PUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

ANNETTE GRECO LITMAN,

Plaintiff-Appellee,

UNITED STATES OF AMERICA,

Intervenor-Appellee,

v.

GEORGE MASON UNIVERSITY,

Defendant-Appellant,

and

EUGENE M. NORRIS; GEOFFREY

ORSAK; GIRARD MULHERIN,

No. 98-1742

Defendants.

AMERICAN CIVIL LIBERTIES UNION OF

VIRGINIA; TRIAL LAWYERS FOR PUBLIC

JUSTICE; AMERICAN ASSOCIATION OF

UNIVERSITY WOMEN; AMERICAN

ASSOCIATION OF UNIVERSITY WOMEN

LEGAL ADVOCACY FUND; AMERICAN

CIVIL LIBERTIES UNION WOMEN'S

RIGHTS PROJECT; NATIONAL WOMEN'S

LAW CENTER,

Amici Curiae.

Appeal from the United States District Court

for the Eastern District of Virginia, at Alexandria.

James C. Cacheris, Senior District Judge.

(CA-97-1755-A)

Argued: May 5, 1999

Decided: July 28, 1999

Before NIEMEYER, MICHAEL, and TRAXLER, Circuit Judges.
Affirmed by published opinion. Judge Niemeyer wrote the opinion,

in which Judge Michael and Judge Traxler joined.

_________________________________________________________________

COUNSEL

ARGUED: William Eugene Thro, Assistant Attorney General,

OFFICE OF THE ATTORNEY GENERAL, Richmond, Virginia, for

Appellant. Alan Banov, Washington, D.C.; Seth Michael Galanter,

UNITED STATES DEPARTMENT OF JUSTICE, Washington,

D.C., for Appellees. ON BRIEF: Mark L. Earley, Attorney General

of Virginia, Ronald C. Forehand, Senior Assistant Attorney General,

OFFICE OF THE ATTORNEY GENERAL, Richmond, Virginia, for

Appellant. Bill Lann Lee, Acting Assistant Attorney General, Jessica

Dunsay Silver, UNITED STATES DEPARTMENT OF JUSTICE,

Washington, D.C., for Appellee United States. Mary Bauer, AMERICAN CIVIL LIBERTIES UNION OF VIRGINIA FOUNDATION,

Richmond, Virginia; Sarah Posner, TRIAL LAWYERS FOR PUBLIC JUSTICE, P.C., Washington, D.C., for Amici Curiae.

_________________________________________________________________

OPINION

NIEMEYER, Circuit Judge:

Annette Litman, a student at George Mason University in Fairfax,

Virginia, filed this action against the University and some of its

employees, alleging sex discrimination in violation of Title IX of the

Education Amendments of 1972, 20 U.S.C. § 1681 et seq. To justify

her suit against a state instrumentality in federal court, Litman relied

on 42 U.S.C. § 2000d-7(a)(1), which provides that "[a] State shall not

be immune under the Eleventh Amendment of the Constitution of the

United States from suit in Federal court for a violation of . . . title IX

of the Education Amendments of 1972."

George Mason University claims with respect to § 2000d-7(a)(1)

that (1) Congress lacked the requisite constitutional authority to abrogate its Eleventh Amendment immunity and (2) the provision does

not unequivocally effect a voluntary waiver of its Eleventh Amend-

 2
ment immunity. While the district court agreed with the University

that Title IX exceeded Congress' remedial authority under § 5 of the

Fourteenth Amendment to abrogate its Eleventh Amendment immunity, the district court upheld 42 U.S.C. § 2000d-7(a)(1) under the

Spending Clause of Article I of the Constitution as a lawful condition

of the University's voluntary acceptance of federal education funding

under Title IX. For the reasons that follow, we affirm.

I

George Mason University ("GMU") is a state-created university

"subject at all times to the control of the [Virginia] General Assembly." Va. Code Ann. § 23-91.24. Moreover, the parties agree that

GMU is a recipient of federal education funding within the meaning

of Title IX, 20 U.S.C. § 1681(a). See 20 U.S.C. § 1687.

In her complaint, which supplies us with the facts in this case at

the motion to dismiss stage, Annette Litman alleges that in 1995, as

a student in GMU's "extended studies" program, she enrolled in a

computer science course with Professor Eugene Norris, for whom she

also worked as a research assistant. Over the course of the fall semester, Norris became infatuated with Litman, telling her routinely that

he loved her and asking questions about her marriage and specifically

about her sex life. Norris also stalked Litman, waiting for her after her

speech class, on one occasion, to tell her that he"missed her" and

that, despite her efforts to avoid him, he "had his ways" of locating

her. After Litman terminated her research position with Norris, she

received an e-mail from him stating, "Don't marry someone you can

live with, Marry someone you can't live without."

In February 1996, Litman filed a sexual harassment complaint

against Norris with GMU's Equity Office, requesting that Norris be

reprimanded for his conduct and ordered to stay away from her. The

Equity Office ordered Norris to avoid contact with Litman, but it

refused to investigate the complaint further, characterizing Litman's

allegations of sexual harassment as a "fishing expedition" grounded

in conjecture. Finding this response inadequate, Litman sought the

intervention of GMU's president. She also circulated a petition urging

GMU to investigate Norris' alleged wrongdoings, but GMU failed to

undertake the requested investigation.

 3
Unable to locate a professor to supervise her senior research project, Litman maintained that GMU's faculty refused to interact with

her once it became known that she had filed a sexual harassment complaint against one of its members. She thereafter sent suggestive and

hostile e-mail messages to certain faculty members, resulting in two

professors instituting sexual harassment charges of their own against

her pursuant to GMU's Student Judicial Code. Following a trial

before GMU's University Judicial Board in May 1996, the Board

found Litman guilty of these charges and both imposed academic

sanctions against her and expelled her from GMU. Litman asserts that

the Board's process was so irregular that GMU effectively precluded

her from preparing an adequate defense. Litman's complaint against

Norris was tried in October 1996 and resulted in a finding that Norris

had not violated GMU's sexual harassment policy.

In October 1997, Litman filed this action alleging that GMU and

some of its employees discriminated and retaliated against her on the

basis of her sex in violation of Title IX of the Education Amendments

Act of 1972, 20 U.S.C. § 1681 et seq. Invoking Eleventh Amendment

immunity, GMU moved to dismiss the complaint for lack of jurisdiction. Litman responded, maintaining that Congress, through its enactment of the Civil Rights Remedies Equalization Act, 42 U.S.C.

§ 2000d-7(a)(1), abrogated GMU's Eleventh Amendment immunity,

or, alternatively, that GMU waived its immunity as a condition to

receiving federal funding under Title IX. When GMU contended that

Congress' effort to abrogate GMU's Eleventh Amendment immunity

was unconstitutional, the United States intervened, pursuant to 28

U.S.C. § 2403(a), to defend the constitutionality of 42 U.S.C.

§ 2000d-7(a)(1).

The district court denied GMU's motion to dismiss. Relying on

City of Boerne v. Flores, 521 U.S. 507 (1997), the court determined

that the protections afforded by Title IX differed from those afforded

by the Equal Protection Clause of the Fourteenth Amendment in

important ways. It concluded first that Title IX regulated both private

and state-sponsored conduct, whereas the Equal Protection Clause, by

its terms, regulated only state action. Second, it concluded that Title

IX reached beyond the Fourteenth Amendment's prohibitions against

gender discrimination by imposing liability on funding recipients for

"non-intentional (i.e. disparate impact) discrimination." Litman v.

 4
George Mason Univ., 5 F. Supp.2d 366, 374 (E.D. Va. 1998). The

district court accordingly concluded that § 5 of the Fourteenth

Amendment did not provide Congress with the authority to abrogate

GMU's Eleventh Amendment immunity. The court went on to hold,

however, that GMU waived its Eleventh Amendment immunity by

accepting Title IX funding, which was conditioned on the unambiguous waiver of immunity codified in 42 U.S.C. § 2000d-7(a)(1). The

court reasoned that while Congress does not have"the authority pursuant to its Article I powers to simply abrogate the States' Eleventh

Amendment immunity, Congress does have the power to require the

States to waive their immunity pursuant to a valid exercise of its

spending power." Id. at 375. Relying on language in South Dakota v.

Dole, 483 U.S. 203 (1987), and New York v. United States, 505 U.S.

144 (1992), the district court also emphasized that the Eleventh

Amendment presented no "independent constitutional bar" to Congress' employing its spending power in this manner. Id. at 376 (internal quotation marks omitted).

From the district court's denial of GMU's motion asserting Eleventh Amendment immunity, GMU noticed this interlocutory appeal.

See Puerto Rico Aqueduct & Sewer Auth. v. Metcalf & Eddy, Inc.,

506 U.S. 139, 147 (1993) (holding that "States and state entities that

claim to be `arms of the State' may take advantage of the collateral

order doctrine to appeal a district court order denying a claim of Eleventh Amendment immunity").

II

On appeal, GMU contends that notwithstanding the provisions of

the Civil Rights Remedies Equalization Act, 42 U.S.C. § 2000d7(a)(1), which amended Title IX to make explicit that "[a] State shall

not be immune under the Eleventh Amendment of the Constitution of

the United States from suit in Federal court for a violation of . . . title

IX of the Education Amendments of 1972," it may not be sued in federal court. It argues that in enacting § 2000d-7(a)(1), Congress lacked

the power to abrogate Eleventh Amendment immunity through § 5 of

the Fourteenth Amendment and also that GMU did not consent to a

waiver because "there is nothing in Title IX or in Congress' attempt

to abrogate the Eleventh Amendment which states that waiver of the

Eleventh Amendment is a condition of receiving federal funds."

 5
Before determining whether Congress' effort to abrogate GMU's

Eleventh Amendment immunity is justified by § 5 of the Fourteenth

Amendment, we first consider whether GMU consented to waive its

Eleventh Amendment immunity as a condition of receiving federal

education funds.

The Eleventh Amendment provides in pertinent part that "[t]he

judicial power of the United States shall not be construed to extend

to any suit in law or equity, commenced or prosecuted against one of

the United States by Citizens of another State." It is well established

that this amendment, despite its express terms, also precludes citizens

from bringing suits in federal court against their own states. See Hans

v. Louisiana, 134 U.S. 1 (1890); see also Alden v. Maine, No. 98-436,

1999 WL 412617, at *15 (U.S. June 23, 1999) (emphasizing that the

Eleventh Amendment confirms rather than establishes a state's

sovereign immunity as a constitutional principle and that its sovereign

immunity is not limited by the text of the Eleventh Amendment).

By limiting the federal judicial power over the states, the Eleventh

Amendment preserves a federal balance and confirms the constitutional design in which each state remains a sovereign entity generally

immune from suit. See Seminole Tribe of Florida v. Florida, 517 U.S.

44, 58, 72 (1996); see also Alden, 1999 WL 412617, at *28 (stating

that "[t]he principle of sovereign immunity preserved by constitutional design thus accords the States the respect owed them as members of the federation" (internal quotation marks and citation

omitted)). Inherent in this federal structure is the mutual, reciprocating respect for the state and federal sovereigns, and forcing one sovereign to appear against its will in the courts of another violates this

respect. See Seminole Tribe, 517 U.S. at 54; see also Alden, 1999 WL

412617, at *7 (stating that because the "States retain a `residuary and

inviolable sovereignty,' [t]hey are not relegated to the role of mere

provinces or political corporations, but retain the dignity, though not

the full authority of sovereignty" (quoting The Federalist No. 39)).

Accordingly,

[t]he Eleventh Amendment does not exist solely in order to

prevent federal-court judgments that must be paid out of a

State's treasury; it also serves to avoid the indignity of sub-

 6
jecting a State to the coercive process of judicial tribunals

at the instance of private parties.

Seminole Tribe, 517 U.S. at 58 (internal quotation marks, brackets,

and citations omitted).

The immunity guaranteed by the Eleventh Amendment, however,

has well-established exceptions also inherent in the federal structure.

First, Congress can abrogate the immunity without state consent if it

acts pursuant to a valid exercise of constitutional power sufficient to

abrogate the immunity and it unequivocally expresses its intent to do

so. See Seminole Tribe, 517 U.S. at 55. Because the Fourteenth

Amendment was adopted well after both the Eleventh Amendment

and the ratification of the Constitution, and was designed to "expand[ ] federal power at the expense of state autonomy," the power

granted to Congress by § 5 of the Fourteenth Amendment is recognized to "intrude upon the province of the Eleventh Amendment." Id.

at 59. Accordingly, Congress may act under the authority of § 5 of the

Fourteenth Amendment to abrogate a state's Eleventh Amendment

immunity. See College Savings Bank v. Florida Prepaid Postsecondary Educ. Expense Bd., No. 98-149, 1999 WL 412639, at *3 (U.S.

June 23, 1999) (citing Fitzpatrick v. Bitzer, 427 U.S. 445 (1976)).

In addition, the Eleventh Amendment does not preclude the federal

government from bringing suit against states in federal court to ensure

compliance with federal law. See Seminole Tribe , 517 U.S. at 71 n.14;

United States v. Texas, 143 U.S. 621, 644-45 (1892). Nor does the

Eleventh Amendment preclude a private citizen from suing a state

officer in federal court "to ensure that the officer's conduct is in compliance with federal law." Seminole Tribe, 517 U.S. at 71 n.14 (citing

Ex Parte Young, 209 U.S. 123 (1908)).

Finally, a state may waive its Eleventh Amendment immunity by

consenting to be sued in federal court. See College Savings Bank,

1999 WL 412639, at *3; Idaho v. Coeur d'Alene Tribe of Idaho, 521

U.S. 261, 267 (1997); Seminole Tribe, 517 U.S. at 63 (acknowledging

the "unremarkable . . . proposition that the States may waive their

sovereign immunity" (citations omitted)); Atascadero State Hosp. v.

Scanlon, 473 U.S. 234, 238 (1985). Permitting such waivers reflects

the fact that sovereign immunity is an element of state sovereignty,

 7
not a categorical limitation on the federal judicial power. See Coeur

d'Alene Tribe of Idaho, 521 U.S. at 267 (stating that, because "a State

can waive its Eleventh Amendment protection and allow a federal

court to hear and decide a case commenced or prosecuted against it,"

the Eleventh Amendment "enacts a sovereign immunity from suit,

rather than a nonwaivable limit on the Federal Judiciary's subjectmatter jurisdiction" (emphasis added)); see also Erwin Chemerinsky,

Federal Jurisdiction 406 (2d ed. 1994) (linking the Eleventh Amendment with principles of sovereign immunity and observing that

"[t]raditionally, sovereign immunity could be waived and that principle has carried over to Eleventh Amendment jurisprudence").

A state may waive its immunity in two ways. See Booth v.

Maryland, 112 F.3d 139, 145 (4th Cir. 1997). It may "directly and

affirmatively waive its Eleventh Amendment immunity in a state statute or constitutional provision, as long as the provision explicitly

`specif[ies] the state's intention to subject itself to suit in federal

court.'" Id. (quoting Atascadero State Hosp., 473 U.S. at 241 (brackets in original)). Alternatively, it may "waive its immunity by voluntarily participating in federal spending programs when Congress

expresses `a clear intent to condition participation in the programs . . .

on a State's consent to waive its constitutional immunity.'" Id. (quoting Atascadero State Hosp., 473 U.S. at 247 (ellipses in original)).

But because of the Eleventh Amendment's vital role in preserving

the federal balance, determinations of whether a State has waived its

immunity are subjected to "stringent," exacting standards. College

Savings Bank, 1999 WL 412639, at *7 (quoting Atascadero State

Hosp., 473 U.S. at 241). Thus, a court may not find a waiver absent

an "unequivocal indication that the State intends to consent to federal

jurisdiction that otherwise would be barred by the Eleventh Amendment." Atascadero State Hosp., 473 U.S. at 238 n.1; see also

Pennhurst State School v. Halderman ("Pennhurst I"), 451 U.S. 1, 17

(1981) (citations omitted); Edelman v. Jordan , 415 U.S. 651, 673

(1974). "The whole point of requiring a `clear declaration' by the

State of its waiver is to be certain that the State in fact consents to

suit." College Savings Bank, 1999 WL 412639, at *9. Accordingly,

a State cannot be deemed to have waived its Eleventh Amendment

immunity constructively even by engaging in activities after Congress

has "made clear that such activity would subject[the State] to suit [in

 8
federal court]." Id. at *4, *9 (overruling Parden v. Terminal R. Co.

of Ala. Docks Dep't, 377 U.S. 184 (1964)). Similarly, the "mere

receipt of federal funds cannot establish that a State has consented to

suit in federal court." Atascadero State Hosp., 473 U.S. at 246-47

(citations omitted).

Litman contends in this case that GMU, by accepting federal education funds under Title IX, has, as a condition of receiving those

funds, unambiguously waived its Eleventh Amendment immunity.

The district court agreed. GMU, on the other hand, contends that

while 42 U.S.C. § 2000d-7(a)(1) indicates, albeit unconstitutionally,

that it is subject to suit in federal court, "there is nothing in the text

that even remotely suggests that Virginia's public universities must

waive the Eleventh Amendment as a condition of receiving federal

funds. Indeed, the statute does not even contain the word `waiver.'"

It argues that a statute "must say something like`as a condition of

receiving federal funds under this Act, the States agree to waive their

Eleventh Amendment immunity'" and that absent such explicit language, the mere receipt of Title IX funds cannot effect a waiver.

To resolve this dispute, we turn to the applicable statutory provisions to determine whether they provide unambiguously that GMU,

by agreeing to receive federal education funds under Title IX, has

waived its Eleventh Amendment immunity.

III

The statutory framework applicable to this case is straightforward.

Title IX provides that in connection with any education program or

activity receiving federal financial assistance, stipulated here to

include GMU's program, "[n]o person . . . shall, on the basis of sex,

be excluded from participation in, be denied the benefits of, or be subjected to discrimination." 20 U.S.C. § 1681(a). The Supreme Court

has held that this provision gives a student an implied right of action

for sexual harassment by a teacher in such a program, provided the

program's officials have "actual notice of, and[have been] deliberately indifferent to, the teacher's misconduct." Gebser v. Lago Vista

Indep. School Dist., 118 S. Ct. 1989, 1993 (1998). Finally, 42 U.S.C.

§ 2000d-7(a)(1) provides that for a violation of the antidiscrimination

 9
edict in § 1681(a), a state "shall not be immune under the Eleventh

Amendment . . . from suit in Federal court."

Section 1681(a), which precludes the use of Title IX federal education funds for discriminatory purposes, was enacted under the Spending Clause of the Constitution, U.S. Const. art. I,§ 8, cl. 1 ("The

Congress shall have Power To lay and collect Taxes .. . to . . . provide for the . . . general Welfare of the United States"). As a federal

spending program, it operates "much in the nature of a contract: in

return for federal funds, the States agree to comply with federally

imposed conditions." Pennhurst I, 451 U.S. at 17; see also Davis v.

Monroe County Bd. of Educ., 119 S. Ct. 1661, 1669 (1999) (characterizing Title IX as Spending Clause legislation); Gebser, 118 S. Ct.

at 1997 (same). In other words, in exercising its spending power, the

federal government "condition[s] an offer of federal funding on a

promise by the recipient not to discriminate, in what amounts essentially to a contract between the Government and the recipient of

funds." Gebser, 118 S. Ct. at 1997 (citations omitted); see also Davis,

119 S. Ct. at 1670. And it also conditions these funds on the recipient

state's consent to be sued in federal court for an alleged breach of the

promise not to discriminate. See 42 U.S.C.§ 2000d-7(a)(1).

Because of the mutuality required in a contractual relationship of

this type -- the federal grant in exchange for state agreement to

attached conditions -- the legitimacy of the attached conditions rests

"on whether the State voluntarily and knowingly accepts the terms of

the `contract.'" Pennhurst I, 451 U.S. at 17 (citations omitted). Thus,

Spending Clause legislation, in contrast to other Article I legislation

or § 5 legislation, presents a state with a choice: the state can either

comply with certain congressionally mandated conditions in exchange

for federal funds or not comply and decline the funds. Similarly,

"Congress has no obligation to use its Spending Clause power to disburse funds to the States; such funds are gifts." College Savings Bank,

1999 WL 412639, at *12. As the Supreme Court has observed, the

attachment of conditions to grants made under the Spending Clause

is a "permissible method of encouraging a State to conform to federal

policy choices." New York v. United States , 505 U.S. 144, 168 (1992).

The Court explained,

If a State's citizens view federal policy as sufficiently contrary to local interests, they may elect to decline a federal

 10
grant. If state residents would prefer their government to

devote its attention and resources to problems other than

those deemed important by Congress, they may choose to

have the Federal Government rather than the State bear the

expense of a federally mandated regulatory program, and

they may continue to supplement that program to the extent

state law is not pre-empted. Where Congress encourages

state regulation rather than compelling it, state governments

remain responsive to the local electorate's preferences; state

officials remain accountable to the people.

Id. As a general proposition, therefore, when Congress acts pursuant

to its spending power, there is no categorical prohibition against its

attaching conditions to grants made to the states. See College Savings

Bank, 1999 WL 412639, at *12; New York, 505 U.S. at 167; South

Dakota v. Dole, 483 U.S. 203, 206 (1987).

This mechanism for exercising power under the Spending Clause,

however, must have limits. Otherwise, Congress "could render academic the Constitution's other grants and limits of federal authority."

New York, 505 U.S. at 167. Indeed, an unlimited Spending Clause

power could circumvent the entire constitutional structure. As Justice

O'Connor observed,

[i]f the spending power is to be limited only by Congress'

notion of the general welfare, the reality, given the vast

financial resources of the Federal Government, is that the

Spending Clause gives "power to the Congress to tear down

the barriers, to invade the states' jurisdiction, and to become

a parliament of the whole people, subject to no restrictions

save such as are self-imposed."

South Dakota, 483 U.S. at 217 (O'Connor, J., dissenting) (quoting

United States v. Butler, 297 U.S. 1, 78 (1936)).

The Supreme Court has recognized at least five such limitations.

First, the exercise of the spending power must be for the general welfare. See U.S. Const. art. I, § 8, cl. 1; South Dakota, 483 U.S. at 207.

Second, if the grant or expenditure is, when made to the states,

accompanied by conditions, the conditions must be stated "unambigu-

 11
ously." South Dakota, 483 U.S. at 207. Third, any conditions imposed

must "bear some relationship to the purpose of the federal spending"

so that a reasonable nexus exists between the two. New York, 505

U.S. at 167; South Dakota, 483 U.S. at 207-08; Massachusetts v.

United States, 435 U.S. 444, 461 (1978) (plurality opinion). Fourth,

the grant or expenditure and the conditions attached to it may not violate any independent constitutional prohibition. See South Dakota,

483 U.S. at 208. And fifth, the financial inducement offered by Congress must not be "so coercive as to pass the point at which pressure

turns into compulsion." Id. at 211 (internal quotation marks and citations omitted); see also Virginia Dep't of Educ. v. Riley, 106 F.3d

559, 570 (4th Cir. 1997) (en banc) (plurality opinion of Luttig, J.)

(finding coercive Congress' withholding of "the entirety of a substantial federal grant on the ground that the States refuse to fulfill their

federal obligation in some insubstantial respect rather than submit to

the policy dictates of Washington in a matter peculiarly within their

powers as sovereign States").

In the context of Title IX as applicable to the case before us, Congress has attached at least two conditions to GMU's receipt of Title

IX funding: (1) GMU cannot discriminate on the basis of sex, see 20

U.S.C. § 1681(a), and (2) when responding to alleged acts of discrimination, GMU waives its Eleventh Amendment immunity, see 42

U.S.C. § 2000d-7(a)(1). This appeal requires us to determine whether

these conditions, considered together, fall within the limitations

imposed on Congress' Spending Clause power under current Supreme

Court jurisprudence.

GMU does not contend that Title IX funds are not spent for the

general welfare; that the prohibition of discrimination and the accompanying waiver of Eleventh Amendment immunity are not reasonably

related to grants of education funds; or that the attachment of conditions to the funding arrangement is coercive. Rather, it maintains that

it did not knowingly waive its Eleventh Amendment immunity

because that condition of waiver was not made unambiguously clear

in the text of § 2000d-7(a)(1). That provision, GMU observes, uses

neither the term "condition" nor the term"waiver." GMU also contends that Congress may not impose a waiver of Eleventh Amendment immunity as a condition of funding: "it is constitutionally

impossible for Congress to require the States to waive the Eleventh

 12
Amendment as a condition of receiving federal funds." We address

these two points in order.

A

GMU acknowledges that it voluntarily accepts Title IX funding.

Indeed, it must apply for federal funds. And in connection with any

application, it must assure the Federal Government of its intent to

comply with 20 U.S.C. § 1681(a). Implementing regulations provide

that each recipient of Title IX funding must enter into a contract of

assurance with the Department of Education and thereby manifest its

intent to adhere to the conditions imposed by Title IX. See 34 C.F.R.

§ 106.4(a) (providing, in pertinent part, that"[e]very application for

Federal financial assistance for any education program or activity

shall as condition of its approval contain or be accompanied by an

assurance from the applicant or recipient, satisfactory to the Assistant

Secretary, that each education program or activity operated by the

applicant or recipient and to which this part applies will be operated

in compliance with this part"). Thus, in voluntarily accepting federal

education funds, GMU is unequivocally put on notice of three conditions: (1) that it may not discriminate in its programs on the basis of

sex, see 20 U.S.C. § 1681(a); (2) that if it does discriminate on the

basis of sex, it may be sued by a private individual, see Gebser, 118

S. Ct. at 1996, 1999; and (3) that in any such suit, it may not assert

its Eleventh Amendment immunity, see 42 U.S.C. § 2000d-7(a)(1).

There can be no doubt that GMU is able "to ascertain what is

expected of it" in return for federal education funds. Pennhurst I, 451

U.S. at 17.

The Supreme Court appears to have acquiesced in this same construction, characterizing the waiver language of§ 2000d-7(a)(1) as

unequivocal. In the context of evaluating whether, under § 2000d7(a)(1), federal agencies, like private entities, would be subject to

monetary damages for Rehabilitation Act violations, the Court

observed:

By enacting [42 U.S.C. § 2000d-7(a)(1)], Congress sought

to provide the sort of unequivocal waiver that our precedents demanded.

 13
* * *

Given the care with which Congress responded to our decision in Atascadero by crafting an unambiguous waiver of

the States' Eleventh Amendment immunity in [42 U.S.C.

§ 2000d-7(a)(1)], it would be ironic indeed to conclude that

the same provision "unequivocally" establishes a waiver of

the Federal Government's sovereign immunity against monetary damages awards . . . in the remedies provision attached

to the unambiguous waiver of the States' sovereign

immunity.

Lane v. Pena, 518 U.S. 187, 198, 200 (1996) (emphasis added).

Thus, we conclude that Congress succeeded in its effort to codify

a clear, unambiguous, and unequivocal condition of waiver of Eleventh Amendment immunity in 42 U.S.C. § 2000d-7(a)(1). In enacting

that section, Congress responded with "care" to "[the Supreme

Court's] decision in Atascadero by crafting an unambiguous waiver

of the state's Eleventh Amendment immunity." Id. at 200; accord

Clark v. California, 123 F.3d 1267, 1271 (9th Cir. 1997) (relying on

42 U.S.C. § 2000d-7(a) in the context of holding that California, by

accepting federal funds under the Rehabilitation Act, waived its Eleventh Amendment immunity), cert. denied sub nom. Wilson v.

Armstrong, 118 S. Ct. 2340 (1998). Moreover, any state reading

§ 2000d-7(a)(1) in conjunction with 20 U.S.C.§ 1681(a) would

clearly understand the following consequences of accepting Title IX

funding: (1) the state must comply with Title IX's antidiscrimination

provisions, and (2) it consents to resolve disputes regarding alleged

violations of those provisions in federal court.

In reaching this conclusion, we reject GMU's assertion that a statute "must say something like `as a condition of receiving federal

funds under this Act, the States agree to waive their Eleventh Amendment immunity.'" The only difference between GMU's proffered language and that employed in § 2000d-7(a)(1) is that the former is cast

in the affirmative (i.e., "the States agree to waive") and the latter in

the negative (i.e., "a State shall not be immune"). But this difference

in phrasing is of no constitutional import. Using negative rather than

affirmative language does not alter the plain meaning of § 2000d-

 14
7(a)(1) -- that is, by accepting Title IX funding, a state agrees to

waive its Eleventh Amendment immunity.

B

GMU's second argument, that Congress cannot employ its spending power in a manner that conditions a state's receipt of funding

upon a waiver of Eleventh Amendment immunity, is also without

merit under current Supreme Court jurisprudence. While the Supreme

Court in South Dakota noted that the spending power "may not be

used to induce the States to engage in activities that would themselves

be unconstitutional," 483 U.S. at 210, such as conditioning a grant of

federal funds "on invidiously discriminatory state action or the infliction of cruel and unusual punishment," id. , it stated that the range of

permissible conditions extended beyond the original enumerations of

congressional power granted by the Constitution, see id. Thus, while

abrogating Eleventh Amendment immunity would be impossible

unless exercised under the Fourteenth Amendment, see Seminole

Tribe, 517 U.S. at 59, conditioning federal funds on an unambiguous

waiver of a state's Eleventh Amendment immunity is as permissible

as a state's direct waiver of such immunity. See Alden, 1999 WL

412617, at *32 ("Nor, subject to constitutional limitations, does the

Federal Government lack the authority or means to seek the States'

voluntary consent to private suits" (citing South Dakota)); see also

College Savings Bank, 1999 WL 412639, at *12 & n.2 (suggesting

that Congress, in legislating under the Spending Clause, can condition

a waiver of sovereign immunity upon the states' acceptance of a federal grant). Thus, when a condition under the Spending Clause

includes an unambiguous waiver of Eleventh Amendment immunity,

the condition is constitutionally permissible as long as it rests on the

state's voluntary and knowing acceptance of it. See Atascadero State

Hosp., 473 U.S. at 238-40; Pennhurst I, 451 U.S. at 17.

Accordingly, we conclude that Congress, in enacting 42 U.S.C.

§ 2000d-7(a)(1), permissibly conditioned GMU's receipt of Title IX

funds on an unambiguous waiver of GMU's Eleventh Amendment

immunity, and that, in accepting such funding, GMU has consented

to litigate Litman's suit in federal court.

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IV

The important role that the Eleventh Amendment plays in our federal structure demands that we pause to consider the larger implications of concluding that a state waives its immunity from suit in

federal court by accepting Title IX funding. This inquiry is especially

important given the recent intensity with which the Supreme Court

and this circuit have focused on issues of federalism, separation of

powers, and a limited federal government. See , e.g., Alden v. Maine,

No. 98-436, 1999 WL 412617 (U.S. June 23, 1999); College Savings

Bank v. Florida Prepaid Postsecondary Educ. Expense Bd., No. 98-

149, 1999 WL 412639 (U.S. June 23, 1999); Florida Prepaid Postsecondary Educ. Expense Bd. v. College Savings Bank , No. 98-531,

1999 WL 412723 (U.S. June 23, 1999); Printz v. United States, 521

U.S. 898 (1997); City of Boerne v. Flores, 521 U.S. 507 (1997);

Seminole Tribe of Florida v. Florida, 517 U.S. 44 (1996); United

States v. Lopez, 514 U.S. 549 (1995); New York v. United States, 505

U.S. 144 (1992); Gregory v. Ashcroft, 501 U.S. 452, 457-59 (1991);

Brzonkala v. Virginia Polytechnic Inst., 169 F.3d 820 (4th Cir. 1999)

(en banc); Brown v. North Carolina Div. of Motor Vehicles, 166 F.3d

698 (4th Cir. 1999); Condon v. Reno, 155 F.3d 453 (4th Cir. 1998),

cert. granted, 119 S. Ct. 1753 (1999); In re Creative Goldsmiths of

Washington, D.C., Inc., 119 F.3d 1140, 1145 (4th Cir. 1997), cert.

denied sub nom. Schlossburg v. Maryland Comptroller of Treasury,

118 S. Ct. 1517 (1998).

These decisions collectively counsel that we not lightly conclude

that principles of federalism and state sovereign immunity permit

Congress to employ its spending power in a manner that ultimately

effects a waiver of a state's Eleventh Amendment immunity. See

generally Lopez, 514 U.S. at 578 (Kennedy, J., concurring) ("[T]he

federal balance is too essential a part of our constitutional structure

and plays too vital a role in securing freedom for us to admit inability

to intervene when one or the other level of Government has tipped the

scales too far"). Specifically, any conclusion we reach today must

respect the Supreme Court's admonition in Seminole Tribe that the

"Eleventh Amendment restricts the judicial power under Article III,

and Article I cannot be used to circumvent limitations placed upon

federal jurisdiction." 517 U.S. at 72-73. Further, we must acknowledge that "[r]ecognizing a congressional power to exact constructive

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waivers of sovereign immunity through the exercise of Article I powers would also, as a practical matter, permit Congress to circumvent

the antiabrogation holding of Seminole Tribe." College Savings Bank,

1999 WL 412639, at *11.

We do not intend to question these propositions. However, we do

not read Seminole Tribe and its progeny, including the Supreme

Court's recent Eleventh Amendment decisions, to preclude Congress

from conditioning federal grants on a state's consent to be sued in

federal court to enforce the substantive conditions of the federal

spending program. Indeed, to do so would affront the Court's

acknowledgment in Seminole Tribe of "the unremarkable . . . proposition that States may waive their sovereign immunity." 517 U.S. at 65.

Furthermore, in New York the Court emphasized that principles of

federalism do not pose an independent constitutional bar to Congress'

powers under the Spending Clause:

By [employing the spending power to attach conditions on

the States' receipt of federal funding], as by any other permissible method of encouraging a State to conform to federal policy choices, the residents of the State retain the

ultimate decision as to whether or not the State will comply.

If a State's citizens view federal policy as sufficiently contrary to local interests, they may elect to decline a federal

grant.

New York, 505 U.S. at 168. If the Supreme Court were one day to

adopt a Madisonian construction of the Spending Clause,* perhaps

_________________________________________________________________

*As an original matter, Alexander Hamilton and James Madison

appear to have taken different positions regarding the scope and purposes

of the Spending Clause. Hamilton contended that"[t]he terms `general

Welfare' [as used in the Spending Clause] were doubtless intended to

signify more than was expressed or imported in those which Preceded;

otherwise numerous exigencies incident to the affairs of a Nation would

have been left without a provision." Alexander Hamilton, Report on

Manufacturers (Dec. 5, 1791), reprinted in 2 The Founders' Constitution

446, 446 (Philip B. Kurland & Ralph Lerner eds., 1987). He reasoned:

The phrase is as comprehensive as any that could have been

used; because it was not fit that the constitutional authority of the

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Congress would be inhibited from implementing a spending program

that both intruded upon a state's general police powers and conditioned the outlay of funding on a state's waiving its sovereign immu-

_________________________________________________________________

Union to appropriate its revenues shou'd have been restricted

within narrower limits than the "General Welfare" and because

this necessarily embraces a vast variety of particulars, which are

susceptible neither of specification nor of definition.

Id. at 446-47.

Madison, on the other hand, believed that the history underlying the

insertion of the "general Welfare" language into the Spending Clause

proved Hamilton's construction to be error. He contended that the Framers never "understood [that phrase to] invest Congress with powers not

otherwise bestowed by the constitutional charter." Letter from James

Madison to Andrew Stevenson (Nov. 27, 1830), reprinted in 2 The

Founders' Constitution, supra, 453, 456. Madison grounded his construction of the Spending Clause in principles underlying our federal

order:

[F]or it exceeds the possibility of belief, that the known advocates in the Convention for a jealous grant and cautious definition of Federal powers should have silently permitted the

introduction of words or phrases in a sense rendering fruitless the

restrictions and definitions elaborated by them.

Consider for a moment the immeasurable difference between the

Constitution limited in its powers to the enumerated objects, and

expounded as it would be by the import claimed for the phraseology in question. The difference is equivalent to two Constitutions, of characters essentially contrasted with each other -- the

one possessing powers confined to certain specified cases, the

other extended to all cases whatsoever; for what is the case that

would not be embraced by a general power to raise money, a

power to provide for the general welfare, and a power to pass all

laws necessary and proper to carry these powers into execution;

all such provisions and laws superseding, at the same time, all

local laws and constitutions at variance with them? Can less be

said, with the evidence before us furnished by the journal of the

Convention itself, then that it is impossible that such a Constitution as the latter would have been recommended to the States by

all the members of that body whose names were subscribed to

the instrument?

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nity. In deciding this case, however, we are bound by the Court's

existing constructions of the scope of Congress' spending power.

Because we hold that GMU, through its acceptance of Title IX

funding, waived its Eleventh Amendment immunity, we need not

reach the question of whether Congress can constitutionally abrogate

that immunity through § 5 of the Fourteenth Amendment. Accordingly, the judgment of the district court is

AFFIRMED.

_________________________________________________________________

* * *

The Constitution is a limited one, possessing no power not actually given, and carrying on the face of it a distrust of power

beyond the distrust indicated by the ordinary forms of free Government.

Id. at 455, 457.

In United States v. Butler, 297 U.S. 1 (1936), albeit in dictum, the

Supreme Court appears to have acquiesced in the Hamiltonian position:

While, therefore, the power to tax is not unlimited, its confines

are set in the clause which confers it, and not in those of § 8

which bestow and define the legislative powers of the Congress.

It results that the power of Congress to authorize expenditure of

public moneys for public purposes is not limited by the direct

grants of legislative power found in the Constitution.

Id. at 66. The Court confirmed its adoption of the Hamiltonian view one

year later in Steward Machine Co. v. Davis, 301 U.S. 548, 586-87 (1937)

(Cardozo, J.) (upholding New Deal legislation and observing that "[i]t is

too late today for the argument to be heard with tolerance that in a crisis

so extreme the use of the moneys of the nation to relieve the unemployed

and their dependents is a use for any purpose narrower than the promotion of the general welfare" (citing Butler , 297 U.S. at 65-66)).

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