’s clear error in applying this Court’s holdingin Horner I. The majority also suggests in dicta that we usea discriminatory animus standard, rather than a deliberateindifference standard, in assessing the deprivation ofeducational opportunities to Kentucky’s female high schoolsoftball players. In my view, Supreme Court precedentclearly dictates that we use a deliberate indifference standardin assessing Plaintiffs’ claim. I also believe that Plaintiffsshould be afforded the opportunity to meet this deliberateindifference standard below--an opportunity of which theywere deprived by the magistrate court’s misreading of thisCourt’s decision in Horner I. Accordingly, I respectfullydissent.

I.

We have already delineated the contours of this lawsuit in

a previous decision. Although defendant Kentucky HighSchool Athletic Association (“Association”) sanctions boys’baseball, it did not recognize “fast-pitch” softball--thepractical equivalent of baseball for female athletes--prior tothe filing of this lawsuit. See Horner v. Kentucky High Sch.

Athletic Ass’n, 43 F.3d 265, 269 (6th Cir. 1994). The essenceof Plaintiffs’ complaint was that because of Defendants’failure to recognize fast-pitch competition in Kentucky highschools, Kentucky’s female high school softball players wereat a disadvantage in competing for the collegiate benefits andopportunities enjoyed by Kentucky’s male high schoolbaseball players. For example, a significant number ofcolleges offer financial assistance in the form of athleticscholarships for softball players. See id. Moreover, it seems

a given that many college coaches can improve an applicant’s

No. 97-6264 Horner, et 

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limited than those for boys. Wi(2), the level of interest of all hpitch softball is unknown. With rthe record reflects only that girls playing on the boys’ baseball tea

disclose whether and to what ex

Id. at 274 (emphasis added). Thassertions on appeal, this court did Plaintiffs had met their initial burd

The panel also set forth th

Interpretation to assess an accommodation of the students’ intlevels of competition:

(1) Whether the intercollegiaopportunities for males and femain numbers substantially proportenrollments; or(2) Where the numbers of one underrepresented among intercolthe institution can show a history of program expansion which is dto the developing interest and abthat sex;(3) Where the members of one samong intercollegiate athletes, ashow a continuing practice of prothat cited above, whether it can binterests and abilities of the mebeen fully and effectively accomprogram.

Id. (quoting Policy Interpretation, Reg. at 71,418). 

Regarding these factors, the orig
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The plaintiffs bear the burden of proof on subsection

(1), that of showing statistical disparity.[FN8] Roberts,

998 F.2d at 828; Cohen, 991 F.2d at 901. Substantialproportionality provides a safe harbor for recipients offederal funds. . . . If the plaintiffs prove disparity, thenthe institution must show that it satisfies subsection (2).If it fails here, the plaintiffs may prevail by sustainingtheir burden of proof under subsection (3) anddemonstrating an unmet interest on the part of theunderrepresented sex. Roberts, 998 F.2d at 830-31;Cohen, 991 F.2d at 901. Subsection (3) “‘sets a highstandard: it demands not merely some accommodation,but full and effective accommodation. If there issufficient interest and ability among members of thestatistically underrepresented gender, not slaked byexisting programs, an institution necessarily fails thisprong of the test.’” Roberts, 998 F.2d at 831-32 (quoting

Cohen, 991 F.2d at 898).

FN8. Although the record is silent on this point, the

court was informed at oral argument that 33,891boys (65 percent) participate in sanctioned sports inKentucky, while only 18,860 girls (34.8) percentparticipate. 

Id. at 275 (emphasis added). We therefore concluded that:

It is evident that genuine issues of material fact abound

in this case, and preclude any determination thatdefendants have complied with Title IX’s equalopportunity mandate. We therefore reverse the districtcourt’s entry of summary judgment on plaintiffs’ Title IXclaims. 

Id. Again, the Horner I panel did not hold that Plaintiffs had

met their burden under Rule 56 of the Federal Rules of CivilProcedure. In fact, we specifically noted that the record wassilent on statistical disparity. The only proof Plaintiffs offeredon remand was that of statistical disparity, in support of their

No. 97-6264 Horner, et 

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and it is not properly before this CCo. v. Atlantic Richfield. 13 F.3d 1

In short, Plaintiffs have not show

parties because they did not obtain an injunction, a declaratory judgmaltering the legal relationship betwFurther, based on the record, Plaintthat their lawsuit was an importachanging the law. 

III. CONCLU

Accordingly, the judgment o

AFFIRMED.
24 Horner, et al. v. Kentucky High

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the denial of a motion for attorneys’ fees for an abuse ofdiscretion. See Jones v. Continental Corp., 789 F.2d 1225,

1229 (6th Cir. 1986). 

To recover attorneys’ fees under 42 U.S.C. § 1988, a party

must be a prevailing party. To be a prevailing party, a partymust receive at least some relief on the merits of his claimsuch as a judgment, an injunction, or a consent decree. SeeHewitt v. Helms, 482 U.S. 755, 760-61 (1987). 

Plaintiffs claim that Defendants changed their policies and

practices because of their lawsuit. The District Court,however, found no evidence for this claim. The recordreflects that Defendants changed their policies only after theKentucky General Assembly amended Ky. Rev. Stat.§ 156.070, directing Defendants to promulgate regulations toprovide fast-pitch softball. Plaintiffs offered no recordevidence that their lawsuit caused the Kentucky GeneralAssembly to amend Ky. Rev. Stat. § 156.070. The districtcourt’s finding that Plaintiffs were not prevailing parties is,therefore, not clearly erroneous.

Nevertheless, a plaintiff who is not a prevailing party under

§ 1988, may also recover attorneys' fees if the lawsuit was the

primary “catalyst” for causing a defendant to change itsconduct favorably toward the plaintiff. See Payne, 88 F.3d at397. The catalyst theory applies a two-part test. First, theplaintiff's lawsuit must be a necessary and important factor inachieving the relief sought. Second, the plaintiff must provethat the changed conduct was required because of a violationof the law. See id. at 397-98.

Plaintiffs have not demonstrated that their lawsuit was a

necessary and important factor in changing the twenty-fivepercent rule. Plaintiffs offer an affidavit from a member ofthe Kentucky General Assembly stating that Plaintiffs’counsel advised her on amending Ky. Rev. Stat. § 156.070.However, Plaintiffs did not enter this affidavit into the record

No. 97-6264 Horner, et 

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statements at oral argument. Plairemand that their interests were npolicy allowing them to play on teams. As the dissent in Horner I 

read with the implementing reinterpretation, places the burdedisparity and unmet interest squarplaintiffs.” Id. at 277 (BatcheldRoberts v. Colorado State Bd. of n.5 (10th Cir. 1993); Cohen v. Br901-01 (1st Cir. 1993)). 

In sum, the Horner I panel did no

out a prima facie case of a Title IX that Plaintiffs had established the prima facie case. Notably, the Hadvised Plaintiffs of the proof neTitle IX claim, and granted a remanof the record. Notwithstanding, usummary judgment by Defendastatistical disparity, Plaintiffs sadditional evidence that Title IX’s had been violated, let alone intentpredicate violation, it is axiomaintentional violation of Title IX. Tdissent, there can be no “actual indifference” to Plaintiffs’ unmeaffirm the district court’s grant although on slightly different grou

Nevertheless, even if we assu

established their prima facie casethey failed to establish an intentionthis record, there is no evidence See Bray v. Alexandria Women’s H269-70 (1993) (defining discrimwomen in an action under 42 U.Spurpose that focuses upon women directed specifically at a women 
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8As we noted in the equal protection context in Horner I:

Determining whether invidious discriminatory purpose was amotivating factor demands a sensitive inquiry into suchcircumstantial and direct evidence of intent as may be available.The impact of the official action – whether it “bears moreheavily on one race than another,” – may provide an importantstarting point. Sometimes a clear pattern, unexplainable ongrounds other than race, emerges from the effect of the stateaction even though the governing legislation appears neutral onits fact. The evidentiary inquiry is then relatively easy. But suchcases are rare.

Horner I, 43 F.3d at 276 (quoting Village of Arlington Heights

Metropolitan Hous. Dev.Corp., 429 U.S. 252, 266 (1977)).

U.S. at 279 (stating in the equal protection context that“‘discriminatory purpose’ . . . implies more than intent asvolition or intent as awareness of consequences”). Plaintiffsoffered no evidence of discriminatory intent.8 Nor is there any

proof under the dissent’s proposed standard. Plaintiffs havesimply not established that Defendants had actual knowledgeof the discriminatory effect of their facially neutral rule, yetfailed to remedy the violation. In any event, Plaintiffs’ andthe dissent’s position is really a “constructive” noticeargument under the guise of the deliberate indifference test:Because there was a boys’ fast-pitch softball team and not agirls’ fast-pitch softball team, Defendants must have knownthat they were treating girls differently than boys; Defendants,as federal funding recipients, are charged with notice of theTitle IX law, which prohibits gender discrimination;Defendants were therefore in knowing violation of Title IX.

This reasoning is flawed because it reads Title IX as

requiring perfect parity. However, as just discussed, all thestatute and implementing regulations require is equality ofathletic opportunity. The statute itself does not require genderbalance. See 20 U.S.C.A. §1681(b)(West 1990) (providingthat “[n]othing contained in subsection (a) of this section shallbe interpreted to require any educational institution to grantpreferential or disparate treatment to the members of one sex

No. 97-6264 Horner, et 

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on account of an imbalance which the total number or percentage 

participating in or receiving thsupported program or activity, in number or percentage of persocommunity, State, section, or other at 829 n.5. Further, in certain insmales and females are allowed. S(1998) (permitting separate spofemales where selection for the teaskill or is a contact sport). As we pregulations themselves do not requirement that an institution alwfor all sanctioned sports. See Horn34 C.F.R. § 106.41(b)). Thus, iDefendants to be on notice that theIX simply because they sponsorsoftball. Finally, it is undisputefemale athletes to try out for traditiocontact sports. Absent any evidencnot adequately meet girls’ needs anfinding that Defendants knowinglIX rights.

3. Gender Class

For the first time on appeal, Plain

violated Title IX because the KHSgender. For the reasons stated, claa per se violation of Title IX. Iforfeited. 

B. Attorneys

Plaintiffs also claim that they 

purposes of awarding attorneys’ fefactual determination that a party clear error. See Payne v. Board Schools, 88 F.3d 392, 397 (6th Cir.