1RECOMMENDED FOR FULL-TEXT PUBLICATIONPursuant to Sixth Circuit Rule 206ELECTRONIC CITATION: 2000 FED App. 0096P (6th Cir.)File Name: 00a0096p.06UNITED STATES COURT OF APPEALSFOR THE SIXTH CIRCUIT_________________LORRIEANNHORNER, by andthrough her father nfr HaskelHorner; JENNIFERBAKER, byand through her father nfrDouglas Baker;JULIANABROWN, by and through herfather nfr Michael Brown;ANGELLACHAFFIN, by andthrough her father nfr DaleChaffin; TRACYDOTSON, byand through her father nfrSherman Dotson; JACQUELINEELSTON, by and through herfather Joseph Elston; AMYHACKER, by and through herfather nfr Chris Hacker;ELIZABETHSUZANNEHARTLAGE, an adult; KELLYJOHNSON, by and through herfather nfr Charles Johnson;MARYCHRISTINEWHITELOCK, an adult,Plaintiffs-Appellants,LESLIEBURGETT, by andthrough her father nfr Billy;>No. 97-62642Horner, et al. v. Kentucky HighSch. Athletic Ass’n, et al.No. 97-6264Burgett; BARRIEWAGERS, byand through her father nfrLyde Wagers,Plaintiffs,v.KENTUCKYHIGHSCHOOLATHLETICASSOCIATION;KENTUCKYSTATEBOARDFORELEMENTARY ANDSECONDARYEDUCATION,Defendants-Appellees.1Appeal from the United States District Courtfor the Western District of Kentucky at Louisville.No. 92-00295—Edward H. Johnstone,Senior District Judge.Argued: February 3, 1999Decided and Filed: March 20, 2000Before: JONES, NORRIS, and SUHRHEINRICH, CircuitJudges._________________COUNSELARGUED: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. 97-6264Horner, et al. v. Kentucky HighSch. Athletic Ass’n, et al.3Wright, GREENEBAUM, DOLL & McDONALD,Lexington, Kentucky, Robert E. Stopher, BOEHL, STOPHER& GRAVES, Louisville, Kentucky, for Appellees.SUHRHEINRICH, J., delivered the opinion of the court, inwhich NORRIS, J., joined. JONES, J. (pp. 26-41), delivereda separate dissenting opinion._________________OPINION_________________SUHRHEINRICH, Circuit Judge. Plaintiffs, a group offemale student athletes attending Kentucky high schools,appeal following remand from the district court’s ordergranting summary judgment to Defendant state school boardand school athletic association on Plaintiffs’ claim of sexualdiscrimination under Title IX of the Education Amendmentsof 1972, as amended by the Civil Rights Restoration Act of1987 (20 U.S.C. §1681) ("Title IX"). Plaintiffs also appealthe denial of their post-judgment motion for attorneys’ fees.WeAFFIRM.I. BACKGROUNDIn 1992, Plaintiffs sued Defendants Kentucky High SchoolAthletic Association (“Association”) and the Kentucky StateBoard for Elementary and Secondary Education (“Board”),claiming that the Association's failure to sanction fast-pitchsoftball violated the Equal Protection Clause of theFourteenth Amendment, 42 U.S.C. §1983, Title IX, Section3 of the Constitution of the Commonwealth of Kentucky, andTitle XXVII, Labor and Human Rights, Chapter 344, CivilRights (Ky. Rev. Stat. Ann. § 344.020(1)(b) (Banks-Baldwin1997)). Specifically, Plaintiffs alleged that Defendants’failure to sponsor fast-pitch softball for female studentsdiminished the ability of female student athletes to competefor college fast-pitch softball athletic scholarships whencompared with male student athletes who played high school4Horner, et al. v. Kentucky HighSch. Athletic Ass’n, et al.No. 97-6264baseball 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 “25percent” 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 forsummary 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 Iaffirmed the judgment for Defendants onPlaintiffs’ equal protection claim because Plaintiffs failed toprove that Defendants intentionally discriminated againstthem, as required by the Equal Protection Clause.See id. at276. 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. TheHorner Ipanel reversed thejudgment for Defendants on Plaintiffs’ Title IX claim,however, finding that issues of fact “abound[ed].”See id.at275.While Plaintiffs’ first appeal was pending in this Court, theKentucky General Assembly amended the statute regulatingNo. 97-6264Horner, et al. v. Kentucky HighSch. Athletic Ass’n, et al.41119 S.Ct. at 1671.discriminatory effect is a requirement of Title IX. BecauseDefendants are charged with knowledge of the law, but didnot recognize fast-pitch softball until 1994, it follows thatremand is appropriate to determine whether Defendants weredeliberately indifferent to Plaintiffs’ Title IX rights.For the foregoing reasons, I would reverse the districtcourt’s dismissal of Plaintiffs’ claims of monetary relief andremand for a determination of whether Defendants weredeliberately indifferent to Plaintiffs’ Title IX rights inaccordance withDavis. I would also reserve judgment as towhether Plaintiffs were “prevailing parties” for attorney feespurposes until after the remand.V.Because I believe that the basis for the majority’saffirmance is contrary to the remedial purposes of Title IX, Idissent.40Horner, et al. v. Kentucky HighSch. Athletic Ass’n, et al.No. 97-62644The Policy Interpretation has been cited with approval by severalcourts, 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 regulationsfailed to garner a majority view inGuardians,see463 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 theAlexanderCourt limitedGuardiansto Title VI cases wasbecause, 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’senforcement 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). InAlexander,the Courttheorized 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 wasenacted only one year before § 504, it seems safe to suggest that the sameimplicit assumption applies to Title IX. Indeed, becauseDavisrelies onthe Department of Education’s Title IX regulations as providing adequatenotice to defendants of their Title IX obligations,Davisis a validation ofJustice 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).4The PolicyInterpretation 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 also34 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).5Providing an environment free fromNo. 97-6264Horner, et al. v. Kentucky HighSch. Athletic Ass’n, et al.51The following language was added to this bylaw, effective for the1995-96 school year:To qualify as having “sponsored” a sport, a school must be ableto demonstrate the following:(1) If similar versions of a particular sport exist and there aredifferences in the scholarship opportunities at the NCAA levelin that sport, a survey must be taken of the student population atreasonable times and places to determine the level of interest inthe sport(s).(2) If said survey reveals sufficient interest to field the normalsquad required for play in the particular sport and if any versionof the sport is to be played, the school shall make facilities, staff,and other allowances to properly field a team in the version ofthe sport for which the NCAA members offer scholarships.KHSAA Bylaw 40 §2(1), (2).high school sports.SeeKy. Rev. Stat. § 156.070(2) (BanksBaldwin 1995) (effective July 15, 1994). Where a schooloffered one of two similar sports, the amended statutedirected the Board and the Association to promulgateregulations to offer the sport for which the NationalCollegiate Athletic Association (“NCAA”) offers athleticscholarships. In response to the passage of § 156.070(2), theAssociation amended its Bylaw 40, to state:If a member school sponsors or intends to sponsor anathletic activity that is similar to a sport for which NCAAmembers offer an athletic scholarship, the school shallsponsor the athletic activity or sport for which thescholarships are offered. The athletic activities which aresimilar to sports for which NCAA members offerscholarships are: Girls' fast pitch softball as compared toslow pitch.KHSAA Bylaws, Div. IV, Bylaw 40.16Horner, et al. v. Kentucky HighSch. Athletic Ass’n, et al.No. 97-6264On remand, the district court again granted summaryjudgment 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 forattorneys’ 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. DISCUSSIONOn appeal, Plaintiffs challenge the district court’s refusal togrant money damages under Title IX and its denial of theirrequest for attorneys’ fees.A. Compensatory DamagesPlaintiffs argue that the district court erred in grantingsummary judgment because theHorner Ipanel did not holdthat 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 RequirementPlaintiffs contend that a lack of intentional discriminationdoes not always preclude a plaintiff from recovering moneydamages under Title IX. Plaintiffs’ claim notwithstanding,No. 97-6264Horner, et al. v. Kentucky HighSch. Athletic Ass’n, et al.39Defendants have complied with Title IX’s equal opportunitymandate.” 43 F.3d at 275. On this basis, it reversed thedistrict court’s entry of summary judgment for Defendants.Nevertheless, the majority now states thatHorner I“did nothold that Plaintiffs made out a prima facie case of a Title IXviolation,”Anteat 21, and proceeds to grant summaryjudgment. I believe that rather than givingHorner Iits propereffect, this reading simply echoes the dissent inHorner I,which also reasoned that because Plaintiffs “did not presenta prima facie case of a Title IX violation,” summary judgmentshould have been granted on the Title IX claim. 43 F.3d at276 (Batchelder, J., dissenting in part). Similarly, when thecurrent majority now concludes that summary judgment iswarranted because Plaintiffs have “failed to offer anyadditional evidence” that Title IX had been violated, it againruns roughshod over theHorner Iconclusion that there wasa sufficient dispute in the record to withstand summaryjudgment. Yet again, the majority’s conclusion more closelyadheres to theHorner Idissent, which found the record“silent or otherwise inadequate” on the issues “upon whichthe plaintiffs’ case depends,” and which castigated thePlaintiffs’ statistics showing a disparity between boys’ andgirls’ participation in Kentucky high school sports. 43 F.3dat 277 (Batchelder, J., dissenting in part). In sum, I do notbelieve this Court should stamp its approval on the districtcourt’s clear mishandling of theHorner Iremand, let alonerewrite the conclusion ofHorner I’smajorityin the voice ofits dissent.Second, contrary to the majority, I believe it is certainlypossible that the standards of notice and deliberateindifference could be met in this case. Defendants were, afterall, the sole entities that could sanction interscholastic sportsin Kentucky, and implemented slow pitch softball in 1982.Nor can Defendants argue that they would be unfairly“surprised” by imposition of a monetary award, as were thedefendants inGuardians. Three years before Defendantssanctioned slow-pitch softball, the Department of Health,Education and Welfare issued its Policy Interpretation of Title38Horner, et al. v. Kentucky HighSch. Athletic Ass’n, et al.No. 97-6264caused 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 overlookthe 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 theHorner Iopinionestablished that there was no intentional discrimination forTitle IX purposes as a matter of law.Anteat 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 theHorner 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 ofHorner I, rather than remanding for the districtcourt 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’sdiscussion improperly revisits and re-decides the disputealready resolved byHorner I. Over a dissent, theHorner Imajority concluded that “genuine issues of material factabound in this case, and preclude any determination thatNo. 97-6264Horner, et al. v. Kentucky HighSch. Athletic Ass’n, et al.7proof of intent, however defined, is thesine qua nontocompensatory relief for any type of Title IX violation.Abrief history of the key Title IX cases makes that clear. In allof the relevant cases, the Supreme Court has consistentlyinvoked a “contract” rationale: that under Spending Clauselegislation, the relationship between the government and thefederal funding recipient is consensual. A recipient shouldtherefore not be subject to money damages unless it has noticethat it will be liable for the conduct at issue.In 1979, the Supreme Court first construed an impliedprivate right of action under Title IX.See Cannon v.University of Chicago, 441 U.S. 677 (1979). The Courtreasoned that because Title IX was patterned after Title VI ofthe Civil Rights Act of 1964, which has been construed ascontaining an implied private right of action, “[t]he draftersof Title IX explicitly assumed that it would be interpreted andapplied as Title VI had been [interpreted and applied].”Id.at696.See also Guardians Ass’n v. Civil Serv. Comm’n of NewYork City,463 U.S. 582, 594 (1983) (plurality) (noting that amajor part of the analysis inCannonwas “that Title IX hadbeen derived from Title VI, that Congress understood thatprivate remedies were available under Title VI, and thatCongress intended similar remedies to be available underTitle IX”).The relationship between monetary damages and proof ofintent emerged inGuardians, a Title VI case. There, Blackand Hispanic police officers sued for damages under Title VI,alleging that their layoffs under the police department’s lasthired, first-fired policy were discriminatory. The plaintiffofficers claimed that the policy disproportionately affectedthem because they had lower scores on qualifyingexaminations than White applicants and accordingly werehired later than higher scoring White applicants. Thus, whenit came layoffs, Black officers were laid-off before Whiteofficers who had been hired before plaintiffs because of theirhigher qualifying examinations. The district courtacknowledged the discriminatory impact of the policy but,8Horner, et al. v. Kentucky HighSch. Athletic Ass’n, et al.No. 97-62642Justice White explained the fractured votes as follows:Despite the numerous opinions, the views of at least fiveJustices 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.Seen.2,supra. A different majority, however, would not allowcompensatory relief in the absence of proof of discriminatoryintent. Justice REHNQUIST and I reach this conclusiondirectly.SeeParts 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 VIrequires 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.2Although his rationale for thisruling did not gain a majority, Justice White explained that:We have also indicated that “make whole” remediesare 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. 97-6264Horner, et al. v. Kentucky HighSch. Athletic Ass’n, et al.37the present situation.”Anteat 13. On the other hand, themajority concludes,Guardiansis this case’s “equivalent.”Id.Given thatDavisholds that Title IX’s regulations put federalfunding recipients on notice of their contractual duties, andgiven that the regulations state that Title IX is violated whena school’s athletic policies are discriminatory in effect, themajority’s distinguishing ofDavisis without significance.Furthermore, I can discern no practical difference betweenDefendants’ “neutral policy” and a university’s failureaffirmatively to gauge the interest for fast-pitch softballamong its student body. I find it incongruent that liabilityunder the former should be measured by an “animus”standard while the latter by a “deliberate indifference”standard even though both violations arise under the samestatute.I also believe that such a distinction finds no support inDavis,as the Court again reminded us that Title IX protectsstudents, not schools:Consider, for example, a case in which male studentsphysically threaten their female peers every day,successfully preventing the female students from using aparticular school resource–an athletic field or a computerlab, for instance. District administrators are well awareof the daily ritual, yet they deliberately ignore requestsfor aid from the female students wishing to use theresource. The district’s knowing refusal to take anyaction in response to such behavior would fly in the faceof Title IX’s core principles, and such deliberateindifference may appropriately be subject to claims formonetary damages.Davis,119 S.Ct. at 1675. I fail to see why the above rule doesnot apply to Defendants in this case. If a Title IX defendantintentionally deprives a student of educational opportunitieswhen it fails to curb harassment caused by third parties, thensurely a defendant likewise intentionally deprives students ofthose opportunities when it fails to rectify athletic inequities36Horner, et al. v. Kentucky HighSch. Athletic Ass’n, et al.No. 97-62641016 (5th Cir. 1996) (allowing recovery only upon showingthat school responded to harassment claims differently on thebasis of gender)). RejectingRowinskyand 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,Davismakes abundantly clear that the crucialfactor determining whether a defendant has intentionallyviolated Title IX is notice. Besides,Daviswas hardly arevolutionary opinion. Rather, the decisionmarks the thirdtime that the Court has articulated a “deliberate indifference”standard for Title IX liability in this decade. BothGebserandFranklininvolved a Title IX lawsuit filed against a schooldistrict after a teacher had sexually abused the studentplaintiff. InFranklin,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 hadnotintentionally 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 ofGebserandDavisis unclear because they “are not readily analogous toNo. 97-6264Horner, et al. v. Kentucky HighSch. Athletic Ass’n, et al.9101 S. Ct. 1531, 1539, 67 L. Ed.2d 694 (1981). This isbecause the receipt of federal funds under typicalSpending Clause legislation is a consensual matter: theState or other grantee weighs the benefits and burdensbefore accepting the funds and agreeing to comply withthe conditions attached to their receipt. . . .Id.at 596 (White, J.).InFranklin v. Gwinnett County Public Schools.,503 U.S.60, 74 (1992), the Supreme Court explicitly established thatthe implied right of action under Title IX inCannonprovidesa damages remedy. InFranklin, a student sued a schooldistrict under Title IX, alleging that the school district knewthat she had been sexually harassed by a teacher, but didnothing. The Court held that damages were not available forTitle IX violations from the school district unless thediscrimination was intentional. Significantly,Franklincharacterized the holding ofGuardiansthe following way:Though the multiple opinions inGuardianssuggest thatthe difficulty of inferring the common ground among theJustices in that case, a clear majority expressed the viewthat damages were available under Title VI in an actionseeking remedies for an intentional violation, and noJustice challenged the traditional presumption in favor ofa federal court’s power to award appropriate relief in acognizable cause of action.Id.at 70.Justice White, this time writing for the majority, applied thesame Spending Clause analysis to Title IX that he used inGuardiansunder Title VI:InPennhurst State School and Hospital v. Halderman,. . . the Court observed that remedies were limited undersuch Spending Clause statutes when the alleged violationwasunintentional. Respondents and the United Statesmaintain that this presumption should equally apply to10Horner, et al. v. Kentucky HighSch. Athletic Ass’n, et al.No. 97-6264intentionalviolations. We disagree.The point of notpermitting 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).Franklindid not, however, define the contours of theschool district’s liability in such a situation.Gebser v. Lago Vista Independent School District, 524U.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. InGebser, 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 ourconstruction 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 receivingNo. 97-6264Horner, et al. v. Kentucky HighSch. Athletic Ass’n, et al.351982) (compensatory relief available for § 504 plaintiff; complaint gavedefendants adequate notice that they were charged with violating federalantidiscrimination mandates);Love v. McBride,896 F. Supp. 808, 810(N.D. Ind. 1995) (refusing to accommodate plaintiff despite repeatedrequests for access amounted to intentional discrimination),aff’d103 F.3d558 (7th Cir. 1996).In each of these cases, the federal funding recipient denied equalopportunity to the § 504 plaintiff by refusing to provide anaccommodation for the plaintiff’s disability. Surely there was no“animus” against the disabled plaintiff either individually or as a class inthese cases. Rather, these defendants were “indifferent” to their federalobligations– very much like defendants in Title IX athletic cases.Nonetheless, the statutory violations were still “intentional” because thedefendants had full knowledge of their own discriminatory conduct. Asthe Second Circuit explained:[I]ntentional discrimination may be inferred when a“policymaker acted with at least deliberate indifference to thestrong likelihood that a violation of federally protected rightswill result from the implementation of the [challenged] policy. . . [or] custom.”Ferguson v. City of Phoenix, 931 F. Supp.688, 697 (D. Ariz.1996),aff’d and remanded,[157 F.3d 668(9th Cir. 1998)] . . . ;see alsoCanton v. Harris, 489 U.S. 378,385, 109 S. Ct. 1197, 103 L. Ed. 2d 412 (1989).Bartlett,156 F.3d at 331. The Second Circuit’s understanding of“intentional discrimination” is in perfect accordance with the SupremeCourt’s decision inDavis.Finally, and most significantly, the Court was recentlypresented inDaviswith an opportunity to apply the animusstandard as a requisite for monetary recovery under Title IX,but instead ruled that a “deliberate indifference” standardwould support a finding of intentional discrimination. InDavis,the plaintiff brought a Title IX action after hercomplaints of sexual harassment by a fellow classmate wereignored by school officials.See Davis,119 S.Ct. at 1666-67.The Court noted that the circuits were split for the standard ofintentional discrimination in Title IX sexual harassment cases,and that one circuit had endorsed the “animus” standard formonetary recovery in Title IX cases.See id.at 1668-69(citingRowinsky v. Bryan Indep. Sch. Dist.,80 F.3d 1006,34Horner, et al. v. Kentucky HighSch. Athletic Ass’n, et al.No. 97-62642Bartlettwas vacated in light of the Supreme Court’s recent decisionslimiting the scope of “disability” under the ADA.See Sutton v. UnitedAir 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 findBartlett’s discussion of damagesto be a correct statement of the law.3Incidentally, courts have been very hesitant to hold § 504 plaintiffsto 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);2Moreno 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 keptwithin its proper bounds is further supported by subsequentSupreme Court decisions. A unanimous Court explained theGuardiansholding 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 theGuardiansCourtdid indeed limit compensatory relief to cases of intentionaldiscrimination involving discriminatory animus, such alimitation would have been acknowledged inConsolidatedRail Corporation’sexplanation ofGuardians. See Bartlett,970 F. Supp. at 1148-49. Additionally, another unanimousCourt explicitly limitedGuardiansto situations involving“factors peculiar to Title VI” when it refused to read an intentrequirement in § 504 of the Rehabilitation Act of1973, 29U.S.C. § 701et seq., which was another Spending Clauseantidiscrimination statute.See Alexander v Choate,469 U.S.287, 294-95 n.11 (1985).3No. 97-6264Horner, et al. v. Kentucky HighSch. Athletic Ass’n, et al.113TheGebsercourt also explained the distinction between Title IXand VII:That contractual framework distinguishes Title IX from TitleVII, which is framed in terms not of a condition but of anoutright prohibition. Title VII applies to all employers withoutregard to federal funding and aims broadly to “eradicat[e]discrimination throughout the economy.”Landgraf v. USI FilmProducts,511 U.S. 244, 254, 114 S. Ct. 1483, 1491,128 L.Ed.2d 229 (1994) (internal quotation marks omitted). Title VII,moreover, seeks to “make persons whole for injuries sufferedthrough past discrimination.”Ibid.(internal quotation marksomitted). Thus, whereas Title VII aims centrally to compensatevictims of discrimination, Title IX focuses more on “protecting”individuals from discriminatory practices carried out byrecipients of federal funds.Cannon, supra,at 704, 99 S. Ct., at1961-62. That might explain why, when the Court firstrecognized the implied right under Title IX inCannon, theopinion referred to injunctive or equitable relief in a privateaction,see441 U.S., at 705, and n. 38, 710, n. 44, 711, 99 S. Ct.,at 1962, and n.38,1964, n. 44, 1965, but not to a damagesremedy.entity of federal funds [has] notice that it will be liablefor a monetary award.” Justice White’s opinionannouncing the Court’s judgment inGuardiansAssn. vCivil Serv. Comm’n of New York City, for instance,concluded that the relief in an action under Title VIalleging unintentional discrimination should beprospective only, because where discrimination isunintentional, “it is surely not obvious that the granteewas aware that it was administering the program inviolation of the [condition].” We confront similarconcerns here. If a school district’s liability for ateacher’s sexual harassment rests on principles ofconstructive notice orrespondeat superior,it willlikewise be the case that the recipient of funds wasunaware of the discrimination. It is sensible to assumethat Congress did not envision a recipient’s liability indamages in that situation.Gebser, 118 S. Ct. at 1998 (citations omitted).312Horner, et al. v. Kentucky HighSch. Athletic Ass’n, et al.No. 97-6264Gebser, 118 S. Ct. at 1997-98.Most recently, inDavis v. Monroe County Board ofEducation,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, theDavisCourt held thatprivate 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. Universityof 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 theNo. 97-6264Horner, et al. v. Kentucky HighSch. Athletic Ass’n, et al.331Justice White summarized the various votes as follows:Despite the numerous opinions, the views of at least five Justiceson two issues are identifiable. The dissenters, JUSTICESBRENNAN, MARSHALL, BLACKMUN, and STEVENS, joinwith me to form a majority for upholding the validity of theregulations incorporating a disparate-impact standard.Seen. 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 III and IV,supra;post, at 612(REHNQUIST, J., concurring in judgment). JUSTICEPOWELL, joined by THE CHIEF JUSTICE,post, at 608-610,believes that no private relief should ever be granted under TitleVI under any circumstances. JUSTICE O'CONNOR,post, at615, would hold that all relief should be denied unlessdiscriminatory intent is proved. It follows from the views ofthese three latter Justices that no compensatory relief should beawarded if discriminatory animus is not shown.Id.at 463 U.S. at 607 n. 27 (White, J.).unintentional discrimination.1Of the seven opinions filed inthat case, only Justice White’s opinion suggested astandardfor “intentional discrimination.”See id.at 584 (“I concludethat . . . in the absence of proof of discriminatory animus,compensatory relief should not be awarded to private Title VIplaintiffs”) (White, J.);id.at 607 n.27 (same). Only one otherjustice joined Justice White on this issue.See id.at 612(Rehnquist, J., concurring in the judgment). Indeed, thisCourt has already declined to take an expansive reading ofJustice White’s opinion inGuardiansfor the very reason thatit did not command a majority of the Court.SeeNeighborhood Action Coalition v. Canton, Ohio,882 F.2d1012, 1015 (6th Cir. 1989);see also Bartlett v. New YorkState Bd. of Law Exam’rs,970 F. Supp. 1094, 1148-49 (S.D.N.Y. 1997),aff’d in relevant part,156 F.3d 321 (2d Cir.1998),vacated on other grounds,67 U.S.L.W. 3783 (June 24,32Horner, et al. v. Kentucky HighSch. Athletic Ass’n, et al.No. 97-6264athletic 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 centralgoalsSee Gebser,118 S.Ct. at 2005 (Stevens, J., dissenting).III.Moreover, I believe the standard itself rests on flimsy legalground. The sole source for the“discriminatory animus”standard is Justice White’s plurality opinion inGuardians,463 U.S. at 584-607 (White, J.). InGuardians,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 inGuardianswas “whether proof ofdiscriminatory intent [was] required to establish a violation ofTitle VI[.]”Id.at 615 (Marshall, J., dissenting). Sevenopinions were filed in theGuardianscase, in which aconsensus 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 ofNo. 97-6264Horner, et al. v. Kentucky HighSch. Athletic Ass’n, et al.13terms of the putative contract] if a State is unaware of theconditions [imposed by the legislation] or is unable toascertain what is expected of it.”Ibid;see also id., at 24-25, 101 S. Ct. 1531.Id.at __, 118 S. Ct. at 1669-70.Davisthus extended the ruleofGebserto student-on-student sexual harassment when theschool officials are aware of the misconduct but do nothing tostop it, despite its ability to exercise control over the situation.In sum, although the Supreme Court has not yet expresslyruled on the point, we think that it would likely hold thatproof of intentional discrimination is a prerequisite for moneydamages under Title IX when a facially neutral policy ischallenged under a disparate impact theory. As the precedingdiscussion illustrates, the Supreme Court has consistentlyapplied Justice White’s Spending Clause analysis as firstarticulated inGuardiansin its Title IX decisions. Given theconsensual relationship between federal agency and recipient,the recipient must be aware of the conditions attached to thereceipt of those funds. As Justice White remarked inFranklin, “The point of not permitting monetary damages foran unintentional violation is that the receiving entity offederal funds lacks notice that it will be liable for a monetaryaward.”Franklin, 503 U.S. at 74. The dissent, in suggestingthat we are ignoring Title IX’s remedial purposes, completelyignores this countervailing interest, which the intentrequirement seeks to accommodate. Thus, we conclude thatcompensatory damages under Title IX are available when afacially neutral policy is challenged only if an intentionalviolation is shown.This leaves the question of what standard to apply todetermine intent when a facially neutral policy is challenged.Currently, the only clear test in the Supreme Court is that of“deliberate indifference.” However, the cases from whichthat test arose,Franklin, Gebser,andDavis,all addressdeliberate indifference to sexual harassment, and are notreadily analogous to the present situation.See Pederson v.14Horner, et al. v. Kentucky HighSch. Athletic Ass’n, et al.No. 97-62644For example, a deliberate indifference test might be appropriatewhen 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 ofGuardians.InGuardians,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” ofFranklin, Gebser,andDavis;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 thediscriminatory animus and deliberate indifference tests mighthelp establish “intent” under Title IX when a facially neutralpolicy is challenged.4However, because of Plaintiffs’No. 97-6264Horner, et al. v. Kentucky HighSch. Athletic Ass’n, et al.31Yet, purported “unintentional” violations of Title IX arepervasive in our educational institutions even a quartercentury after the statute’s enactment. While much haschanged for female athletes since the passage of Title IX,much remains the same. According to the Department ofEducation, in 1997,[a]t the high school level, there are still about 24,000more boys’ varsity teams than girls’ teams; in college,women receive only one-third of all athletic scholarships;and, between 1992 and 1997, overall operatingexpenditures for women’s college sports programs grewonly 89 percent, compared to 139 percent for men,representing only 23 percent of the total operatingexpenses.United States Department of Education,Title IX: 25 Years ofProgress, Part 6 (1997). Another study conducted on TitleIX’s Silver Anniversary concluded that while there had been“significant gains” in athletic opportunities for female collegestudents,these gains still leave girls and women without their fairshare of opportunities to compete. Only 9 percent ofDivision I colleges provide athletic opportunities forwomen within 5 percentage points of women’s share ofenrollment. Even among Division I schools that do notsponsor football, only 16 percent even come close toproviding women with athletic opportunities inproportion to women’s enrollment in the student body.National Women's Law Center,Title IX at 25: Report Cardon Gender Equity(1997). This study gave educationalinstitutions an overall grade of “C” for Title IX compliance inathletic programs.Id.Despite these recent statistics, I am not aware of any TitleIX athletic-equality case in which the plaintiff could have metthe overdemanding “animus” standard of intentionaldiscrimination. As explained above, gender inequities in30Horner, et al. v. Kentucky HighSch. Athletic Ass’n, et al.No. 97-6264available 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 scholasticathletic 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 (2dCir. 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. 97-6264Horner, et al. v. Kentucky HighSch. Athletic Ass’n, et al.15establish the requisite intent.Recently, the Fifth Circuit held that the deliberate indifference testapplied in Title IX sexual harassment cases “ha[s]little relevance” indetermining whether an academic institution intentionally discriminatedon the basis of sex by failing to accommodate female athletes.SeePederson v. Louisiana State Univ., ___ F.3d ___, Nos. 94-3068, 95-30777, 96-30310, 97-30427, 97-30719, 2000 WL 19350, at * 21 (5th Cir.,Jan. 27, 2000). According toPederson, “[t]he proper test is not whether[the school district] knew of or is responsible for the actions of others, butwhether [the school district] intended to treat women differently on thebasis of their sex by providing them unequal athletic opportunity.”Id. AsthePedersoncourt observed, classifications based on “archaic”assumptions are facially discriminating, and “actions resulting from anapplication of these attitudes constitutes intentional discrimination.”Id.at * 20. However, as discussed, this case offers noproofof intentionaldiscrimination.5For this reason, we disagree with the dissent’s contention that “[a]nanswer to [the] question [of whether the district court correctly concludedthat the plaintiffs produced no evidence of “intentional discrimination”]will depend entirely on the definition of ‘intentional discrimination’within the meaning of Title IX.”fundamental failure to establish a violation of Title IX, letalone an intentional violation,5we need not adopt any test atthis time. This brings us to Plaintiffs’ second contention.2. Plaintiffs’ ProofsIn holding that Plaintiffs’s Title IX claim for compensatorydamages failed for lack of proof of intentional discrimination,the district court held that:It is clear, as a matter of the law of the case, that therewas no intentional discrimination by defendants in thiscase.Horner v. Kentucky High School Ass’n., 43 F.3d265, 276 (6th Cir. 1994).3[FN]3 The Sixth Circuit determined that plaintiffsfailed to offer sufficient evidence on the issue ofintentional discrimination to defeat defendants’16Horner, et al. v. Kentucky HighSch. Athletic Ass’n, et al.No. 97-62646In the first appeal of this case, this Court, relying onPersonnelAdministrator v. Feeney,442U.S. 256 (1979), recognized thatdiscriminatory intent requires a showing that the challenged policy wasadopted “becauseof, not merely in spite of, its adverse impact on personsin the . . . class.”Horner,43 F.3d at 276 (citingFeeney,442U.S. at 279)(emphasis added).Applying this rule, theHorner Ipanel ruled that:Plaintiffs did not allege that defendants adopted or adheredto 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.)6Plaintiffs contend that this ruling is wrongbecause theHorner Ipanel’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 inHorner Iregardingintentional 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 Ipanel’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, bringsNo. 97-6264Horner, et al. v. Kentucky HighSch. Athletic Ass’n, et al.29Chicago,441 U.S. 667, 696 (1979) (“The drafters of Title IXexplicitly assumed that it would be interpreted and applied asTitle VI had been during the preceding eight years.”). TheSupreme Court has observed that the primary purposes ofTitle IX were (1) “to avoid the use of federal resources tosupport discriminatory practices;” and (2) “to provideindividual citizens effective protection against thesepractices.”Gebser v. Lago Vista Indep. Sch. Dist.,118 S.Ct.1989, 1997 (1998);see alsoHaffer v. Temple Univ.,524 F.Supp. 531, 533 (E.D. Pa. 1981) (Title IX was intended toprovide “the essential guarantees of equal opportunity ineducation for men and women”) (quoting 118 Cong. Rec.5808 (1972) (remarks of Sen. Birch Bayh)). There is also nodoubt that Congress fully intended Title IX to mandate genderequity in scholastic athletic programs.See id.at 534-36(recounting legislative history and subsequent defeat ofvarious measures that would have limited Title IX’s impacton athletic programs);see also34 C.F.R. § 106.41(c)(recipients of federal funds must generally provide equality ofathletic opportunity to students of both sexes);Yellow SpringsBd. of Ed. v. Ohio High School Athletic Ass’n,647 F.2d 651,660-61 (6th Cir. 1981) (Jones, J., concurring in part anddissenting in part).Finally, the Supreme Court has recognizedthat Title IX was enacted pursuant to Congress’s spendingpower.See Davis,119 S.Ct. at 1669-70;Franklin,503 U.S.at 74. By agreeing to accept federal funds, Defendantsessentially contracted with the federal government that theywould not discriminate on the basis of gender in athletics.See Gebser,118 S.Ct. at 1997.An implied cause of action exists under Title IX.SeeDavis,119 S.Ct. at 1669;Gebser,118 S.Ct. at 1996;Cannon,441 U.S. at 717. As notedsupra,courts are generally free to“make good on the wrong done” when federal rights havebeen infringed, subject to only two constraints. Courts arelimited in granting relief when (1) Congressional intent is tothe contrary, or (2) the purposes of carrying out the statutewould be frustrated.SeeGebser,118 S.Ct. at 1996. It iswell-accepted that Congress did not intend to limit the28Horner, et al. v. Kentucky HighSch. Athletic Ass’n, et al.No. 97-6264wrongly concluded that Defendants are entitled to summaryjudgment on monetary damages. To the contrary, Plaintiffsmust be afforded an opportunity to meet theDavisstandardbelow.II.The starting point for our analysis should be the seminaldecision ofBell v. Hood,327 U.S. 678 (1946)in which theSupreme Court stated the oft-repeated principle thatwhere 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. § 2000det seq., which banned racial discrimination infederally funded programs.See Cannon v. University ofNo. 97-6264Horner, et al. v. Kentucky HighSch. Athletic Ass’n, et al.177Title IX provides that “[n]o person in the United States shall, on thebasis of sex, be excluded from participation in, be denied the benefits of,or be subjected to discrimination under any education program or activityreceiving Federal financial assistance[.]” 20 U.S.C. § 1681(a).us to Plaintiffs’ contention that our previous decision foundthat they had stated a prima facie case under Title IX. That isnot correct, as an examination of our original decision reveals.Initially,Horner Idiscussed the analysis to be used indetermining whether Defendants had complied with TitleIX’s equal opportunity mandate.7TheHorner Ipanel notedthat the regulations implementing the statute’snondiscriminatory requirements “do not impose anindependent requirement that an institution always sponsorseparate teams for each sport it sanctions.”Id.at 273 (citing34 C.F.R. § 106.41(b)). The panel also noted that “theregulations do require that institutions provide gender-blindequality of athletic opportunity to its students.”Id.(citing 34C.F.R. § 106.41(c)). This requires an evaluation of severalfactors, including “‘[w]hether the selection of sports andlevels of competition effectively accommodate the interestsand abilities of members of both sexes[.]’”Id.(quoting 34C.F.R. § 106.41(c)(1)).In making this assessment, theHorner Ipanel deferred tothe Department of Health, Education, and Welfare’s PolicyInterpretation of 1979.See id.To satisfy the effectiveaccommodation requirement of 34 C.F.R. § 106.41(c)(1), “aninstitution must effectively accommodate the interests of bothsexes in both the selection of the sports and the levels ofcompetition,to the extent necessary to provide equal athleticopportunity.”Id.(citing Policy Interpretation, SectionVII.C.1., 44 Fed. Reg. at 71,417) (emphasis added).Regarding the interests of the students,Horner Inoted that“the Policy Interpretation instructs that the methods chosen bythe institution must be nondiscriminatory and must notdisadvantage members of an underrepresented sex.”Id.18Horner, et al. v. Kentucky HighSch. Athletic Ass’n, et al.No. 97-6264(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 interestsof 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 17percent 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, theHorner Ipanel notedthat 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, theHorner Ipanel held that therewas 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, moreNo. 97-6264Horner, et al. v. Kentucky HighSch. Athletic Ass’n, et al.27standing with the college’s admissions department bydesignating the applicant as a “recruit.” Plaintiffs theorizedthat college softball coaches were reluctant to allocatevaluable scholarship monies, or otherwise devote recruitingefforts to Kentucky high school softball prospects, becauseKentucky’s softball players were untested and unproven in thefast-pitch game. Kentucky’s high school baseball players, ofcourse, faced no such impediments.Recently, a district court observed in a similar case that“[f]or too long, the girls’ softball team has been deniedathletic opportunity equal to the boys' baseball team.”Daniels v. School Bd. of Brevard Co., Fla.,985 F. Supp.1458, 1462 (M.D. Fla. 1997). The primary issue in thisappeal is whether the district court correctly concluded thatPlaintiffs produced no evidence of “intentionaldiscrimination” as a predicate for an award of compensatorydamages. An answer to this question will depend entirely onthe definition of “intentional discrimination” under Title IX.Plaintiffs urge us to apply a “knowledge” or a “deliberateindifference” standard for “intentional” violations of Title IX.Plaintiffs contend that so long as Defendants were aware ofthe discriminatory effect of their failure to sanction fast-pitchsoftball, but nevertheless failed to modify their bylaws tocomply with Title IX’s mandates, then they “intentionally”violated Title IX. Defendants counter that “intentionaldiscrimination” under Title IX requires a finding of“discriminatory animus” against Plaintiffs’ gender.The majority suggests in dicta that Defendants are likelycorrect in their choice of standard, but holds that Plaintiffslose as a matter of law in either case. I disagree with bothconclusions. First, the Supreme Court has determined that a“deliberate indifference” standard governs whether Title IXis intentionally violated.See Davis v. Monroe Co. Bd. of Ed.,119 S.Ct. 1661, 1675 (1999). Further, because the magistratecourt clearly misread the holding ofHorner I, and because Ibelieve the majority essentially rewrites that decision throughits reasoning in this case, the majority has, in my judgment,26Horner, et al. v. Kentucky HighSch. Athletic Ass’n, et al.No. 97-6264__________________DISSENT__________________NATHANIEL R. JONES, Circuit Judge, dissenting. Themajority finds it unnecessary to remand this case despite themagistrate court’s clear error in applying this Court’s holdinginHorner 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 inHorner I. Accordingly, I respectfullydissent.I.We have already delineated the contours of this lawsuit ina 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 seemsa given that many college coaches can improve an applicant’sNo. 97-6264Horner, et al. v. Kentucky HighSch. Athletic Ass’n, et al.19limited than those for boys. With respect to subsection(2),the level of interest of all high school girls in fastpitch softball is unknown. With respect to subsection (3),the record reflects only that girls are not prohibited fromplaying on the boys’ baseball teams.Therecord does notdisclose whether and to what extent girls actually play.Id.at 274 (emphasis added). Thus, contrary to Plaintiffs’assertions on appeal, this court did not hold inHorner IthatPlaintiffs had met their initial burden.The panel also set forth the factors in the PolicyInterpretation to assess an institution’s effectiveaccommodation of the students’ interest in the selection of thelevels of competition:(1) Whether the intercollegiate level participationopportunities for males and female students are providedin numbers substantially proportionate to their respectiveenrollments; or(2) Where the numbers of one sex have been and areunderrepresented among intercollegiate athletes, whetherthe institution can show a history and continuing practiceof program expansion which is demonstrably responsiveto the developing interest and abilities of the members ofthat sex;(3) Where the members of one sex are underrepresentedamong intercollegiate athletes, and the institution cannotshow a continuing practice of program expansion such asthat cited above, whether it can be demonstrated that theinterests and abilities of the members of that sex havebeen fully and effectively accommodated by the presentprogram.Id.(quoting Policy Interpretation, Section VII.C.5.a, 44 Fed.Reg. at 71,418).Regarding these factors, the original panel noted that:20Horner, et al. v. Kentucky HighSch. Athletic Ass’n, et al.No. 97-6264The 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 (quotingCohen, 991 F.2d at 898).FN8.Although the record is silent on this point, thecourt 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 aboundin 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, theHorner Ipanel did not hold that Plaintiffs hadmet 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 theirNo. 97-6264Horner, et al. v. Kentucky HighSch. Athletic Ass’n, et al.25and it is not properly before this Court.See USA PetroleumCo. v. Atlantic Richfield.13 F.3d 1276, 1284 (9th Cir. 1994).In short, Plaintiffs have not shown that they are prevailingparties because they did not obtain an enforceable judgment,an injunction, a declaratory judgment, or a consent decreealtering the legal relationship between them and Defendants.Further, based on the record, Plaintiffs have not demonstratedthat their lawsuit was an important and necessary factor inchanging the law.III. CONCLUSIONAccordingly, the judgment of the district court isAFFIRMED.24Horner, et al. v. Kentucky HighSch. Athletic Ass’n, et al.No. 97-6264the 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 partymust 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 andpractices 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 lawsuitwas theprimary “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 anecessary 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 recordNo. 97-6264Horner, et al. v. Kentucky HighSch. Athletic Ass’n, et al.21statements at oral argument. Plaintiffs offered no proof onremand that their interests were not being met, despite thepolicy allowing them to play on boys’ fast-pitch softballteams. As the dissent inHorner Iobserved: “Title IX, whenread with the implementing regulation and the policyinterpretation, places the burden of proving statisticaldisparity and unmet interest squarely on the shoulders of theplaintiffs.”Id.at 277 (Batchelder, J., dissenting) (citingRoberts v. Colorado State Bd. of Agric., 998 F.2d 824, 829n.5 (10th Cir. 1993);Cohen v. Brown Univ., 991 F.2d 888,901-01 (1st Cir. 1993)).In sum, theHorner Ipanel did not hold that Plaintiffs madeout a prima facie case of a Title IX violation, but merely heldthat Plaintiffs had established the first requirement of theirprima facie case. Notably, theHorner Ipanel specificallyadvised Plaintiffs of the proof necessary to prevail on theirTitle IX claim, and granted a remand for further developmentof the record. Notwithstanding, upon renewed motions forsummary judgment by Defendants, other than proof ofstatistical disparity, Plaintiffs still failed to offer anyadditional evidence that Title IX’s equal opportunity mandatehad been violated, let alone intentionally violated. Absent apredicate violation, it is axiomatic that there can be nointentional violation of Title IX. Thus, in the language of thedissent, there can be no “actual notice” and “deliberateindifference” to Plaintiffs’ unmet interest. We thereforeaffirm the district court’s grant of summary judgment,although on slightly different grounds.Nevertheless, even if we assumed that Plaintiffs hadestablished their prima facie case, we would still hold thatthey failed to establish an intentional violation. Certainly, onthis record, there is no evidence of discriminatory animus.See Bray v. Alexandria Women’s Health Clinic, 506 U.S. 263,269-70 (1993) (defining discriminatory animus towardswomen in an action under 42 U.S.C. § 1885(3) as having “apurpose that focuses upon women by reason of their sex . . .directed specifically at a women as a class”);Feeney, 44222Horner, et al. v. Kentucky HighSch. Athletic Ass’n, et al.No. 97-62648As we noted in the equal protection context inHorner 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 (quotingVillage of Arlington HeightsMetropolitan 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.8Nor is there anyproof 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 asrequiring perfect parity. However, as just discussed, all thestatute and implementing regulations require is equality ofathletic opportunity. The statute itself does not require genderbalance.See20 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 sexNo. 97-6264Horner, et al. v. Kentucky HighSch. Athletic Ass’n, et al.23on account of an imbalance which may exist with respect tothe totalnumber or percentage of persons of that sexparticipating in or receiving the benefits of federallysupported program or activity, in comparison with the totalnumber or percentage of persons of that sex in anycommunity, State, section, or other area”);Roberts, 998 F.2dat 829 n.5. Further, in certain instances, separate teams formales and females are allowed.See34 C.F.R. § 106.41(b)(1998) (permitting separate sports teams for males andfemales where selection for the team is based on competitiveskill or is a contact sport). As we pointed out inHorner I, theregulations themselves do not impose an independentrequirement that an institution always sponsor separate teamsfor all sanctioned sports.See Horner I, 43 F.3d at 273 (citing34 C.F.R. § 106.41(b)). Thus, it would be impossible forDefendants to be on notice that they were in violation of TitleIX simply because they sponsored only boys’ fast-pitchsoftball. Finally, it is undisputed that Defendants permitfemale athletes to try out for traditional male sports, includingcontact sports. Absent any evidence that this opportunity didnot adequately meet girls’ needs and abilities, there can be nofinding that Defendants knowingly violated Plaintiffs’ TitleIX rights.3. Gender ClassificationFor the first time on appeal, Plaintiffs argue that Defendantsviolated Title IX because the KHSAA classifies its sports bygender. For the reasons stated, classification by gender is nota per se violation of Title IX. In any event, the claim isforfeited.B. Attorneys' FeesPlaintiffs also claim that they are prevailing parties forpurposes of awarding attorneys’ fees. This Court reviews thefactual determination that a party is a prevailing party forclear error.See Payne v. Board of Educ., Cleveland CitySchools,88 F.3d 392, 397 (6th Cir. 1996). This Court reviews