Kelly Cherry v. University of Wisconsin System Board of Regents

In the
United States Court of Appeals
For the Seventh Circuit
No. 00-2435
Kelly Cherry,
Plaintiff-Appellee,
v.
University of Wisconsin System
Board of Regents,
Defendant-Appellant.
Appeal from the United States District Court
for the Western District of Wisconsin.
No. 00 C 142--John C. Shabaz, Judge.
Argued January 18, 2001--Decided September 7, 2001
Before Bauer, Manion, and Diane P. Wood,
Circuit Judges.
Manion, Circuit Judge. Kelly Cherry sued
her former employer, the Board of Regents
of the University of Wisconsin System,
alleging that the Board paid her at a
lower rate of compensation than her male
colleagues because of her sex, in
violation of the Equal Pay Act and Title
IX. The Board moved to dismiss, alleging
that the Eleventh Amendment bars Cherry’s
claims. The district court denied the
motion, and the Board appealed. We
affirm.
I.
Professor Kelly Cherry taught in the
English Department at the University of
Wisconsin-Madison from 1977 to 1999. The
Board of Regents of the University of
Wisconsin System ("the Board") is a State
entity that oversees the University of
Wisconsin-Madison, which is a State
educational institution and recipient of
Title IX funds from the federal
government. Cherry was a tenured
professor at the University of Wisconsin-
Madison until she resigned on August 22,
1999.
After her resignation, Cherry sued the
Board, alleging that her salary "remained

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significantly lower" than that of her
male colleagues with similar credentials,
and thus, over a number of years, she
"was subjected to sex discrimination on
the basis of salary" in violation of the
Equal Pay Act ("EPA"), 29 U.S.C. sec.
206(d), and Title IX of the Education
Amendments of 1972, 20 U.S.C. sec. 1681.
Cherry sought compensatory and punitive
damages in her Amended Complaint. The
Board moved to dismiss Cherry’s Amended
Complaint, arguing that: (1) Title VII is
Cherry’s sole avenue for her claims, and
thus it precludes her EPA and Title IX
claims;/1 (2) Cherry fails to state a
Title IX claim; (3) the Eleventh
Amendment bars the EPA and Title IX
claims; and (4) the Board is immune from
any punitive damages award under Title
IX. The district court denied the Board’s
motion, rejecting all of the Board’s
arguments. The Board appealed.
II.
In this collateral order appeal, the
Board reasserts all of the arguments that
it raised in its motion to dismiss. Under
28 U.S.C. sec. 1291, we have jurisdiction
over appeals from "’final decisions’ of
the district courts." Furnace v. Board of
Trustees of Southern Illinois University,
218 F.3d 666, 669 (7th Cir. 2000)
(quoting 28 U.S.C. sec. 1291). A district
court’s denial of a motion to dismiss is
not a final decision. Lac Courte Oreilles
Band of Lake Superior Chippewa Indians v.
State of Wisconsin, 829 F.2d 601, 602
(7th Cir. 1987). But the collateral order
doctrine is a "narrow exception to the
finality rule." In re Moens, 800 F.2d
173, 175 (7th Cir. 1986). It permits an
appeal from a non-final judgment if three
criteria are met: the order must "(1)
’conclusively determine the disputed
question,’ (2) ’resolve an important
issue completely separate from the merits
of the action,’ and (3) ’be effectively
unreviewable on appeal from a final judg
ment.’" Midland Asphalt Corp. v. United
States, 489 U.S. 794, 799 (1989) (quoting
Coopers & Lybrand v. Livesay, 437 U.S.
463, 468 (1978)); see also Furnace, 218
F.3d at 669 n. 2. The third criterion is
difficult to satisfy, as the Supreme
Court has stressed that the "narrow
exception" of the collateral order appeal
"is limited to trial orders ’affecting
rights that will be irretrievably lost in
the absence of an immediate appeal.’" In

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re Moens, 800 F.2d at 176 (quoting
Richardson-Merrell, Inc. v. Koller, 472
U.S. 424, 430-31 (1985)). We must
determine whether the Board’s claims are
immediately appealable without regard to
whether a prompt decision by this court
will resolve the litigation more quickly.
See Digital Equipment Corp. v. Desktop
Direct, Inc., 511 U.S. 863, 868 (1994).
Because the Eleventh Amendment concerns
the Board’s privilege not to be sued,
which is a privilege that would be
irretrievably lost if it were not
immediately appealable, the issue of
immunity from suit is properly raised in
this collateral appeal. Puerto Rico
Aqueduct & Sewer Authority v. Metcalf &
Eddy, Inc., 506 U.S. 139, 146 (1993); see
also id. ("’The very object and purpose
of the 11th Amendment were to prevent the
indignity of subjecting a State to
thecoercive process of judicial tribunals
at the instance of private parties.’"
(quoting In re Ayers, 123 U.S. 443, 505
(1887))). But the additional (non-
immunity) claims asserted by the Board in
support of its motion to dismiss (that
Cherry failed to state a Title IX claim,
and that Title VII precludes Cherry’s EPA
and Title IX claims) are not immediately
appealable because they can be
effectively reviewed on appeal from a
final judgment. See Lac Courte, 829 F.2d
at 602 (a refusal to dismiss a complaint
or part thereof is the classic example of
a nonfinal order that is not appealable
under 28 U.S.C. sec. 1291, either
directly or by invoking the collateral
order rule). After a later final judgment
of the district court, this court may
effectively review the issues of whether
Title VII precludes Cherry’s EPA and
Title IX claims, and whether Cherry
properly failed to state a Title IX
claim. In line with this court’s
reluctance to exercise pendent appellate
jurisdiction over additional issues in a
collateral appeal, we decline to exercise
such jurisdiction in this case. See
United States v. Bloom, 149 F.3d 649, 657
(7th Cir. 1998); see also Swint v.
Chambers County Comm’n, 514 U.S. 35, 49-
50 (1995) (expressing concern that "a
rule loosely allowing pendent appellate
jurisdiction" would encourage parties to
parlay collateral orders into "multi-
issue interlocutory appeal tickets").
We also decline to address the Board’s

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claim that it is immune from a punitive
damages award under Title IX. A claim of
immunity to a certain class of damages is
"’far removed’" from a claim of immunity
from litigation. Burns-Vidlak v.
Chandler, 165 F.3d 1257, 1260 (9th Cir.
1999) (quoting Pullman Constr. Indus.,
Inc. v. United States, 23 F.3d 1166, 1169
(7th Cir. 1994)). "[T]he Supreme Court
has made it clear that a potentially
’erroneous ruling on liability may be
reviewed effectively on appeal from final
judgment.’" Burns-Vidlak, 165 F.3d at
1261 (quoting Swint, 514 U.S. at 43). If
punitive damages are permitted to be, and
in fact are assessed against the Board,
this court can certainly review that
issue if it arises from a later final
judgment of the district court. In the
meantime, the Board’s claimed immunity
from a punitive damages award will not be
irretrievably lost if it is not reviewed
in this collateral appeal. See, e.g.,
Moreno v. Consolidated Rail Corp., 99
F.3d 782, 789-92 (6th Cir. 1996) (en
banc) (in affirming a district court’s
denial of a jury’s award of punitive
damages to a plaintiff under sec. 504 of
the Rehabilitation Act, the Sixth Circuit
concluded that sec. 504 does not provide
a punitive damages remedy); see also Rein
v. Socialist People’s Libyan Arab
Jamahiriya, 162 F.3d 748, 762 (2d Cir.
1998). We thus decline to exercise
pendent appellate jurisdiction over this
issue. See Crymes v. Dekalb County,
Georgia, 923 F.2d 1482, 1485 (11th Cir.
1991) (declining to extend pendent
appellate jurisdiction to the "nonfinal"
issue of the district court’s denial of
appellants’ motion to dismiss a punitive
damages claim).
The remaining issues properly raised in
this collateral order appeal are whether
the Eleventh Amendment bars Cherry’s EPA
and Title IX claims. We "review de novo a
district court’s judgment on whether to
dismiss a claim on Eleventh Amendment
immunity grounds." MCI Telecommunications
Corp. v. Illinois Bell Telephone Co., 222
F.3d 323, 337 (7th Cir. 2000).
The Board argues, however, that pursuant
to Vermont Agency of Natural Resources v.
U.S. ex rel. Stevens, 529 U.S. 765
(2000), we should avoid the immunity
issues and dismiss Cherry’s claims "on
non-constitutional grounds." In support
of its contention, the Board claims that

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Title VII precludes Cherry’s EPA and
Title IX claims, and thus that we should
dismiss Cherry’s claims on that ground
instead of addressing whether the
Eleventh Amendment bars Cherry’s claims.
In Vermont Agency, the Supreme Court
determined that when a statute provides
no indication that it "permits the cause
of action it creates to be asserted
against States," it is appropriate for
the court to first make that statutory
determination before conducting an
Eleventh Amendment inquiry. Id. at 779;
see Floyd v. Thompson, 227 F.3d 1029,
1035 (7th Cir. 2000). The Court concluded
in Vermont Agency that because the False
Claims Act ("FCA") provides no indication
that States are subject to its penalties,
the Court could resolve the case with
that statutory determination without
considering the issue of immunity. 529
U.S. at 787. But in this case, if it
appears "in any way possible" for Cherry
to sue the State under the EPA and Title
IX, "then Vermont Agency indicates we
should resolve the Eleventh Amendment
issue first." Floyd, 227 F.3d at 1035.
The Board’s argument is unavailing
because unlike the FCA, the EPA and Title
IX permit suits against the States. See
Varner v. Illinois State University, 226
F.3d 927, 930 n. 1 (7th Cir. 2000) (29
U.S.C. sec. 216(b) authorizes private
suits against the States to enforce the
EPA) (citing Kimel v. Florida Board of
Regents, 528 U.S. 62, 73 (2000)); see
also 42 U.S.C. sec. 2000d-7(a)(1) (States
are not immune from suit under Title IX).
Thus, we must resolve the Eleventh Amend
ment issues raised in this appeal. See
Floyd, 227 F.3d at 1035.
A. The EPA Claim
The Board argues that the Eleventh
Amendment bars Cherry’s EPA claim. The
Eleventh Amendment provides:
The 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, or
by Citizens or Subjects of any Foreign
State.
U.S. Const. amend. XI. According to the
Amendment, non-consenting States may not
be sued by private individuals in federal

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court. Board of Trustees of the
University of Alabama v. Garrett, 531
U.S. 356. 121 S.Ct. 955, 962 (2001). But
this "immunity from suit is not
absolute." College Savings Bank v.
Florida Prepaid Postsecondary Education
Expense Board, 527 U.S. 666, 670 (1999).
The Supreme Court has recognized "that
Congress may abrogate the States’
Eleventh Amendment immunity when it both
unequivocally intends to do so and
’act[s] pursuant to a valid grant of
constitutional authority.’" Garrett, 121
S.Ct. at 962 (quoting Kimel, 528 U.S. at
73). The Court has held that the Eleventh
Amendment is limited by the enforcement
provisions of sec. 5 of the Fourteenth
Amendment, and that Congress may subject
non-consenting States to suit in federal
court pursuant to a valid exercise of its
sec. 5 power. Garrett, 121 S.Ct. at 962.
Accordingly, the EPA can apply to the
States only to the extent that the
statute is appropriate sec. 5
legislation. Id.
The Fourteenth Amendment provides, in
relevant part:
Section 1. . . . No State shall make or
enforce any law which shall abridge the
privileges or immunities of citizens of
the United States; nor shall any State
deprive any person of life, liberty, or
property, without due process of law; nor
deny to any person within its
jurisdiction the equal protection of the
laws.
. . . .
Section 5. The Congress shall have power
to enforce, by appropriate legislation,
the provisions of this article.
U.S. Const. amend. XIV; Kimel, 528 U.S.
at 80. Section 5 grants Congress the
power to "enforce the substantive
guarantees contained in sec. 1 by
enacting ’appropriate legislation.’"
Garrett, 121 S.Ct. at 963. Hence,
Congress determines what legislation is
necessary to secure the guarantees of the
Fourteenth Amendment, and "its
conclusions are entitled to much
deference." City of Boerne v. Flores, 521
U.S. 507, 536 (1997). Pursuant to sec. 5,
Congress has the authority to remedy and
deter violations of rights guaranteed
under the Fourteenth Amendment "’by

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prohibiting a somewhat broader swath of
conduct, including that which is not
itself forbidden by the Amendment’s text.’"
Garrett, 121 S.Ct. at 963 (quoting Kimel,
528 U.S. at 81).
Nevertheless, the Supreme Court has also
recognized that sec. 5 grants Congress
the power to enforce the Fourteenth
Amendment, not the power "’to determine
what constitutes a constitutional violation.’"
Kimel, 528 U.S. at 81(quoting City of
Boerne, 521 U.S. at 519). It is the
responsibility of the Supreme Court, not
Congress, to define the substance of
constitutional guarantees. Garrett, 121
S.Ct. at 963. In other words, Congress
can enact legislation to remedy or
prevent conduct that violates the
Fourteenth Amendment, but Congress cannot
redefine or expand the substance of the
Fourteenth Amendment itself. Thus, there
must be a "’congruence and
proportionality between the injury to be
prevented or remedied and the means
adopted to that end.’" Kimel, 528 U.S. at
81 (quoting City of Boerne, 521 U.S. at
520). This means that Congress must
carefully tailor its legislation so that
it enforces the Fourteenth Amendment
without altering the Amendment’s meaning.
But the Court has acknowledged that
because it is "often difficult" to
identify whether a statute "constitutes
appropriate remedial legislation, or
instead effects a substantive
redefinition of the Fourteenth Amendment
right at issue," Kimel, 528 U.S. at 81,
Congress "’must have wide latitude in
determining where [that line] lies.’" Id.
(quoting City of Boerne, 521 U.S. at
520).
In applying the "congruence and
proportionality" test to a federal
statute, the Supreme Court has examined
the scope of the statute to determine
whether it is consistent and compatible
with the Fourteenth Amendment, or whether
it essentially expands the Amendment by
prohibiting more State action than would
be unconstitutional. City of Boerne, 521
U.S. at 532; Florida Prepaid
Postsecondary Education Expense Board v.
College Savings Bank, 527 U.S. 627, 646-
47 (1999); Kimel, 528 U.S. at 86;
Garrett, 121 S.Ct. at 963. The Court has
also considered whether Congress
identified in the legislative record a
pattern of unconstitutional conduct by

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the States (that was targeted by the
statute at issue) in order to determine
whether the statute is a proportional
response to unconstitutional State
action. City of Boerne, 521 U.S. at 530;
Florida Prepaid, 527 U.S at 640; see also
Kimel, 528 U.S. at 88; Garrett, 121 S.Ct.
at 964. But the Court has stated that the
lack of support in the legislative record
"is not determinative of the sec. 5
inquiry." Kimel, 528 U.S. at 91; Florida
Prepaid, 527 U.S at 646; see also City of
Boerne, 521 U.S. at 532. Such evidence
tends to ensure that Congress’ means are
appropriate under sec. 5 when the statute
in question pervasively prohibits
constitutional State action. See City of
Boerne, 521 U.S. at 533.
In four recent cases, the Supreme Court
has held that Congress exceeded its sec.
5 enforcement powers. In each case, the
Court found that the statute in question
prohibited substantially more State
action than would be unconstitutional.
See City of Boerne, 521 U.S. at 532-34
(the restrictions of the Religious
Freedom Restoration Act ("RFRA") far
exceed any pattern or practice of
unconstitutional conduct by the States
under the Free Exercise Clause); Florida
Prepaid, 527 U.S at 646-47 (under the
Patent Remedy Act, an unlimited range of
State conduct would expose a State to
claims of patent infringement); Kimel,
528 U.S. at 86 (the Age Discrimination in
Employment Act ("ADEA") prohibits
substantially more state employment
decisions and practices than would likely
be held unconstitutional); Garrett, 121
S.Ct. at 967 (the Americans with
Disabilities Act ("ADA") imposes
restrictions that far exceed those of the
Fourteenth Amendment’s Equal Protection
Clause). The Court also concluded in each
case that Congress had not identified in
the legislative record a pattern of
unconstitutional conduct by the States
that was targeted by the statutes. See
City of Boerne, 521 U.S. at 530 (RFRA’s
legislative record lacks examples of
modern instances of generally applicable
laws passed because of religious
bigotry); Florida Prepaid, 527 U.S. at
640 ("In enacting the Patent Remedy Act,
however, Congress identified no pattern
of patent infringement by the States, let
alone a pattern of constitutional
violations."); Kimel, 528 U.S. at 89 ([In
enacting the ADEA], "Congress never

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identified any pattern of age
discrimination by the States, much less
any discrimination whatsoever that rose
to the level of constitutional
violation."); Garrett, 121 S.Ct. at 966
("Congress’ failure to mention States in
its legislative findings addressing
discrimination in employment reflects
that body’s judgment that no pattern of
unconstitutional state action had been
documented.").
In Varner v. Illinois State University,
150 F.3d 706 (7th Cir. 1998) ("Varner
I"), this court affirmed a district
court’s finding that Congress validly
abrogated the States’ Eleventh Amendment
immunity through its passage of the EPA.
On writ of certiorari to the Supreme
Court, the Varner I decision was vacated
and remanded for further consideration in
light of the Court’s intervening decision
in Kimel, in which the Court held that
the ADEA was not a valid exercise of
Congress’ power under sec. 5 of the
Fourteenth Amendment. Kimel, 528 U.S. at
91; Varner v. Illinois State University,
226 F.3d 927, 929 (7th Cir. 2000), cert.
denied, 121 S.Ct. 2241 (2001) ("Varner
II"). After considering Kimel, this court
issued Varner II in which it upheld the
holding of Varner I that Congress validly
abrogated the States’ immunity from EPA
claims. Varner II, 226 F.3d at 937.
Subsequent to Varner II, the Supreme
Court issued Board of Trustees of the
University of Alabama v. Garrett, 121
S.Ct. 955 (2001), in which the Court held
that Congress failed to validly abrogate
the States’ immunity from claims under
the ADA./2 In support of the Board’s
immunity claim, it argues that Garrett
conflicts with Varner II, and thus that
the Eleventh Amendment bars Cherry’s EPA
claim.
In Varner II, this court first noted
that the Equal Pay Act "prohibits
discrimination in wages based on gender,"
226 F.3d at 932, and that a plaintiff may
establish a prima facie case under the
EPA by demonstrating that she received
"unequal pay for ’equal work on jobs the
performance of which requires equal
skill, effort, and responsibility, and
which are performed under similar working
conditions.’" Id. (quoting 29 U.S.C. sec.
206(d)(1)). Thus, an employee may
establish a prima facie case of gender

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discrimination under the EPA without
showing discriminatory intent. Varner II,
226 F.3d at 932. In that sense (the court
acknowledged in Varner II) the EPA is
unlike the Fourteenth Amendment, which
requires a showing of the employer’s
discriminatory intent, and thus the EPA
does "not perfectly mirror the
Constitution’s prohibition on gender
discrimination." Id. But the court also
noted that once an employee has met her
burden of showing unequal pay for equal
work, an employer may avoid liability
under the Act by proving that the wage
disparity exists pursuant to "’a
differential based on any other factor
other than sex.’" Id. (quoting 29 U.S.C.
sec. 206(d)(1)). Because the EPA allows
an employer to avoid liability under the
Act by proving that the wage disparity in
question exists pursuant to "any other
factor other than sex," Varner II
emphasized that the EPA provides a broad
exemption from liability for any employer
who can provide a neutral explanation for
a disparity in pay. 226 F.3d at 934.
Thus, the court concluded that the scope
of the EPA is congruent to the Fourteenth
Amendment because, like the Fourteenth
Amendment, the EPA effectively targets
only "employers who intentionally
discriminate against women." Id.
The court also stressed in Varner II an
important difference between the ADEA and
the EPA. The court noted that in Kimel,
the Supreme Court recognized that the
ADEA targets age-based classifications
which, according to the Court’s Equal
Protection jurisprudence, are subject to
the minimal "rational basis review"
standard. Varner II, 226 F.3d at 934;
Kimel, 528 U.S. at 84. According to that
standard, a State may discriminate on the
basis of age without offending the
Fourteenth Amendment if the age
classification is rationally related to a
legitimate State interest. Kimel, 528
U.S. at 84. Thus, the Constitution
permits States to pursue a broad range of
policies that discriminate on the basis
of age as long as such policies are
reasonably related to a legitimate
government purpose. See id. at 83-85. But
unlike the ADEA, the EPA targets gender-
based classifications which are "afforded
heightened scrutiny," which means that
they are presumed to be unconstitutional
unless the State can demonstrate "an
exceedingly persuasive justification" for

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them. Varner II, 226 F.3d at 934. As the
Supreme Court recognized in Kimel, in
comparison with classifications subject
to rational basis review, "when a State
discriminates on the basis of race or
gender, we require a tighter fit between
the discriminatory means and the
legitimate ends they serve." 528 U.S. at
84. Thus, Varner II recognized that while
the ADEA prohibits substantially more
State employment practices than those
prohibited by the Constitution, the EPA
"prohibits very little constitutional
conduct." Id. at 935.
The defendants in Varner II argued that
because the EPA lacks legislative
findings of a pattern of unconstitutional
State action, abrogation is not
justified. Id. The court acknowledged
that although a review of the legislative
record can be instructive, a lack of
support in the record "is not
determinative of the sec. 5 inquiry." Id.
(quoting Kimel, 528 U.S. at 91). This,
the court noted, is especially true with
the EPA, "where the value of
congressional findings is greatly
diminished by the fact that the Act
prohibits very little constitutional
conduct," and where "the historical
record clearly demonstrates that gender
discrimination is a problem that is
national in scope." Varner II, 226 F.3d
at 935. Thus, while the EPA "is devoid of
any explicit findings as to the problem
of gender discrimination by the States,"
id., Varner II emphasized that when the
EPA was extended to the States, "Congress
had developed a clear understanding of
the problem of gender discrimination on
the part of States" through its passage
of legislation such as Title IX, and
through the extension of Title VII to
State employers. Id.; see also id.
(quoting Fullilove v. Klutznick, 448 U.S.
448, 503 (1980) (Powell, J., concurring)
("’After Congress has legislated
repeatedly in an area of national
concern, its Members gain experience that
may reduce the need for fresh hearings or
prolonged debate when Congress again
considers action in that area.’")). The
court concluded that this evidence, along
with the "well-documented history of
gender discrimination in this Nation," is
sufficient to support the limited action
taken by Congress in its passage of the
EPA. Varner II, 226 F.3d at 936.

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After Varner II, the Supreme Court
issued Garrett. 121 S.Ct. 955. In
Garrett, the Court first determined
whether the scope of the ADA is congruent
with the Fourteenth Amendment’s Equal
Protection Clause. Id. at 963. The Court
recognized that disability is a
classification that (like age) is subject
to "rational-basis review," id. at 963,
which means that State policies that
involve classifications based on
disability are constitutional if there is
a rational relationship between the
disparity in treatment and some
legitimate government purpose. Id. at
964. Thus, the ADA’s prohibition of
disability discrimination far exceeds
what is required under the Fourteenth
Amendment. Id. at 966. After determining
the "metes and bounds" of the ADA, the
Court examined "whether Congress
identified a history and pattern of
unconstitutional employment
discrimination by the States against the
disabled." Id. at 964. The Court
considered a half-dozen examples of
disability discrimination in the record,
but determined that even if those
incidents involved irrational (and thus
unconstitutional) action by the States,
"these incidents taken together fall far
short of even suggesting the pattern of
unconstitutional discrimination on which
sec. 5 legislation must be based." Id. at
965. The Court also reviewed other
accounts in the legislative record of
adverse treatment by the States. But the
Court noted that adverse treatment under
the ADA does not necessarily mean
irrational treatment that violates the
Fourteenth Amendment, and that these
accounts were not submitted directly to
Congress but to a task force that "made
no findings on the subject of state
discrimination in employment." Id. at
966. The Court recognized that Congress
made no mention of a pattern of
unconstitutional behavior by the States
in the ADA’s legislative findings. Id.
But the Court in Garrett went on to
explain that even "were it possible to
squeeze out of these examples a pattern
of unconstitutional discrimination by the
States," such a record would not make the
ADA congruent and proportional to the
Fourteenth Amendment, precisely because
the ADA’s requirements far exceed what is
constitutionally required. Id. Thus, the
Supreme Court concluded that Congress did

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not validly abrogate the States’ immunity
from ADA claims. Id. at 968.
In this case, the Board contends that
according to Garrett, "no abrogation of
States’ immunity against federal
statutory claims is valid without express
findings in the statute itself, grounded
in sufficient legislative record
evidence, that States had engaged in a
pattern and practice of committing
unconstitutional conduct of the type
being prohibited by that statute."
According to the Board, because the EPA
is devoid of any explicit findings of
gender discrimination by the States,
Congress failed to validly abrogate the
States’ immunity from the EPA, and thus
the Garrett analysis requires us to
dismiss Cherry’s EPA claim.
The Board’s immunity argument is
unavailing. There is no indication in
Garrett that the Court established a new,
bright-line rule that Congress’ attempt
to abrogate immunity from a federal
statute is invalid if the statute lacks
specific findings that the States had
engaged in a pattern of unconstitutional
conduct of the type prohibited by the
statute. Garrett does not refute that the
"lack of legislative support in the
record is not determinative of the sec. 5
inquiry." Kimel, 528 U.S. at 91; see also
Florida Prepaid, 527 U.S at 646; City of
Boerne, 521 U.S. at 532. All Garrett does
is further demonstrate that the
legislative record is an important factor
when the statute in question pervasively
prohibits constitutional State action.
See Garrett, 121 S.Ct. at 965-66; City of
Boerne, 521 U.S. at 533. Because the
ADA’s protections extend substantially
beyond those of the Fourteenth Amendment,
the Garrett Court examined the
legislative record for evidence of a
pattern of unconstitutional State action
that may justify abrogation. Finding no
such evidence, the Court determined that
abrogation was invalid. But unlike the
statutes at issue in City of Boerne,
Kimel, Florida Prepaid, and Garrett, all
of which pervasively prohibit
constitutional State action, the EPA
"prohibits very little constitutional
conduct." Varner II, 226 F.3d at
935.Precisely because the EPA essentially
targets only unconstitutional gender
discrimination, the importance
ofcongressional findings of

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unconstitutional State action is "greatly
diminished." Varner II, 226 F.3d at 935.
Thus, we decline to overrule this court’s
decision in Varner II, as the record of
gender discrimination identified in that
case was sufficient to support the
conclusion that Congress validly
exercised its authority under sec. 5 of
the Fourteenth Amendment when it extended
the EPA to cover gender-based wage
discrimination on the part of State
employers.
B. The Title IX Claim
The Board also argues that it is immune
from Cherry’s Title IX claim. According
to the Board, even though it is a
recipient of federal funds under Title
IX, it has not waived its immunity from
suits under Title IX by accepting those
funds.
Congress enacted Title IX pursuant to
its authority under the Spending
Clause./3 Davis v. Monroe County Board
of Education, 526 U.S. 629, 640 (1999).
Title IX provides, with certain
exceptions not at issue here, that "’[n]o
person in the United States shall, on the
basis of sex, be excluded from
participation in, be denied the benefits
of, or be subjected to discrimination
under any education program or activity
receiving Federal financial assistance.’"
Id. at 638 (quoting 20 U.S.C. sec.
1681(a)). Congress enacted Title IX with
two principal objectives in mind: "’[T]o
avoid the use of federal resources to
support discriminatory practices’ and ’to
provide individual citizens effective
protection against those practices.’"
Gebser v. Lago Vista Independent School
District, 524 U.S. 274, 286 (1998)
(quoting Cannon v. University of Chicago,
441 U.S. 677, 704 (1979)).
Although Congress can abrogate the
States’ immunity when it legislates
pursuant to the Fourteenth Amendment,
Congress cannot override the States’
immunity using an Article I power such as
Spending Clause legislation. See Garrett,
121 S.Ct. at 962 (citing Seminole Tribe
of Florida v. Florida, 517 U.S. 44, 72-73
(1996)). But the Supreme Court has
recognized that federal funds under Title
IX are "gifts" to the States, College
Savings Bank, 527 U.S. at 687. Therefore
Congress may, in its exercise of its

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spending power, condition its grant of
funds to the States on their consent to
waive their immunity from suit. See id.
at 686; MCI, 222 F.3d at 344; see also
Pennhurst State School and Hospital v.
Halderman, 451 U.S. 1, 17 (1981)
("Turning to Congress’ power to legislate
pursuant to the spending power, our cases
have long recognized that Congress may
fix the terms on which it shall disburse
federal money to the States."). According
to the Supreme Court, "legislation
enacted pursuant to the spending power is
much in the nature of a contract: in
return for federal funds, the States
agree to comply with federally imposed
conditions." Pennhurst, 451 U.S. at 17;
Davis, 526 U.S. at 640; see also MCI, 222
F.3d at 344 ("States may waive their
immunity by accepting a benefit from
Congress that has conditions attached to
that acceptance."). Thus, a State may
waive its immunity from Title IX suits by
accepting federal funds under the
statute. MCI, 222 F.3d at 344 (citing
College Savings Bank, 527 U.S. at 686-
87).
However, the "mere receipt of federal
funds cannot establish that a State has
consented to suit in federal court."
Atascadero State Hospital v. Scanlon, 473
U.S. 234, 246-47 (1985). Congress must
manifest "a clear intent to condition
participation in programs funded under
[Title IX] on a State’s consent to waive
its constitutional immunity." Id. at 247.
If Congress intends to require the States
to waive their immunity from Title IX
suits in exchange for their receipt of
Title IX funds, Congress "must speak with
a clear voice," and do so
"unambiguously," in order to "enable the
States to exercise their choice
knowingly, cognizant of the consequences
of their participation." Pennhurst, 451
U.S. at 17. Thus, the "test for
determining whether a State has waived
its immunity from federal-court
jurisdiction is a stringent one."
Atascadero, 473 U.S. at 241.
In this case, the Board contends that
Congress has not made a clear statement
of its intent to condition the State’s
receipt of Title IX funds on the State’s
consent to waive its immunity. In support
of its contention, the Board argues that
because Title IX does not expressly
provide for a private cause of action

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against the State, Congress has never
properly notified the Board that it must
surrender its immunity from Title IX
suits in exchange for its receipt of
Title IX funds.
The Board’s argument fails because
Congress has unambiguously conditioned
the States’ receipt of Title IX funds on
their waiver of Eleventh Amendment
immunity from private causes of action.
Although Title IX does not expressly
provide for a private right of action,
the Supreme Court has recognized since
1979 an implied private right of action
under the statute. Cannon, 441 U.S. at
717; Davis, 526 U.S. at 639. Subsequently
in 1986, Congress enacted 42 U.S.C. sec.
2000d-7(a), the Civil Rights Remedies
Equalization Act ("CRREA"), which
provides in relevant part:
(1) 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 [20
U.S.C. sec. 1681 et seq.], . . . or the
provisions of any other Federal statute
prohibiting discrimination by recipients
of Federal financial assistance.
42 U.S.C. sec. 2000d-7(a)(1). Congress
enacted the CRREA "with full cognizance"
of the holding in Cannon that Title IX
can be enforced by a private right of
action. Franklin v. Gwinnett County
Public Schools, 503 U.S. 60, 72 (1992);
see also id. (42 U.S.C. sec. 2000d-7
"cannot be read except as a validation of
Cannon’s holding."); see also Cannon, 441
U.S. at 696-97 ("It is always appropriate
to assume that our elected
representatives, like other citizens,
know the law."). Moreover, the Supreme
Court has recognized that Congress
carefully crafted the CRREA as "an
unambiguous waiver of the States’
Eleventh Amendment immunity." Lane v.
Pena, 518 U.S. 187, 200 (1996); see also
id. at 198 (in enacting the CRREA,
"Congress sought to provide the sort of
unequivocal waiver that our precedents
demand."). And subsequent to the CRREA,
the Court established that monetary
damages are available to Title IX
plaintiffs. Franklin, 503 U.S. at 76;
Davis, 526 U.S. at 639. In short, when
the Board accepted federal education
funds under Title IX, it was clearly put

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on notice that it may not discriminate in
its programs on the basis of sex, 20
U.S.C. sec. 1681(a); that if it does
discriminate on the basis of sex, it may
be sued by a private individual, see
Davis, 526 U.S. at 639; and that in any
such suit, the Board may not assert its
Eleventh Amendment immunity, 42 U.S.C.
sec. 2000d-7(a). See Litman v. George
Mason University, 186 F.3d 544, 553 (4th
Cir. 1999). Clearly, the Board was able
"to ascertain what is expected of it" in
return for Title IX funds. Pennhurst, 451
U.S. at 17. Thus, we agree with the
Fourth and Fifth Circuits that by
enacting 42 U.S.C. sec. 2000d-7(a),
Congress clearly and unambiguously
manifested its intent to condition the
States’ receipt of Title IX funds on
their waiver of immunity from suit. See
Litman, 186 F.3d at 555; Pederson v.
Louisiana State University, 213 F.3d 858,
876 (5th Cir. 2000). In accepting Title
IX funding, the Board has waived its
immunity from Cherry’s Title IX claim.
III.
The Board is not immune from Cherry’s
EPA claim because Congress validly
exercised its authority under sec. 5 of
the Fourteenth Amendment when it extended
the EPA to cover wage discrimination on
the part of State employers like the
Board. Nor is the Board immune from
Cherry’s Title IX claim because Congress
clearly and unambiguously manifested its
intent to condition the Board’s receipt
of Title IX funds on its waiver of
immunity, and in accepting such funding
the Board has effectively waived its
immunity from suit under Title IX.
Accordingly, we AFFIRM the district court.
FOOTNOTES
/1 Cherry did not assert a claim under Title VII.
/2 Because Garrett was issued after oral argument in
this case, we ordered the parties to submit
supplemental briefs on the issue of whether
Cherry’s EPA claim is barred by Wisconsin’s
Eleventh Amendment immunity in light of Garrett.
/3 The Spending Clause provides in part: "The Con-
gress shall have Power To lay and collect Taxes
. . . to . . . provide for the . . . general
Welfare of the United States." U.S. Const. art.
I, sec. 8, cl. 1.

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