FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

AREZOU MANSOURIAN; LAUREN 

MANCUSO; CHRISTINE WING-SI NG,

Plaintiffs-Appellants,

No. 08-16330 v.

D.C. No. REGENTS OF THE UNIVERSITY OF  2:03-cv-02591-FCD- CALIFORNIA, UNIVERSITY OF

EFB CALIFORNIA AT DAVIS; LAWRENCE

VANDERHOEF; GREG WARZECKA; OPINION

PAM GILL-FISHER; LAWRENCE

SWANSON,

Defendants-Appellees. 

Appeal from the United States District Court

for the Eastern District of California

Frank C. Damrell, District Judge, Presiding

Argued and Submitted

October 8, 2009—San Francisco, California

Filed February 8, 2010

Before: Mary M. Schroeder and Marsha S. Berzon,

Circuit Judges, and Milton I. Shadur,* District Judge.

Opinion by Judge Berzon

*The Honorable Milton I. Shadur, Senior United States District Judge

for the Northern District of Illinois, sitting by designation. 

2209
COUNSEL

Noreen Farrell (argued), Debra Smith, James C. Sturdevant,

Monique Olivier, San Francisco, California; Kristen Galles,

Alexandria, Virginia, for plaintiffs-appellants Arezou Mansourian, Lauren Mancuso, and Christine Wing-Si Ng.

Nancy J. Sheehan, Sacramento, California, for defendantsappellees Regents of the University of California et al.

OPINION

BERZON, Circuit Judge:

The statute known as Title IX, 20 U.S.C. § 1681, is widely

recognized as the source of a vast expansion of athletic opporMANSOURIAN v. REGENTS OF UNIVERSITY OF CALIFORNIA 2213
tunities for women in the nation’s schools and universities, so

much so that a company that sells women’s athletic apparel

now mimics its name. See www.titlenine.com. Despite that

renown, the district court in this case held that a university

that receives federal funds cannot be held liable in damages

for failing effectively to accommodate the athletic interests of

both men and women unless the aggrieved women first provide the appropriate university officials with notice of their

disadvantageous treatment and an opportunity to cure it.

We disagree and so, with respect to the central issue in this

case, reverse the district court’s grant of summary judgment

on that ground. We hold as well that the defendant university

is not entitled to summary judgment on the alternative ground

that it has complied with Title IX. We also reverse the order

dismissing the plaintiffs’ equal protection claim and remand

for further proceedings consistent with this opinion.

FACTUAL AND PROCEDURAL BACKGROUND

Arezou Mansourian, Lauren Mancuso, and Christine WingSi Ng (hereafter plaintiffs or students) are women who wrestled in high school and chose to attend the University of California, Davis (UCD) so they could participate in the

university’s acclaimed wrestling program, which had long

provided opportunities for women.1 The plaintiffs participated

in varsity wrestling and enjoyed the benefits associated with

varsity status: training, coaching, and laundry services; academic tutoring; insurance; and access to varsity facilities and

equipment.2 UCD did not operate separate wrestling teams for

1Nancy Chiang, an additional plaintiff named in the complaint, was on

a leave of absence from UCD when the complaint was filed. She dismissed her claims in June 2007. Mansourian, Ng, and Mancuso graduated

from UCD during the course of the litigation. 

2UCD disputes the very existence of a women’s varsity wrestling program, insisting that the plaintiffs were merely “permitted to practice with

the wrestling team.” UCD acknowledges, however, that the plaintiffs “par2214 MANSOURIAN v. REGENTS OF UNIVERSITY OF CALIFORNIA
men and women; a handful of women wrestlers participated

in what was largely a men’s team, practicing with the men

and receiving coaching from Coach Mike Burch. 

During the 2000-2001 academic year, UCD eliminated all

women from the wrestling team. After the students protested

to UCD administrators and filed a complaint with the Office

for Civil Rights (OCR),3 UCD agreed to permit women again

to participate in varsity wrestling. Their participation, however, was conditioned on their ability to beat male wrestlers

in their weight class, using men’s collegiate wrestling rules.

(Prior to their elimination from the team, women wrestlers at

UCD had competed only against other women and used international freestyle rules.) As a result of the new requirement

that they compete against men under men’s rules, the female

students were unable to participate on the wrestling team and

lost the benefits associated with varsity status, including

scholarships and academic credit. 

The students then filed a class action against UCD and several UCD officials in their individual and official capacities,

on behalf of all current and future female UCD students

denied equal athletic participation opportunities. The plaintiffs sought damages and injunctive relief under Title IX and

also asserted equal protection claims under 42 U.S.C. § 1983.4

ticipated in wrestling” and that Mansourian, at least, was “on the wrestling

team roster” and received varsity-associated benefits. Moreover, UCD

listed four female varsity wrestlers in its 1999-2000 athletics report pursuant to the Equity in Athletics Disclosure Act, 20 U.S.C. § 1092(g). Viewing the facts in favor of the plaintiffs on UCD’s motion for summary

judgment, we conclude that the plaintiffs were varsity wrestlers for purposes of Title IX. 

3OCR is the division of the United States Department of Education

charged with enforcing Title IX. 

4The Title IX claims are asserted only against the university. The individual defendants are Larry Vanderhoef, University Chancellor; Greg

Warzecka, Athletic Director; Pam Gill-Fisher and Lawrence Swanson,

Associate Athletic Directors; and Robert Franks, Associate Vice Chancellor for Student Affairs. We refer to the individual defendants and the University collectively as “UCD.” 

MANSOURIAN v. REGENTS OF UNIVERSITY OF CALIFORNIA 2215
Just before the scheduled hearing on class certification, the

plaintiffs requested a stay due to their attorney’s serious illness. During the ten-month stay, Mancuso, the only named

plaintiff still attending UCD at that point, graduated. As soon

as the stay ended, the plaintiffs moved to add as plaintiffs

three students, Kelsey Brust, Laura Ludwig, and Jessica

Bulala, all still enrolled at UCD. The district court refused to

allow the amendment, holding that the plaintiffs failed to meet

the good cause required under Federal Rule of Civil Procedure 16 when such a motion is filed after the issuance of a

scheduling order. See Johnson v. Mammoth Recreations, Inc.,

975 F.2d 604, 607-08 (9th Cir. 1992). Without any named

plaintiffs currently attending UCD, the plaintiffs stipulated to

dismissal of the class claims for injunctive relief. 

The district court subsequently dismissed the § 1983 claim

as “subsumed” by the Title IX claim, citing Middlesex County

Sewer Authority v. National Sea Clammers Ass’n., 453 U.S.

1 (1981). The district court then granted UCD’s motion for

summary judgment, holding that the students were required,

to perfect their claim, to give UCD notice in advance of filing

suit of the alleged Title IX violation and an opportunity to

cure it, and had failed to do so. The students timely appealed.

ANALYSIS

We review de novo the district court’s dismissal on the

pleadings pursuant to Rule 12(c), Dunlap v. Credit Protection

Ass’n, L.P., 419 F.3d 1011, 1012 n.1 (9th Cir. 2005), as well

as the grant of summary judgment. Avista Corp. Inc. v. Wolfe,

549 F.3d 1239, 1246 (9th Cir. 2008). We review the denial of

a motion to amend under Rule 16(b) for abuse of discretion.

Noyes v. Kelly Servs., 488 F.3d 1163, 1174 n.6 (9th Cir.

2006). 

Before proceeding to discuss the merits of this case, we

consider whether we have jurisdiction to decide the plaintiffs’

challenge to the district court’s denial of their motion to add

2216 MANSOURIAN v. REGENTS OF UNIVERSITY OF CALIFORNIA
Brust, Bulala, and Ludwig as plaintiffs. We hold that this

issue is moot and so beyond our jurisdiction, for the reasons

we now explain. 

[1] After the district court denied the motion, Brust,

Bulala, and Ludwig initiated a separate lawsuit against UCD.

The district court certified a class of “[a]ll present, prospective, and future women students at [UCD] who seek to participate in and/or who are deterred from participating in

intercollegiate athletics at [UCD].” Stipulated Judgment and

Order at 1, Brust v. Regents of the Univ. of Cal., No. 07-1488

(E.D. Cal. Oct. 19, 2009). The parties to the Brust action

reached a settlement, approved by the district court, which

“resolves all class member claims for injunctive relief.” Id. at

10. Moreover, Brust, Ludwig, and Bulala have now graduated

from UCD. It is therefore apparent that, even if the district

court had erred in denying the motion to add Brust, Ludwig,

and Bulala initially, which we do not decide, they would no

longer be appropriate plaintiffs in this litigation for the purposes of injunctive relief, as the current plaintiffs recognize.

See Flint v. Dennison, 488 F.3d 816, 824 (9th Cir. 2007)

(“Generally, once a student graduates, he no longer has a live

case or controversy justifying declaratory and injunctive relief

against a school’s action or policy, and his case is therefore

moot.”); Cole v. Oroville Union High Sch., 228 F.3d 1092,

1099 (9th Cir. 2000) (holding, where the two original plaintiffs had graduated and a third, later-joined plaintiff subsequently graduated before the appeal, that all three lacked

standing to seek injunctive relief).

The plaintiffs contend, however, that the Brust settlement

does not preclude current female students from seeking the

specific injunctive relief — not awarded as part of the Brust

settlement — of restoring the women’s wrestling program.

That may be so; we need not decide whether it is or not. There

are no current students in this case seeking that relief; no

identified, current students looking to intervene in this case to

seek that relief; and no identified, current students whom the

MANSOURIAN v. REGENTS OF UNIVERSITY OF CALIFORNIA 2217
plaintiffs seek to add to the case for purposes of obtaining that

relief. 

[2] We therefore may not reach the merits of the claim that

the district court improperly denied the motion to add new

plaintiffs, as there is presently no cognizable dispute that

would be affected by such a determination.5See, e.g., McQuillion v. Schwarzenegger, 369 F.3d 1091, 1095 (9th Cir. 2004)

(holding that a prisoner’s successful habeas petition and subsequent relief rendered moot his claim for injunctive and

declaratory relief under § 1983); Porter v. Jones, 319 F.3d

483, 489 (9th Cir. 2003) (noting that a case or issue becomes

moot when “the parties lack a legally cognizable interest in

the outcome” (quotation omitted)); Di Giorgio v. Lee (In re

Di Giorgio), 134 F.3d 971, 974 (9th Cir. 1998) (holding that

tenants’ challenge to a state statute permitting their eviction

was moot after they voluntarily vacated the property).

[3] Turning to the merits of the students’ damages claims,

we begin by setting out the statutory and regulatory framework governing Title IX athletics cases. Title IX provides that

[n]o person in the United States shall, on the basis of

sex, be excluded from participation in, be denied the

5The parties did not inform this court before oral argument that (1) the

putative additional plaintiffs had also all graduated and (2) those plaintiffs

had settled their separate lawsuit for class injunctive relief and were awaiting approval of that settlement by the district court. We as judges take our

responsibilities seriously, preparing carefully before argument on all

issues presented in the briefs. Where, as here, the complexion of the case

has entirely changed while the appeal is pending, counsel for both parties

have an obligation to so inform the court. That is so even if a party

believes it has a basis for arguing that the issue should still be decided. 

No such notice of changed circumstances was given here. Instead, the

panel learned only at argument that Brust, Ludwig, and Bulala had graduated, and learned only after independent post-argument research that there

was a motion pending, to be heard in a matter of days, for approval of a

settlement for broad-ranging injunctive relief in the Brust litigation. 

2218 MANSOURIAN v. REGENTS OF UNIVERSITY OF CALIFORNIA
benefits of, or be subjected to discrimination under

any education program or activity receiving Federal

financial assistance.

20 U.S.C. § 1681(a). As applied to intercollegiate athletics,

the Department of Education’s Title IX regulations interpret

the statute as requiring funding recipients to “provide equal

athletic opportunity for members of both sexes.” 34 C.F.R.

§ 106.41(c).6

[4] The regulations establish two components of Title IX’s

equal athletic opportunity requirement: “effective accommodation” and “equal treatment.” “Effective accommodation”

Title IX requirements derive from the Title IX regulation at

34 C.F.R. § 106.41(c)(1), which bases Title IX compliance in

part on whether “the selection of sports and levels of competition effectively accommodate the interests and abilities of

members of both sexes.”

7

 The “equal treatment” Title IX standard, in contrast, derives from 34 C.F.R. § 106.41(c)(2)-(10),

which has been interpreted by OCR to require “equivalence

in the availability, quality and kinds of other athletic benefits

and opportunities provided male and female athletes.”

8

6The existence of a private right of action to enforce Title IX is wellestablished and not at issue in this case. See Cannon v. Univ. of Chicago,

441 U.S. 677 (1979). 

7

“Effective accommodation” as a doctrine within Title IX jurisprudence

is analytically distinct from similarly titled doctrines under other statutes

— for example, the obligation to “mak[e] reasonable accommodations to

the known physical or mental limitations of an otherwise qualified individual with a disability” under the Americans with Disabilities Act, 42 U.S.C.

§ 12112(b)(5). 

8The regulation requires OCR to consider, in assessing whether equal

opportunities are available to students of both sexes: 

The provision of equipment and supplies; [s]cheduling of games

and practice time; [t]ravel and per diem allowance; [o]pportunity

to receive coaching and academic tutoring; [a]ssignment and

compensation of coaches and tutors; [p]rovision of locker rooms,

practice and competitive facilities; [p]rovision of medical and

training facilities and services; [p]rovision of housing and dining

facilities and services; [p]ublicity. 

34 C.F.R. § 106.41(c). 

MANSOURIAN v. REGENTS OF UNIVERSITY OF CALIFORNIA 2219
Department of Education Office for Civil Rights, Clarification

of Intercollegiate Athletics Policy Guidance: The Three-Part

Test (Clarification) (1996), available at http://www.ed.gov/

about/offices/list/ocr/docs/clarific.html. Effective accommodation claims thus concern the opportunity to participate in

athletics, while equal treatment claims allege sex-based differences in the schedules, equipment, coaching, and other factors

affecting participants in athletics. See McCormick v. Sch. Dist.

of Mamaroneck, 370 F.3d 275, 299 (2d Cir. 2004) (holding

that a competition schedule permitting male but not female

high school soccer players to participate in state and regional

championships deprived female players of equal treatment

under Title IX); see also Pederson v. La. State Univ., 213

F.3d 858, 865 n.4 (5th Cir. 2000) (explaining the relationship

between effective accommodation and equal treatment

claims); Boucher v. Syracuse Univ., 164 F.3d 113, 115 n.1 (2d

Cir. 1999) (same). So “an institution may violate Title IX

solely by failing to accommodate effectively the interests and

abilities of student athletes of both sexes,” even if the benefits

provided athletes of both sexes are equivalent. Kelley v. Bd.

of Trs., 35 F.3d 265, 268 (7th Cir. 1994); see also Roberts v.

Colo. State Bd. of Agric., 998 F.2d 824, 828 (10th Cir. 1993);

Cohen v. Brown Univ., 991 F.2d 888, 897 (1st Cir. 1993). 

Whether a funding recipient has met its “effective accommodation” obligation is determined using a “three-part test”

drawn from OCR’s 1979 Policy Interpretation, 44 Fed. Reg.

71,413 (Dec. 11, 1979), and further elaborated in OCR’s 1996

Clarification.9 Congress has specifically authorized OCR to

promulgate regulations governing intercollegiate athletics,10

9We and other circuits have held that both the Policy Interpretation and

the Clarification are entitled to deference under Chevron U.S.A. v. Natural

Res. Def. Council, 467 U.S. 837, 843-44 (1984), and Martin v. Occupational Safety & Health Review Comm’n, 499 U.S. 144, 150 (1991). See

Neal v. Bd. of Trs., 198 F.3d 763, 770, 771 (9th Cir. 1999); accord

Chalenor v. Univ. of N.D., 291 F.3d 1042, 1047 (8th Cir. 2002); Kelley,

35 F.3d at 270-71; Cohen, 991 F.2d at 896-97. 

10“Intercollegiate” refers to varsity and junior varsity teams, as opposed

to club or intramural teams, which do not receive coaching or athletic

scholarships and other benefits listed in the regulations. See supra note 8.

2220 MANSOURIAN v. REGENTS OF UNIVERSITY OF CALIFORNIA
see Pub. L. No. 93-380, § 844, 88 Stat. 612 (1974), and the

resulting three-part test gives universities three options for

demonstrating compliance with Title IX: (1) showing substantial proportionality (the number of women in intercollegiate

athletics is proportionate to their enrollment); (2) proving that

the institution has a “history and continuing practice of program expansion” for the underrepresented sex (in this case,

women); or (3) where the university cannot satisfy either of

the first two options, establishing that it nonetheless “fully

and effectively accommodate[s]” the interests of women. 44

Fed. Reg. 71,418.

[5] Funding recipients can satisfy any of the three options

to comply with Title IX. UCD claims to have satisfied the

second option by showing a history and continuing practice of

program expansion.11 Compliance with this option “focuses

on whether an institution has expanded the number of intercollegiate participation opportunities” for women, but provides institutions “flexibility in choosing which teams [they]

add[ ].” Clarification nn. 2-3. The number of “participation

opportunities” for women is defined by the number of female

athletes actually playing intercollegiate sports.

The district court determined that the plaintiffs had adequately pleaded a claim for effective accommodation under

Title IX by alleging that UCD “chooses to make fewer athletic participation opportunities [available] to female students

than to male students.” The district court did not, however,

reach the merits of whether UCD complied with Option Two,

instead concluding that “money damages cannot be awarded

unless a plaintiff has given notice of and an opportunity to

rectify the specific violation alleged by a Title IX plaintiff.”

Finding that the plaintiffs had failed to provide such notice,

the district court granted summary judgment to UCD. 

11The record does not demonstrate that UCD has complied with either

Option One or Option Three, and UCD does not contend that it has. 

MANSOURIAN v. REGENTS OF UNIVERSITY OF CALIFORNIA 2221
This circuit has yet to address whether any such requirement applies in the athletics context. We conclude that it does

not. 

[6] UCD’s notice argument, adopted by the district court,

proceeds by analogy to the Supreme Court’s holding that

notice and an opportunity to cure a violation is an essential

precursor to a sexual harassment suit for damages under Title

IX. We therefore begin by discussing the pertinent Title IX

sexual harassment cases. As will appear, the analogy between

this case and those is not apt.

The starting point for this inquiry is Franklin v. Gwinnett

County Public Schools, 503 U.S. 60 (1992), in which the

defendant school district was aware of a teacher’s sexual

harassment of a student but took no action to stop it. The

Court recognized that Pennhurst State School and Hospital v.

Halderman, 451 U.S. 1, 28-29 (1981), precludes the award of

damages for unintentional violations of statutes, like Title IX,

enacted pursuant to Congress’s spending authority. See

Franklin, 503 U.S. at 74. Franklin held, however, that the

failure to halt harassment of which a school district is aware

constitutes intentional discrimination for which monetary

damages are an appropriate remedy. Id. at 75-76. 

Gebser v. Lago Vista Independent School District, 524 U.S.

274 (1998), further defined the scope of a school’s monetary

liability under Title IX for inaction in the face of serious sexual harassment. In Gebser, the Court held that principles of

respondeat superior and constructive notice are inadequate to

impose Title IX liability on a school district for a teacher’s

sexual abuse of a high school student. Id. at 285. Noting that

Title IX’s express enforcement scheme, termination of federal

funding, requires “an opportunity for voluntary compliance”

before suspending or terminating funding, see 20 U.S.C.

§ 1682, Gebser held that the judicially implied private right of

action similarly should not impose liability “without regard to

the recipient’s knowledge or its corrective actions upon

2222 MANSOURIAN v. REGENTS OF UNIVERSITY OF CALIFORNIA
receiving notice.” Id. at 289. Monetary damages premised on

constructive notice or respondeat superior for sexual harassment, the Court held in Gebser, would entail a risk that “the

recipient of funds was unaware of the discrimination.” Id. at

287. Rather, 

in cases like this one that do not involve official policy of the recipient entity, . . . a damages remedy will

not lie under Title IX unless an official who . . . has

authority to address the alleged discrimination and to

institute corrective measures . . . has actual knowledge of discrimination . . . and fails adequately to

respond.

Id. at 290 (emphasis added). 

[7] Critically for present purposes, Gebser does not make

pre-litigation notice of an alleged violation a prerequisite to

recovery in every Title IX case, or even in every sexual

harassment case. Proof of actual notice is required only when

the alleged Title IX violation consists of an institution’s deliberate indifference to acts that “do not involve official policy

of the recipient entity.” Id. In sexual harassment cases, it is

the deliberate failure to curtail known harassment, rather than

the harassment itself, that constitutes the intentional Title IX

violation.12 See Davis v. Monroe County Bd. of Educ., 526

U.S. 629, 641 (1999) (holding that Gebser permits the plaintiff “to hold the Board liable for its own decision to remain

idle in the face of known student-on-student harassment in its

schools.”). The Tenth Circuit has held that a corollary of this

principle is that where the official policy is one of deliberate

indifference to a known overall risk of sexual harassment,

notice of a particular harassment situation and an opportunity

12The harassment itself may be actionable under state law or 42 U.S.C.

§ 1983. Gebser, 524 U.S. at 292. 

MANSOURIAN v. REGENTS OF UNIVERSITY OF CALIFORNIA 2223
to cure it are not predicates for liability. See Simpson v. Univ.

of Colo. Boulder, 500 F.3d 1170 (10th Cir. 2007).

13

[8] Consistent with the reasoning underlying Gebser, the

Supreme Court has made clear that no notice requirement is

applicable to Title IX claims that rest on an affirmative institutional decision. Jackson v. Birmingham Board of Education,

544 U.S. 167 (2005), held that a high school athletics coach

fired in retaliation for complaining about discrimination in

athletics funding had a private right of action under Title IX.

The Court held that no pre-litigation notice is required in the

retaliation context. In Gebser and Davis, the Court stated, “we

emphasized that [the notice] limitation on private damages

actions is not a bar to liability where a funding recipient intentionally violates the statute.” Id. at 182 (quotation omitted).

As retaliation is “easily attributable to the funding recipient

and it is always — by definition — intentional,” id., the Court

allowed Jackson’s retaliation claim to proceed without regard

to whether adequate pre-litigation notice and opportunity to

cure the violation had been provided.

[9] Universities’ decisions with respect to athletics are

even more “easily attributable to the funding recipient and . . .

always — by definition — intentional,” id. at 183, than the

retaliation in Jackson. Institutions, not individual actors,

13 Simpson concerned two female University of Colorado (CU) students

sexually assaulted by football players and high school football recruits.

The Tenth Circuit held that Gebser’s notice standard did not apply. The

record supported the finding that the head football coach was aware of

“the serious risk of sexual . . . assault during college-football recruiting

efforts [and] that such assaults had indeed occurred during CU recruiting

visits,” Simpson, 500 F.3d at 1184, and that, although the Boulder District

Attorney’s office had recommended a policy to curb such assaults after a

previous incident involving recruits, the policy was not followed and CU

continued to sponsor an “unsupervised player-host program to show highschool recruits ‘a good time.’ ” Id. The court held this sequence of events

satisfied the “official policy” element of Gebser and that a woman

assaulted thereafter need provide no separate notice and opportunity to

cure before filing suit. 

2224 MANSOURIAN v. REGENTS OF UNIVERSITY OF CALIFORNIA
decide how to allocate resources between male and female

athletic teams. Decisions to create or eliminate teams or to

add or decrease roster slots for male or female athletes are

official decisions, not practices by individual students or staff.

Athletic programs that fail effectively to accommodate students of both sexes thus represent “official policy of the recipient entity” and so are not covered by Gebser’s notice

requirement. Gebser, 524 U.S. at 290.

Moreover, a judicially imposed notice requirement would

be superfluous in light of universities’ ongoing obligations to

certify compliance with Title IX’s athletics requirements and

to track athletics gender equity data. OCR regulations require

funding recipients to evaluate their policies and certify, as a

condition for receiving funds, that they are “tak[ing] whatever

remedial action is necessary . . to eliminate . . . discrimination.” 34 C.F.R. § 106.4; see also id. § 106.3. UCD and other

funding recipients therefore have an affirmative obligation to

ensure compliance with at least one prong of the three-part

effective accommodation test. 

The Equity in Athletics Disclosure Act (EADA) further

requires federally funded universities to report to the Department of Education and make available to students the number

of undergraduates and athletes, broken down by sex, as well

as sex-segregated data on operating expenses, coach salaries,

athletic scholarships, recruiting expenditures, and revenues.

20 U.S.C. § 1092(g). UCD’s EADA reports contain ample

data demonstrating that it could not satisfy the substantial proportionality option and that the trend of increasing female athletic participation reversed after 2001, indicating that UCD

may not have had a continuing practice of program expansion.

Thus, where the alleged harm is unequal provision of athletic

opportunity, the notice requirement would not supply universities with information of which they are legitimately

unaware. See Gebser, 524 U.S. at 289. 

[10] We conclude for these reasons that pre-litigation

notice and opportunity to cure is not necessary in cases allegMANSOURIAN v. REGENTS OF UNIVERSITY OF CALIFORNIA 2225
ing unequal provision of athletic opportunities in violation of

Title IX. Applying the notice requirement to institutional

decisions would contravene the clear language of Gebser and

its progeny. It would also be inconsistent with funding recipients’ affirmative obligations to provide nondiscriminatory

athletic participation opportunities and continually to assess

and certify compliance with Title IX. 

The Fifth Circuit has reached the same conclusion we do,

holding that

the requirement in the sexual harassment cases —

that the academic institution have actual knowledge

of the sexual harassment — is not applicable for purposes of determining whether an academic institution intentionally discriminated on the basis of sex

by denying females equal athletic opportunity. . . . In

the instant case, it is the institution itself that is discriminating.

Pederson, 213 F.3d at 882. The Eighth Circuit, the only other

circuit to address the issue, has assumed, without any analysis, that Gebser’s notice requirement applies equally to Title

IX cases where plaintiffs allege discrimination in the administration of an athletic program. Grandson v. Univ. of Minn,,

272 F.3d 568, 575 (8th Cir. 2001). But the plaintiffs in

Grandson did not argue otherwise, id., and the Eighth Circuit

reached the merits of a later Title IX athletics case without

mentioning Grandson, Gebser, or the notice requirement. See

Chalenor, 291 F.3d 1042. It is therefore far from clear that

Grandson is controlling even in the Eighth Circuit. If it is,

then the circuits are already split on the issue, and we find the

Fifth Circuit’s holding (and that of the Tenth Circuit in Simpson, on a different but related issue) the more persuasive, for

reasons already surveyed. 

[11] We therefore join the Fifth Circuit in holding that

Gebser’s notice requirement is inapplicable to cases alleging

2226 MANSOURIAN v. REGENTS OF UNIVERSITY OF CALIFORNIA
that a funding recipient has failed effectively to accommodate

women’s interest in athletics. The district court’s decision

granting summary judgment on that basis is reversed.

UCD also moved for summary judgment on the grounds

that the record demonstrated “a history and continuing practice of program expansion” for women that satisfied Option

Two of the three-part test. Although the district court granted

summary judgment on the notice grounds discussed above,

UCD contends that we could, alternatively, affirm the district

court’s decision on the merits. See Atel Fin. Corp. v. Quaker

Coal Co., 321 F.3d 924, 926 (9th Cir. 2003). That is so, but

only if, viewing the evidence in the light most favorable to the

students, there are no genuine issues of material fact concerning UCD’s compliance with Option Two. See, e.g., Becerril

v. Pima County Assessor’s Office, 587 F.3d 1162, 1163 (9th

Cir. 2009). On the record before us we cannot affirm on this

alternative ground.

[12] In assessing compliance with Option Two, we must,

under the Clarification, focus on both the institution’s record

of adding female participation opportunities and its current

“plan of program expansion that is demonstrably responsive

to the developing interests and abilities” of women. “History”

and “continuing practice” thus constitute two separate inquiries. We conclude that the undisputed facts fall short of demonstrating UCD’s compliance with either facet of Option

Two.

[13] The Clarification specifies the following factors as

evidence of an institution’s history of program expansion:

[A]n institution’s record of adding intercollegiate

teams, or upgrading teams to intercollegiate status,

for [women]; an institution’s record of increasing the

number of participants in intercollegiate athletics

who are [women]; and an institution’s affirmative

MANSOURIAN v. REGENTS OF UNIVERSITY OF CALIFORNIA 2227
responses to requests by students or others for addition or elevation of sports. 

The Option Two analysis focuses primarily, but not exclusively, on increasing the number of women athletes rather

than increasing the number of women’s teams. “OCR will

assess whether past actions of the institution have expanded

participation opportunities for the underrepresented sex . . .”

(emphasis added). The number of “participation opportunities” is defined by the number of female athletes actually

playing intercollegiate sports.

UCD had seven women’s teams in 1970 and added another

in 1974, thereby increasing the number of female varsity athletes. The record indicates that UCD did not further expand

participation opportunities for women until 1996. The 1991

Report of the UCD Title IX Review Committee (Report) indicated that UCD did not comprehensively review its compliance with Title IX between 1976 and 1991. The Report also

stated that since 1976, UCD had added two women’s sports

(soccer and cross country track) but dropped two (golf and

field hockey).14 The Report concluded that UCD’s record

“cannot be termed a demonstrably responsive process of program expansion . . . particularly when female participation

relative to male participation has been decreasing over the

past three years.” Internal UCD memoranda from directors of

the athletics program suggest that the numerical participation

gap continued to grow over the next two years.15

14UCD does not dispute that it eliminated field hockey but denies that

it eliminated a women’s golf team, asserting that UCD “attempted” to start

a women’s golf team in the 1970s that “never got off the ground.” Drawing all reasonable inferences in favor of the plaintiffs, as we must, we

credit UCD’s internal report as accurately describing the elimination of a

women’s golf team. 

15In 1992 an associate athletic director warned of a “backward slide in

compliance,” and in 1993 UCD’s acting athletic director noted that “the

ratio of women participating has decreased slightly in recent years.”

2228 MANSOURIAN v. REGENTS OF UNIVERSITY OF CALIFORNIA
In 1995, UCD decided to add three women’s varsity teams.

The university reviewed proposals from five women’s club

teams and elevated water polo, crew and lacrosse to varsity

status. When the three new teams began competing the following year, the number of female athletes rose from 211 to

348, with the difference between female enrollment and

female participation in athletics dropping from twenty percent

to eleven percent. 

UCD represents that it created another women’s varsity

team, indoor track, in 1999. The addition of indoor track,

however, cannot be considered evidence of program expansion. It did nothing to expand the number of female athletes,

as all the women participating in indoor track also participated in an existing varsity sport. See Cohen v. Brown Univ.,

809 F. Supp. 978, 991 (D.R.I. 1992), aff’d, 991 F.2d 888 (1st

Cir. 1993) (dismissing the alleged addition of winter track as

“a sport that merely involved providing indoor space to the

existing women’s track team”). Nonetheless, the number of

women athletes did continue to rise. In the 1999-2000 school

year, women varsity athletes at UCD reached a historic high

in both total numbers and proportion of female athletes to

enrolled women students.

Subsequently, however, the number of women playing

intercollegiate athletics dropped sharply. Meanwhile, in the

ten years since UCD last added a significant number of

female varsity slots, the number of female students at UCD

grew by 35%. Rather than keeping pace with this growth in

women’s enrollment, the number of female athletes fluctuated

but never regained the apex it reached in 2000. 

[14] In sum, UCD expanded varsity opportunities for

women only between 1996 and 2000. UCD’s elimination of

women from the varsity wrestling team thus took place in the

context of an overall contraction of female athletic participation opportunities that began in 2000.16 UCD’s post-2000

16As noted, supra note 2, the plaintiffs have submitted sufficient facts

showing the existence of female varsity wrestling opportunities to survive

MANSOURIAN v. REGENTS OF UNIVERSITY OF CALIFORNIA 2229
strategy for sports equality between the sexes appears to have

consisted of reducing varsity athletics overall, and in the process reducing men’s participation more than women’s participation by using “roster management” to limit the size of

men’s teams. The Clarification explicitly precludes considering such reductions as evidencing program expansion:

OCR will not find a history and continuing practice

of program expansion where an institution increases

the proportional participation opportunities for

[women] by reducing opportunities for [men] alone

or by reducing participation opportunities for [men]

to a proportionately greater degree than for [women].

. . . [Option Two] considers an institution’s good

faith remedial efforts through actual program expansion. . . . Cuts in the program for [women], even

when coupled with cuts in the program for [men],

cannot be considered remedial because they burden

members of the sex already disadvantaged by the

present program.

[15] An institution that has eliminated some participation

opportunities for women can still satisfy Option Two if the

summary judgment. UCD’s subsequent decision to permit women to compete against men for a slot on the team does not affect our analysis. By

requiring women to prevail against men, the university changed the conditions under which women could participate in varsity wrestling in a manner that foreseeably precluded their future participation. 

UCD’s contention that it “ha[d] not declared wrestling to be a contact

sport” does not advance its position. First, wrestling is a contact sport

under OCR regulations. 34 C.F.R. § 106.41(b). While women must be permitted to try out for all-male teams if there is no women’s team in that

sport, this requirement is waived for contact sports. Id. But the contactsport “exemption did not give [UCD] license to discriminate against [the

plaintiffs] because of their sex once [UCD] decided to allow [them] to join

the team.” Mercer v. Duke Univ., 401 F.3d 199, 202 (4th Cir. 2005) (citation omitted). 

2230 MANSOURIAN v. REGENTS OF UNIVERSITY OF CALIFORNIA
elimination is offset by a strong history of program expansion.

In UCD’s case, however, the elimination of women’s wrestling opportunities occurred in the context of a women’s athletics program that was, at best, stagnant. We therefore hold

that UCD has not had a history of program expansion for

women and so did not satisfy Option Two through such a history.

The 1996 Clarification lists two factors that may indicate a

continuing practice of program expansion: 

[A]n institution’s current implementation of a nondiscriminatory policy or procedure for requesting the

addition of sports (including the elevation of club or

intramural teams) and the effective communication

of the policy or procedure to students; and an institution’s current implementation of a plan of program

expansion that is responsive to developing interests

and abilities.

The record contains undisputed evidence that UCD has a

procedure for requesting additional varsity sports and effectively communicates that procedure to students. According to

the procedure distributed to students, the “primary factor” in

UCD’s evaluation of proposals to create new varsity teams is

the “[o]verall impact on intercollegiate program gender equity.” In 2003, UCD received detailed applications from members of four women’s club sports (bowling, horse polo, field

hockey, and rugby) seeking elevation to varsity status. These

applications indicate that students are aware of the opportunity to request new varsity athletic opportunities.17

17UCD points to its Title IX Compliance Officer and grievance procedure as evidence of a practice of program expansion. As both are required

by OCR regulations, 34 C.F.R. § 106.8, and neither affects the number of

female athletes or teams, they do not indicate program expansion for purposes of Option Two. 

MANSOURIAN v. REGENTS OF UNIVERSITY OF CALIFORNIA 2231
The 2003 application was the field hockey club team’s second attempt to regain varsity status. An earlier application

was rejected in 1995. At that time, the Title IX Advisory

Committee advocated elevating lacrosse rather than field

hockey to varsity status but noted that field hockey had “developed strong interest from students” and was “a relatively

strong NCAA sport,” with three Division I teams competing

at nearby universities. The committee recommended that

“[s]hould gender equity not be achieved by the addition of the

three sports proposed, and funding be available in the future,

field hockey would be considered a prime candidate for addition to the ICA program in the future.” 

When field hockey club players applied for varsity status in

2003, however, their application was again denied. In fact,

UCD rejected all four club team applications, even though all

applicants were evaluated as “successful” and “active” club

teams with “a long tradition of participation.” Instead, UCD

decided to create a women’s golf team at the behest of the

men’s golf coach.

UCD contends that the fact that golf was proposed by the

men’s golf coach rather than female students is irrelevant. We

disagree. Universities are free to consider applications from

individuals other than students, and it is appropriate to evaluate interest at the high school level as well as among current

UCD students. A funding recipient can only satisfy Option

Two, however, by showing an expansion of participation

opportunities that is “demonstrably responsive to [women’s]

developing interests and abilities . . . includ[ing] interests that

already exist at the institution.” The fact that there were no

women currently attending UCD who were interested enough

in golf to participate at the club level or to request varsity status suggests that the addition of golf instead of field hockey,

bowling, horse polo or rugby was not “demonstratively

responsive” to the interests of current female students.

2232 MANSOURIAN v. REGENTS OF UNIVERSITY OF CALIFORNIA
Moreover, UCD’s selection of golf, which added only

seven participation opportunities for women, was at odds with

its stated priority of taking a significant step toward overall

gender equity. Elevating horse polo, rugby or field hockey

would have added far more female varsity athletes.18

We recognize that budgetary constraints often prevent universities from creating new teams and adding varsity slots.

But “Title IX does not require that a school pour everincreasing sums into its athletic establishment.” Cohen v.

Brown Univ., 991 F.2d at 898-99 n.15. Universities may

achieve compliance by reducing men’s athletic slots until participation rates become substantially proportionate to the

undergraduate population. Id.; Neal, 198 F.3d at 771; Kelley,

35 F.3d at 270; Roberts, 998 F.2d at 830. They may not, however, maintain varsity teams for male students while denying

female students comparable “opportunities to enjoy the thrill

of victory, the agony of defeat, and the many tangible benefits

that flow from just being given a chance to participate in

intercollegiate athletics.” Neal, 198 F.3d at 773. 

[16] UCD took a significant step towards Title IX compliance by adding three women’s teams in 1996, but Option Two

requires more than a single step. It requires evidence of continuous progress toward the mandate of gender equality that

Title IX has imposed on funding recipients for the past thirty

years. The record before us does not contain undisputed facts

showing a history and continuing practice of program expansion that is responsive to women’s interests. 

[17] We conclude that the grant of summary judgment to

UCD cannot be affirmed on the alternative merits ground that

UCD complies with Title IX’s requirement of providing equal

athletic opportunities to students of both sexes.

18UCD’s review committee estimated that field hockey would add 22

female athletes; horse polo, 35; rugby, 30 to 40. Bowling would have

added 12 to 15. 

MANSOURIAN v. REGENTS OF UNIVERSITY OF CALIFORNIA 2233
The students also sue under 42 U.S.C. § 1983, alleging that

UCD violates the Equal Protection Clause by maintaining an

athletics program that discriminates on the basis of gender.

The district court dismissed the claim because it determined

that “Title IX’s enforcement scheme is sufficiently comprehensive to . . . demonstrate that Congress intended to preclude

§ 1983 claims when it enacted this statute.” 

[18] Fitzgerald v. Barnstable School Committee, 129 S. Ct.

788 (2009), decided after the district court dismissed the students’ claims, held, to the contrary, that Title IX does not bar

§ 1983 suits to enforce rights under the Equal Protection

Clause. As in Fitzgerald, the plaintiffs here invoke § 1983 to

seek damages for violations of constitutional rights. See id. at

796-97 (explaining distinctions between the rights created by

Title IX and those afforded by the Equal Protection Clause).

The defendants concede that the district court ruling does

not survive Fitzgerald but urge us to affirm dismissal of the

§ 1983 claim on other grounds. We decline to do so, for reasons we now explain.

UCD first contends that the § 1983 claim for damages is

precluded by the statute of limitations and that the district

court did not address this argument. In fact, the district court

considered and rejected the statute of limitations defense as to

both the Title IX effective accommodation and § 1983 equal

protection claims in response to UCD’s original motion to

dismiss. The court held that because the students claimed that

they were “currently being subjected to defendants’ allegedly

sex discriminatory practices . . . their claims accrue each and

every day they are denied equal access to athletic participation.” 

[19] The district court was quite correct. Section 1983 “is

presumptively available to remedy a state’s ongoing violation

of federal law.” AlohaCare v. Haw. Dep’t. of Human Servs.,

572 F.3d 740, 745 (9th Cir. 2009) (quotation omitted). A

2234 MANSOURIAN v. REGENTS OF UNIVERSITY OF CALIFORNIA
plaintiff has adequately pled an ongoing claim if she can

“show a systematic policy or practice that operated, in part,

within the limitations period — a systematic violation.”

Douglas v. Cal. Dep’t. of Youth Auth., 271 F.3d 812, 822 (9th

Cir. 2001) (quotation omitted); see also Gutowsky v. County

of Placer, 108 F.3d 256, 259 (9th Cir. 1997) (holding plaintiff’s § 1983 claims timely because she alleged “widespread

policy and practices of discrimination [that] continued every

day of her employment, including days that fall within the

limitation period”).19 A university’s ongoing and intentional

failure to provide equal athletic opportunities for women is a

systemic violation. As the plaintiffs were students and therefore subject to the policy that allegedly discriminated on the

basis of sex at the time they filed their complaint, their § 1983

claim is not time-barred.

[20] UCD next urges this court to conclude that the § 1983

claim against the individual defendants is precluded by the

doctrine of qualified immunity. The defendants, however, did

not raise a qualified immunity defense in any of their dispositive motions before the district court.20 Our discretion to

affirm on grounds other than those relied on by the district

court extends to issues raised in a manner providing the district court an opportunity to rule on it. See Proctor v. Vishay

Intertechnology, Inc., 584 F.3d 1208, 1226 (9th Cir. 2009);

Washington v. Confederated Bands and Tribes of Yakima

Indian Nation, 439 U.S. 463, 478 n.20 (1979) (“[T]he prevailing party . . . was of course free to defend its judgment on any

ground properly raised below whether or not that ground was

relied upon, rejected, or even considered by the District Court.

19Nat’l R.R. Passenger Corp. v. Morgan, 536 U.S. 101, 114 (2002), held

that each “[d]iscrete act[ ] such as termination, failure to promote, denial

of transfer or refusal to hire . . . constitutes a separate actionable ‘unlawful

. . . practice’ ” for the purposes of triggering the statute of limitations

period in a Title VII case. Morgan left undisturbed our case law governing

continuing systemic violations. 

20UCD raised a qualified immunity defense in its answer to the students’ complaint but never litigated it thereafter. 

MANSOURIAN v. REGENTS OF UNIVERSITY OF CALIFORNIA 2235
. . .”) (emphasis added). As the district court has had no

opportunity to rule on the individual defendants’ qualified

immunity defense, we will not affirm on that basis. The dismissal of the students’ § 1983 claim is therefore reversed.

CONCLUSION

[21] For the foregoing reasons, the plaintiffs’ motion to

amend their complaint is dismissed as moot. The district

court’s grant of summary judgment to the defendants on the

Title IX claim is reversed. The district court’s order dismissing the equal protection § 1983 claim is also reversed, and the

case is remanded for further proceedings consistent with this

opinion.

REVERSED AND REMANDED.

2236 MANSOURIAN v. REGENTS OF UNIVERSITY OF CALIFORNIA